



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. L.D., 2021 ONCA 786

DATE: 20211103

DOCKET: M52884/C69894

Trotter J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

L.D.

Applicant/Appellant

Michael Crystal, for the applicant/appellant

Manasvin Goswami, for the respondent

Heard: October 29, 2021 by video conference

REASONS FOR DECISION

[1]

After a trial in the Ontario Court of Justice, the applicant was
    convicted of sexual assault (
Criminal Code
, R.S.C. 1985, c. C-46, s.
    271), uttering death threats (s. 264.1), and breaching a release order (s.
    145). He was sentenced to three and a half years imprisonment.

[2]

The applicant seeks bail pending appeal. For the following reasons, the
    application is dismissed.

Background

[3]

The applicant was found guilty of sexually assaulting his former
    intimate partner. Although they had broken off their relationship, they
    remained in contact. They shared the same bed when the offences took place. The
    victim said that she awoke to find the appellant penetrating her vagina. The
    appellant then moved himself towards the victims face and ejaculated in her
    mouth.

[4]

The next day, the victim was on the phone with a male friend. The
    applicant was angry because a bail condition prohibited him from having a
    phone. When the victim said, Its not my fault  that youre not allowed a
    phone, he became angry and started punching himself in the temple area. He
    told the victim that he would tie up his mother and step-father and slit their
    throats; he also said he would slit the victims throat. At the time, the
    applicant was on bail while awaiting trial on charges of uttering threats,
    distributing intimate messages, and criminal harassment.

The Applicant

[5]

The applicant is 38 years old. He has an extensive criminal record.
    Excluding the offences for which he now seeks bail, the applicant has approximately
    40 convictions, including entries for sexual assault (x 1), uttering threats (x
    3), and criminal harassment (x 2). Most notably for bail purposes, he has 19
    convictions for breaching various types of court orders  release orders,
    probation orders, and a conditional sentence order.

The Release Plan

[6]

The applicant proposes a single surety  his new intimate partner. They
    have been together for over two years. The proposed surety is aware of the
    applicants most recent convictions. Although she was not his surety with
    respect to these offences, she swears that the applicant abided by all of his
    bail conditions when they were together. She also said: I have no concerns
    that if this court sees fit to release him, he will comply with all conditions
    imposed upon his release this time. I will be there to support him and to
    ensure that he complies with his conditions.

Grounds of Appeal

[7]

The applicant submits that the trial judge erred by admitting a
    statement the appellant gave to the police. The trial judge rejected the
    submission that the police breached the applicants rights under s. 10(b) of
    the
Charter
by denying him access to his counsel of choice. He submits
    that he should not have been forced into consulting with duty counsel when he
    had his own lawyer. The police should have allowed him more time to consult his
    counsel of choice.

Discussion

[8]

The criteria for bail pending appeal of a
    conviction are set out in s. 679(3) of the
Criminal Code
. An applicant must establish that: (a) the appeal is not frivolous;
    (b) he will surrender into custody in accordance with the terms of any bail
    order; and (c) detention is not necessary in the public interest.

(1)

Not Frivolous (s. 679(3)(a))

[9]

In
R. v. Oland
, 2017
    SCC 17, [2017] 1 S.C.R. 250, at para. 20, Moldaver J. said that the not
    frivolous test is widely recognized as being a very low bar. The Crown does
    not assert that the proposed ground of appeal is frivolous; instead, he submits
    that it is weak and, in any event, overcome by enforceability considerations in
    the public interest equation (s. 679(3)(c)). I agree that the appeal is not
    frivolous.

(2)

Surrender into Custody (s. 679(3)(b))

[10]

Despite
    the applicants many breaches of court orders, absconding does not appear to be
    a problem. The Crown does not submit otherwise. The applicant has met his onus
    on this criterion.

(3)

The Public Interest (s. 679(3)(c))

[11]

There
    are two components to public interest branch under s. 679(3)(c) of the
Criminal
    Code
 public safety and public confidence in the administration of
    justice. This bail application fails on public safety considerations.

[12]

As
    noted already, the applicants criminal record is extensive. The applicant has convictions
    for sexual assault and criminal harassment in relation to former intimate
    partners. This must be seen in the light of his track record for breaching
    court orders of various kinds. This is an important factor in gauging how the
    applicant can be expected to perform if released on bail pending appeal: see
R. v. S.H.
,
    2020 ONSC 4041, at para. 33. So too is the fact that the applicant was on bail
    when he committed the sexual assault in this case: see
R. v. Le
, 2006
    MBCA 68, 240 C.C.C. (3d) 130, at paras. 34-35.

[13]

Set
    against the applicants criminal history is the evidence of his proposed
    surety, being his new intimate partner. She observed no breaches during his
    time on bail, a factor that weighs in the applicants favour on this ground:
R.
    v. Walters
, 2020 ONCA 825, at para. 11.

[14]

Although
    the proposed surety has not witnessed any compliance problems, she was not his
    surety at the time. Like many good people willing to assume the important role
    of a surety, she has no track record in actually supervising the applicant. Her
    chances of success are considerably weakened by the applicants proven
    unwillingness or inability to comply with court orders.

[15]

In
    all of the circumstances, the applicant has failed to discharge his onus on
    this aspect of s. 679(3)(c). Given my finding on the public safety component of
    this ground, it is not strictly necessary to address public confidence
    considerations. However, I make the following observations.

[16]

I
    am not persuaded that reviewability interests ought to trump enforceability
    considerations in this case. The offence was serious. The trial judges
    thorough reasons for judgment demonstrate that, although there were
    inconsistencies between the applicants statement and his testimony, there were
    significant internal testimonial inconsistencies. The prospect of overturning
    his conviction on this basis seems doubtful.

[17]

Even
    if the applicant could establish a favourable balance between reviewability and
    enforceability considerations under s. 679(3)(c), this is one of those cases
    where residual public safety concerns prevent release:
Oland
, at
    para. 27.

Conclusion

[18]

The
    application is dismissed.

Gary Trotter J.A.


