



WARNING

The judge
    hearing this motion 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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted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(iii)     REPEALED: S.C.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    directing that any information that could identify the victim shall not be
    published in any document or broadcast or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. T.S.D., 2021 ONCA 30

DATE: 20210115

DOCKET: M52084 (C68717)

Jamal
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

T.S.D.

Applicant

Jonathan Shulman, for the applicant

Jennifer A.Y. Trehearne, for the
    respondent

Heard: January 11, 2021 by video conference

REASONS
    FOR DECISION

[1]

This is the applicants second application for
    bail pending appeal. A few weeks ago, on December 3, 2020, I dismissed his first
    application:
R. v. T.S.D.
, 2020 ONCA 773. The applicant submits that a
    material change of circumstances since my earlier decision now justifies
    granting bail pending appeal. For the reasons that follow, I disagree, and
    therefore dismiss the application.

Background

[2]

I reviewed the background facts and relevant
    legal principles in my earlier decision. I will not repeat that discussion,
    except to highlight a few key facts and to include additional facts from materials
    filed on this second application.

(i)

The applicant sexually assaults the complainant

[3]

On May 19, 2018, the applicant and another male
    videotaped each other sexually assaulting the complainant at a party at her
    house while she was unconscious. There is no dispute that the applicant can be
    seen on the video inserting a hairbrush handle into the complainants vagina
    while another male filmed, and the other male can be seen digitally penetrating
    the complainant while the applicant filmed. The next day the applicant circulated
    the video to a group chat on Snapchat.

(ii)

The applicant is arrested

[4]

Two days later the police arrested the applicant,
    seized his cellphone incident to arrest, and charged him with gang sexual
    assault and distributing intimate images without consent. They later obtained a
    search warrant to search the cellphone, which contained the video.

(iii)

The proceedings leading to the applicants
    guilty plea

[5]

Two counsel were involved in some capacity in
    the applicants case before the Ontario Court of Justice. The scope of the retainer,
    if any, of his first counsel (First Counsel) is unclear. On January 31, 2019 and
    May 2, 2019, First Counsel advised the court that he was not retained. The applicants
    preliminary inquiry was scheduled to proceed in July 2019. Crown counsel stated
    on the record that the preliminary inquiry was scheduled to proceed with or
    without counsel.

[6]

On June 10, 2019, the applicant advised the
    court that he had been unable to perfect the retainer of First Counsel. He
    stated that he had applied for Legal Aid but his application had been denied.
    The Legal Aid office at the courthouse recommended that he appeal this
    decision. The court expressed concern about the applicant being steamrolled
    into going ahead unrepresented. Because the preliminary inquiry was
    approaching, the court proposed to appoint counsel (Second Counsel) for the
    applicant under s. 486.3 of the
Criminal Code
, R.S.C., 1985, c. C-46, for
    the purpose of cross-examining the complainant and several other witnesses at
    the preliminary inquiry. The court proposed to give the applicant time to meet with
    Second Counsel to decide whether he would be prepared to proceed with her. The
    court also made clear to him that he did not have to proceed with Second Counsel
    if he was uncomfortable with her. The applicant agreed with this proposal. The
    court then appointed Second Counsel under s. 486.3 of the
Criminal Code
to conduct cross-examinations at the preliminary inquiry, subject to the
    applicant being content with her.

[7]

The matter returned to court on June 17, 2019.
    Second Counsel and the applicant could not attend because the Toronto Raptors
    parade that day made it hard to access the courthouse. Crown counsel told the
    court that she had been advised that the applicant was content to accept the
    appointment of Second Counsel as s. 486.3 counsel. She also said she had been
    advised that Legal Aid Ontario would expedite a Legal Aid appeal to allow the
    applicant, if approved, to obtain a Legal Aid certificate for a full retainer, but
    he had not filed an appeal.

[8]

On June 28, 2019, both the applicant and Second
    Counsel attended court. The applicant advised that he had not appealed the decision
    to refuse him Legal Aid. He also stated that after speaking with [Second Counsel]
    I personally would want her to represent me at the preliminary hearing. Second
    Counsel advised the court that she would act at the preliminary inquiry either as
    s. 486.3 counsel or under a full retainer. The court asked the applicant, given
    the fact that youd be willing to retain [Second Counsel] I take it you feel
    confident having her represent your interest. He responded, Yes.

