



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. P.M.W., 2022 ONCA 75

DATE: 20220126

DOCKET: M53111 (C70112)

Sossin
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent/Responding Party

and

P.M.W.

Appellant/Moving Party

Christopher Rudnicki, for the moving
    party

Heather Fregeau,
    for the responding party

Heard: January 21, 2022 by video conference

REASONS
    FOR DECISION

[1]

The moving party was convicted of sexual
    assault, sexual interference, and invitation to sexual touching. He was
    sentenced to six years imprisonment on December 17, 2021.

[2]

The moving party sought bail pending appeal
    before Miller J.A. in December 2021. Miller J.A. denied that application
    on the basis that the applicants proposed release plan was weak. Miller J.A.s
    decision stipulated that it was without prejudice to the moving party bringing
    a subsequent motion for bail with a stronger release plan.

[3]

The moving party now seeks bail pending appeal
    based on revised conditions. The Crown once again opposes his application.

[4]

In order to succeed on an application for bail
    pending appeal, the moving party must establish, per
s. 679(3)
of the
Criminal
    Code
, R.S.C. 1985, c. C-46, that: a) the appeal is not frivolous; b) the
    applicant will surrender himself into custody in accordance with the terms of
    the release order; and c) the applicants detention is not necessary in the
    public interest: see
R. v. Oland
,
2017 SCC 17
, [2017] 1
    S.C.R. 250, at para.
19
.

[5]

The Crown concedes that the moving partys
    proposed grounds of appeal are not frivolous and that he does not pose a flight
    risk.

[6]

The basis of the Crowns opposition to bail is
    that the moving partys detention remains in the public interest.

[7]

For the reasons that follow, I deny the moving
    partys application for bail.

Is Bail in the Public Interest?

[8]

The public interest component of the
Oland
framework includes two aspects: public safety; and public confidence in the
    administration of justice.

A.

Public safety

[9]

At the first motion for bail pending appeal, Miller
    J.A. concluded that the moving partys plan of release was weak. Since that
    time, the moving party has revised the plan of release.

[10]

The parties have now agreed on the terms of an
    order which, if bail is granted, would include strict conditions such as restrictions
    on internet access, prohibitions on arranging for third parties to contact the
    complainant and her mother, and wearing an ankle monitoring device.

[11]

The moving party highlights the additional
    conditions in the draft order as stronger than the release plan before Miller
    J.A. on the prior motion. Additionally, the moving party has proposed a different
    surety, whose affidavit sets out his commitment to ensuring the moving party
    abides by the terms of the release plan.

[12]

While the moving party concedes the serious
    nature of the offences for which he has been convicted and his prior
    convictions for breaching court orders, he argues that none of these prior
    breaches involved threats of violence. The last breach for which he was
    convicted consisted of contacting his former spouse, the complainants mother, in
    2019 contrary to a probation order. That probation order arose from a 2019
    conviction for assault against his former spouse, uttering threats and
    breaching a recognizance.

[13]

Most recently, occurrence reports have been
    produced alleging that the moving party has arranged for gifts to be sent to his
    former spouse. While these occurrence reports have not yet resulted in charges,
    and should therefore be treated with caution, the moving party asserts that the
    risk to public safety posed by such breaches, even if established, is low.

[14]

The moving party relies on
R. v. Jaser,
2020 ONCA 606, 396 C.C.C. (3d) 230, where this court found that, in
    assessing the risk posed by a person seeking bail, the question is not simply
    whether that person will respect court orders, but also whether the potential
    of non-compliance with court orders includes a threat to public safety. As
    Doherty J.A. stated, at para. 67:

Not only must there be a substantial likelihood
    of committing an offence, that substantial likelihood must endanger the
    protection or safety of the public. It is one thing to conclude there is a
    significant risk Jaser would deceive his parents and breach curfew terms of a
    bail order, and another to conclude Jaser, motivated by a terrorist ideology,
    would seek out and participate in terrorist-related activity. The former may or
    may not compromise public safety. The latter clearly does.

