



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Stone, 2020 ONCA 448

DATE: 20200706

DOCKET: M51526 (C67905)

Juriansz J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

John Paul Stone

Applicant

Margaret Osadet, for the applicant

Lisa Fineberg, for the respondent

Heard: July 3, 2020 by videoconference

Juriansz J.A.:

Overview

[1]

On a 19-count indictment, the applicant pled
    guilty to four offences, including the offences of invitation to sexual
    touching, contrary to s. 152 (count 7) and sexual interference contrary to s. 151
    (count 16), under the
Criminal Code
,
R.S.C., 1985, c. C-46. The
    other two offences were trafficking a substance included in Schedule 1
    (methamphetamine), contrary to s. 5(1) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19 (counts 18 and 19).

[2]

The parties filed an Agreed Statement of Facts in
    relation to the four counts on the understanding the court would hear evidence
    about disputed facts pursuant to ss. 723 and 724 of the
Code
. The
    Crown called eight witnesses and the defence called two witnesses. Based on the
    Agreed Statement of Facts and his findings on the evidence beyond a reasonable doubt,
    the sentencing judge described the applicants offences as a toxic mixture of
    sustained trafficking in methamphetamine to numerous adults and children, over
    prolonged periods of time, with clear evidence that the trafficking to children
    was used as a means of grooming and facilitating sexual abuse in relation to
    those children.

[3]

The sentencing judge imposed a global sentence
    of six years in custody. He thought it appropriate to impose higher sentences on
    the trafficking counts than on the sexual counts because the more pervasive methamphetamine
    trafficking activity  essentially formed the manipulative platform or tool
    used by Mr. Stone to enable his perpetration of repetitive sexual misconduct in
    relation to his numerous young victims. He imposed custodial sentences of
    three years on each of the trafficking convictions, 20 months on the invitation
    to sexual touching conviction, and 22 months on the sexual interference
    conviction. The trafficking sentences were made consecutive to each other because
    they stemmed from two non-overlapping periods of trafficking. The sexual
    counts were made consecutive to each other as they occurred at different times
    and involved different victims. Each sentence for a sexual conviction was made
    concurrent to the trafficking conviction in the corresponding time frame. This
    resulted in a six year global sentence.

[4]

The applicant seeks leave to appeal sentence and
    applies for release pending that appeal.

[5]

The Crown did not oppose granting leave to
    appeal sentence. Leave to appeal sentence is granted.

[6]

Counsel for the applicant submits that the sentencing
    judge did not take into appropriate consideration the prolonged sexual abuse
    that the applicant had suffered earlier in life, and that all sentences should
    be concurrent rather than consecutive.

[7]

The submission counsel presses most strenuously is
    that the applicant should be granted release because of the COVID-19 pandemic.
    She has filed a lengthy affidavit from Dr. Aaron Orkin, an expert
    epidemiologist, who outlines the risks for the spread of COVID-19 in congregate
    facilities such as jails. Dr. Orkin sets out data showing that the prevalence
    of COVID-19 in Ontario correctional institutes is several magnitudes higher
    than the prevalence in the general population. He does not set out the equivalent
    data for federal institutions. He explains that jails are in the category of what
    he terms not fully voluntary congregate settings (NFVCS). He accepts that
    NFVCS remain in operation because of their socially essential function. However,
    he states that from a public health perspective it is preferable to depopulate
    and decongregate these settings rather than resort to secondary mitigation
    strategies. He points out that every admission prevented, and every resident
    discharged or released, is an opportunity to flatten the curve and improve
    health for the individual involved, other inmates in the facility in question,
    staff at the facility in question, and the public. Dr. Orkin also foresees a second
    wave of outbreaks in correctional facilities in the future should mitigation
    measures be relaxed without reducing populations.

[8]

Dr. Orkin acknowledges his perspective is from a
    medical and population health perspective and that [a] judicial official  deciding
    whether or not to detain somebody will take various factors into account, and
    will have to balance public health and individual safety against factors
    outside of [his] area of expertise in determining what is in the communitys best
    interest.

Analysis

[9]

Section 679(4) of the
Code
sets out
    three criteria of which the applicant must satisfy the court on a balance of
    probabilities to obtain release pending appeal:

(a)
the appeal has sufficient merit that, in the circumstances, it
    would cause unnecessary hardship if he were detained in custody;

(b)
he will surrender himself into custody in accordance with the
    terms of the order; and

(c)
his detention is not necessary in the public interest.