[9]

Between June 28 and early July 2019, it appears the
    applicant personally retained Second Counsel beyond the terms of the s. 486.3
    retainer because she invoiced him for legal work as of July 6, 2019.

(iv)

The applicant pleads guilty

[10]

On July 8, 2019, the first day of the
    preliminary inquiry, the applicant pleaded guilty to sexual assault
simpliciter
(rather than gang sexual assault) and distributing intimate images without
    consent. Second Counsel advised the court that the applicants guilty plea was
    an informed plea, reached after the applicant had several opportunities to meet
    with her. The applicant confirmed that he agreed. The presiding justice then
    conducted a comprehensive plea inquiry to ensure the applicant was pleading
    guilty with full knowledge of what youre giving up. The applicant confirmed
    to the court that he understood that:

·

He was pleading guilty to sexual assault and distributing
    intimate images of someone without her consent, that he had had sexual contact
    with someone without her consent, and that he then distributed or allowed to be
    distributed intimate images of her without her consent;

·

The Crown would likely seek an upper reformatory
    sentence, which was explained to him as
in the range
    of
18 months to two years less a day, though the sentence imposed by the
    court could be higher;

·

The convictions would form part of his criminal
    record and he would have to register with a sex offender registry and be
    subject to reporting requirements; and

·

There might be other consequences for him, such
    as immigration consequences, being unable to work in certain fields, or
    restrictions on travel, all of which he had considered.

[11]

The applicant was then arraigned and pleaded
    guilty. An agreed statement of facts was read into the record, which the applicant
    admitted was substantially correct. The court then found the applicant guilty.

(v)

The applicant is sentenced

[12]

The Crown acknowledged during sentencing
    submissions that by negotiating a plea before the preliminary inquiry began,
    the complainant did not have to testify, which was incredibly mitigating for
    the applicant.

[13]

On September 22, 2020, the applicant was
    sentenced to 18 months imprisonment, followed by two years probation, and
    various ancillary orders. This was less than the sentence sought by the Crown
    and at the low point of the range mentioned to him at the time of his plea.

(vi)

The applicant appeals

[14]

By notice of appeal dated October 16, 2020, the
    applicant  now represented by new counsel who appeared on this application  appealed
    from his conviction and sentence. The notice of appeal claimed that the
    applicants guilty plea was uninformed and alleged ineffective assistance of
    counsel by Second Counsel.

[15]

On November 6, 2020, the applicant applied for
    bail pending appeal. I heard the application on November 13, 2020 and I allowed
    further written submissions and additional evidence to be filed the following
    week.

(vii)

The first application for bail pending appeal

[16]

On December 3, 2020, I dismissed the first
    application for bail pending appeal. I concluded that the applicant had not met
    even the very low bar of establishing that his grounds of appeal were not
    frivolous, because he advanced no arguable issue that his guilty plea was uninformed
    or that there was ineffective assistance of counsel by Second Counsel.

[17]

I also concluded that even if the grounds of
    appeal were arguable, public confidence in the administration of justice
    required the applicants continued detention because the enforceability
    interest outweighed the reviewability interest:
R. v. Oland
, 2017 SCC
    17, [2017] 1 S.C.R. 250, at paras. 24-25. The enforceability interest was significant
    because: (i) the applicant was convicted of two serious sexual offences; (ii)
    he sexually assaulted the complainant when she was incapacitated and
    vulnerable; (iii) he assaulted her in her home, where she should have felt
    safe; (iv) he used an implement to violate her in a way that was especially
    degrading and humiliating; (v) he did so with others, recorded the encounter,
    and circulated it to a group; (vi) he showed a callous demeanour by laughing
    during the assault, as recorded on the video; (vii) the incident had a lasting effect
    on the complainant, as evidenced in her victim impact statement; and (viii) the
    applicant disputed none of these essential facts. Even though the
    enforceability interest was attenuated somewhat by the applicants lack of
    flight risk and the low public safety risk, achievable through release
    conditions, it outweighed the weak reviewability interest.

[18]

However, to ensure that the reviewability
    interest remained meaningful, I ordered the appeal expedited under s. 679(10)
    of the
Criminal Code
.