[15]

In other words, the moving party argues that the
    assessment of risk should be undertaken with public safety in mind, and not
    simply based on whether the moving party is likely to comply with court orders
    or not.

[16]

The Crown argues that, based on the moving
    partys history of domestic assault and contacting his former family in breach
    of previous court orders, public safety requires his continued detention. The
    Crown underlines the evidence in the record showing both the harmful effects to
    which the moving partys unwanted contact has given rise, and the likelihood
    this conduct will continue if he is released given his history of
    non-compliance with court orders.

[17]

The Crown relies on
R. v. L.D.
, 2021
    ONCA 786, where this court denied a motion for bail pending appeal on the basis
    of public safety concerns. In his reasons, Trotter J.A. highlighted the fact
    that the surety proposed by the moving party had no track record with prior
    supervision, and the moving party in that case had a history of breaching court
    orders.

[18]

The Crown also cites
R. v. S.M.
, 2020
    ONCA 427. In that case, Paciocco J.A. concluded that even strict release
    conditions, such as house arrest and electronic monitoring, could not
    compensate for the risk posed by an offender who had committed serious offences
    and had a history of breaching court orders.

[19]

The cases raised by the moving party and the
    Crown are helpful, though in my view, none are determinative given the distinct
    circumstances of this case.

[20]

While
Jaser
involved very different
    facts and consideration of a different prong of the
Oland
test, the
    principle set out by Doherty J.A. in that case is apposite. On this record, while
    the moving partys prior breaches amount to far more harmful conduct than a
    breach of a curfew, he nonetheless poses a low risk of reoffending violently.

[21]

By contrast, both
L.D.
and
S.M.
involved breaches of court orders through violence, the threat of violence, or breaches
    affecting the administration of justice. In
L.D.
, the moving party had
    40 criminal convictions and 19 convictions for breaching court orders,
    including probation orders, release orders and conditional sentencing orders.
    As Trotter J.A. highlighted, the moving party committed the very offences for
    which he was convicted, and which gave rise to the appeal, while he was on
    bail.

[22]

In
S.M.
, the moving party had breached
    his pre-trial bail conditions by not observing a curfew and attending hotels
    contrary to the conditions of his relief. While there does not appear to have
    been any potential for violence in these prior breaches, Paciocco J.A. stated
    that his prior conviction for an offence of obstruction of justice led to the conclusion
    that he posed a risk of reoffending against the administration of justice.
    Again, no similar risk has been identified in this case.

[23]

To be clear, the moving partys offence was a
    serious one which, in and of itself, raises public safety concerns. The moving
    partys history of breaching court orders by contacting the complainants
    mother also raises the level of risk, but the fact those prior breaches have
    not involved violent or threatening behaviour is relevant to this analysis as
    well. On balance, I am satisfied the public safety risk posed by the moving
    party can be addressed by the strict conditions of the release plan.

B.

Public confidence

[24]

With respect to the public confidence aspect of
    the public interest prong, the court must balance the states interest in
    enforcing the sentence imposed on the one hand, with the reviewability interest
    in light of the strength of the moving partys case on appeal, and right to
    have that appeal heard before serving the sentence imposed at trial, on the
    other.

[25]

As Miller J.A. denied the moving partys
    previous motion for bail pending appeal on the basis of public safety, he did
    not address the public confidence aspect of the tertiary public interest prong
    of the
Oland
framework.

(1)

Enforceability interest

[26]

With respect to the enforceability interest, the
    more serious the crime, the greater the risk that public confidence in the
    administration of justice will be undermined if the accused is released on bail
    pending appeal. In this case, the offences for which the moving party was convicted
    are serious and involve an abuse of trust and sexual assault against a child,
    resulting in a term of imprisonment of six years.

[27]

Additionally, it is clear from the record,
    including the pre-sentencing report, that the moving party lacks insight into
    the harm resulting from his unwanted and unwelcome contact with his former
    spouse. He appears to remain fixated on restoring some relationship with her.
    It is equally clear that the impact of this contact, in violation of court
    orders, has been harmful for his former family.