(1)

Section 679(4)(a)

[10]

The legal test of unnecessary hardship under
    s. 679(4)(a) depends on the likelihood the applicant would spend more time in
    custody than his sentence is ultimately determined to be, considering the
    merits of the appeal:
R. v. Hassan
, 2017 ONCA 1008, at para. 33.

[11]

I see little merit in the appeal. The sentencing
    judge discussed at length the reality that [the applicant] himself is the
    victim of devastating prolonged and horrific sexual abuse. It was up to him to
    weigh that circumstance. As well, there is no error in principle in the
    sentencing judges reasons for imposing consecutive sentences for the trafficking
    offences and for the sexual offences. The applicant supplied methamphetamine to
    17 different identifiable individuals over two distinct time periods, two of
    whom were the complainants in the
Criminal Code
offences. The applicant
    concedes that the global sentence was within the sentencing range for those
    offences.

[12]

In my view, there is little prospect that the
    appeal will result in the appellant spending more time in custody than his
    sentence is ultimately determined to be. My view is that the appeal, even if
    successful, would be determined before the term he must ultimately serve has
    expired.

(2)

Section 679(4)(b)

[13]

The Crown pointed out that in 2017 the applicant
    had been charged with failing to attend court and that the charge was withdrawn
    when he pled guilty to other charges. However, she did not press the
    application of s. 679(4)(b). I am satisfied that the applicant has met his onus
    on this ground.

(3)

Section 679(4)(c)

[14]

It is in the public interest that the spread of
    COVD-19 in correctional institutions be minimized. The current COVID-19
    pandemic is a factor that is to be considered in assessing the public interest
    criterion:
R. v. Omitiran
, 2020 ONCA 261, at para. 26;
R. v. Jesso
,
    2020 ONCA 280, at para. 36.

[15]

That said, the primary responsibility for the
    safety of inmates in federal correctional institutions lies with the federal government
    and Corrections Canada. The applicant points out that the Honourable Bill
    Blair, Minister of Public Safety and Emergency Preparedness, on March 31, 2020,
    recommended that the Superintendent of Prisons and the Head of the Parole Board
    consider releasing inmates. The Superintendent and the Parole Board may have
    resort to special powers to grant early parole to inmates whose release will
    not pose an undue risk to the public.

[16]

In contrast to the comprehensive perspective
    Corrections Canada may take, the focus of a court is necessarily solely on the
    individual case before it and the administration of the law (in this case, s.
    679(4) of the
Criminal Code
).

[17]

The fact is that the applicant has been
    sentenced to six years in custody in a federal penitentiary. Being on release
    for a few months now will not change the fact he must serve his sentence and may
    be serving it during the second wave of COVID-19 that Dr. Orkin foresees,
    should it occur.

[18]

In this case, the applicant is in custody at Bath
    Institution where no inmate has tested positive to date. The applicant is diabetic
    and a former smoker and says he is especially vulnerable to the virus. He
    attributes his high sugar levels to being incarcerated. The Crown has introduced
    evidence that he has consistently been purchasing from the canteen a high
    number of products high in carbohydrates such as pop, cookies, swiss rolls, and
    Fudgee-O cookies. The evidence does not satisfy me the applicants high sugar
    levels are attributable to his incarceration.

[19]

If, in the future, there is an outbreak of
    COVID-19 at Bath Institution, it will up to the prison authorities to take
    appropriate measures to ensure the health and safety of those who are
    incarcerated or work in the institution, as well as of the general public.

[20]

In this individual case, the applicant has not satisfied
    me that his detention is not necessary in the public interest. In addition to
    the considerations noted above, the evidence shows that the applicant has
    previously breached recognizances, breaches that involved the use of drugs,
    access to a computer and the Internet and child pornography. Troubling is the
    sentencing judges finding the applicant has no insight into his sexual
    preference for prepubescent and pubescent individuals. His plan of release is
    weak, proposing his spouse as surety, and that he be released to live with her.
    As noted, the applicant has committed offences while on bail before, albeit not
    with his spouse as surety. The acts for which he has been sentenced are serious
    crimes against children.

Disposition

[21]

Having considered all the applicants
    submissions including those relating to COVID-19, I am not satisfied the test
    for granting release pending appeal is met. The application for release pending
    the appeal is dismissed. I order the preparation of the transcripts, if
    necessary, and the appeal to be expedited. The parties may arrange an expedited
    date with the Courts Appeal Scheduling Unit.

R.G.
    Juriansz J.A.