[28]

Given these circumstances, it is likely that the
    moving party will continue to attempt to re-establish contact with his former
    spouse in some way. This likelihood militates for a higher enforceability
    interest.

[29]

While the seriousness of the offence bolsters
    the enforceability interest and favours continued incarceration, absence of
    risk to public safety may attenuate the enforceability interest:
Oland
,
    at para
39
.

[30]

In my view, all these circumstances, including
    the seriousness of these offences, the presence of a public safety risk, and
    the moving partys lack of insight into the harm caused by his prior breaches,
    support a relatively high enforceability interest.

(2)

Reviewability interest

[31]

The Crown argues that while the enforceability
    interest in this case is high, the reviewability interest is low.

[32]

The moving partys grounds of appeal include
    that the trial judge misapprehended certain evidence which was material to his
    assessment of credibility, and that the trial judge improperly relied on a
    prior consistent statement bolstering one of the witnesses testimony. The
    moving party argues that the strength of the proposed grounds of appeal should
    lead to a high reviewability interest.

[33]

The moving party alleges three pieces of
    evidence were misapprehended. First, the moving party asserts that the trial
    judge mischaracterized him as attempting to deceive the court about his prior
    breach of a court order to advise police of his change of address. The moving
    party argues that he clearly took responsibility for this breach by pleading
    guilty, and thus there was nothing misleading in his testimony.

[34]

The second alleged misapprehension concerned the
    trial judges characterization of an altercation between the moving party and
    the complainants brother involving the theft of car tires. The trial judge
    referred to the moving partys testimony as concerning but, in the moving
    partys view, misconstrued that testimony. As transcripts have not yet been
    obtained, however, it is not possible to assess whether this evidence was
    understood correctly.

[35]

To the extent there is some uncertainty with
    respect to the misapprehension of evidence ground pending a review of the trial
    transcripts, this does not favour the moving party. It is his burden to
    establish a sufficiently high reviewability interest based on the record on
    this motion, not the possibility of a stronger basis of appeal that might arise
    in the future.

[36]

Third and finally, the moving party alleged that
    the trial judge incorrectly stated that the moving party had distanced himself
    from the complainant in an attempt to cover up the sexual assaults. The moving
    party argues that this finding was not available on the evidence.

[37]

The Crown characterizes the moving partys
    arguments with respect to the misapprehension of evidence as weak. The Crown does
    not agree that any of this evidence was misapprehended but, in any event,
    argues that the evidence in question was not material and would have made no
    difference to the trial judges finding of guilt.

[38]

The second ground of appeal arises from a
    statement by the trial judge in his reasons relating to a prior statement of
    the complainants former boyfriend, which corroborated an alleged fact in the
    complainants testimony and contradicted the testimony of the moving party.

[39]

The Crown argues that when the impugned reference
    is read together with the trial judges fuller assessment of the former
    boyfriends testimony later in his reasons, however, any concern regarding the
    trial judge improperly relying on a prior consistent statement is removed.

[40]

The adjudication of this ground of appeal may
    depend on whether this passage in the trial judges reasons referring to the
    complainants boyfriends testimony is read on its own, or interpreted in light
    of the other comments by the trial judge elsewhere in his reasons for judgment.

[41]

While these grounds of appeal are certainly
    arguable, I would not accept that they give rise to a high reviewability
    interest.

[42]

Public confidence is assessed qualitatively and contextually,
    based on the standard of a reasonable member of the public:
Oland
, at
    para. 47-49.

[43]

Balancing the relatively high enforceability
    interest with the relatively low reviewability interest, I conclude that the
    moving party has failed to meet his burden of establishing that public
    confidence does not favour continuing detention.

[44]

In the result, in my view, a reasonable member
    of the public, who is thoughtful, dispassionate, informed of the circumstances
    of the case and respectful of societys fundamental values would be of the
    view that release pending appeal is not in the public interest:
Oland
,
    at para. 47.

Disposition

[45]

For these reasons, the motion for bail pending
    appeal is denied.

[46]

I wish to thank both counsel for their clear and
    helpful submissions.

L.
    Sossin J.A.