(viii)

This second application for bail pending appeal

[19]

On December 30, 2020, the applicant filed this
    second application for bail pending appeal, based on a material change of
    circumstances. The material change of circumstances is said to arise from newly
    available transcripts of appearances before the Ontario Court of Justice and a
    new affidavit from the applicant. The applicant has also filed a further
    amended notice of appeal dated December 30, 2020. He continues to allege ineffective
    assistance of Second Counsel and that his guilty plea was uninformed. He now
    alleges ineffective assistance of First Counsel as well.

[20]

The applicant provided no waiver of privilege until
    January 5, 2021  less than a week before this application was argued and the
    day before the Crown filed its factum. Even then, the written waiver provided
    was limited to Second Counsel and excluded any signed written instructions.
    This precluded any disclosure of the applicants written instructions to Second
    Counsel before pleading guilty, which were referred to in the dockets of Second
    Counsel that have been disclosed. An email from applicants current counsel to
    Crown counsel purported to circumscribe this limited waiver further: Current
    waiver is for the communication not documents release. The applicant did not
    waive privilege over First Counsels file.

[21]

Then, during reply oral argument on this
    application, applicants counsel advised that his client has now given instructions
    to waive privilege over the entire file of both First and Second Counsel, and
    that he would confirm this to Crown counsel in writing by end of the day on
    January 11, 2021.

Applicable principles

[22]

The principles governing successive original
    applications for bail pending appeal were reviewed by Rosenberg J.A. in
R.
    v. Baltovich
(2000), 47 O.R. (3d) 761 (C.A.), at paras. 5-7, and may be
    summarized as follows:

1.

The scheme of Part XXI of the
Criminal Code
is that ordinarily there will be one opportunity to apply for release pending
    appeal: at para. 5. An applicant may bring a further original application for
    release pending appeal under s. 679 of the
Criminal Code
when there
    has been a material change of circumstances after the initial application: at
    para. 6.

2.

A judge hearing a subsequent original application
    has jurisdiction to deal with the application only if they are satisfied
that
there has been a material change of
    circumstances. A material change of circumstances requires additional information
    that could lead the judge hearing the application to alter the assessment of
    one or more of the statutory factors set out in s. 679(3), namely, (a)
    whether the appeal is frivolous; (b) whether the applicant will surrender into
    custody in accordance with the terms of the release order; and (c) whether the
    applicants detention is necessary in the public interest. If there is a material
    change in circumstances, the judge must then consider all of the statutory grounds
    and must be satisfied that the applicant has met the onus in s. 679(3): at
    para. 6.

3.

[T]he parties must accept the correctness of
    the decision of the first judge: at para. 7. This means that the parties and
    the judge hearing the subsequent application accept that on the basis of the
    material that was before the first judge, the decision was correct: at para.
    7. If the material change in circumstances threshold is met, the judges
    reasons on the initial application will be of assistance in determining whether
    the case is a proper one for release: at para. 7.

[23]

See also
R. v. Daniels
(1997), 35 O.R.
    (3d) 737 (C.A.), at pp. 744-751,
per
Doherty J.A.; Justice Gary T.
    Trotter,
The Law of Bail in Canada
, loose-leaf, 3rd ed. (Toronto:
    Thomson Reuters, 2017), at pp. 8-41 to 8-43.

Application to this case

[24]

On this application the applicant asserts essentially
    three additional grounds of appeal that he submits amount to a material change
    of circumstances.

[25]

First, the applicant asserts that First Counsel
    provided ineffective assistance by failing to move to withdraw as counsel of
    record. He says the judge presiding at the Ontario Court of Justice also failed
    to protect his interests by not insisting on a motion to withdraw and by not forcing
    First Counsel to represent him at the preliminary inquiry. He claims that had
    he known that First Counsel could not withdraw without a motion he would not
    have pleaded guilty.

[26]

This is not an arguable ground of appeal, and thus
    not a material change of circumstances. The applicants conduct shows that
    ultimately he did not want First Counsel to represent him at the preliminary
    inquiry  he did not appeal the refusal of Legal Aid to allow him to engage First
    Counsel but instead advised the court that he wanted Second Counsel to represent
    him at the preliminary inquiry. Further, the preliminary inquiry did not
    proceed because the applicant pleaded guilty after a comprehensive plea
    inquiry. I therefore see no arguable basis to conclude that the applicant was
    prejudiced or that there was any miscarriage of justice.

[27]

Second, the applicant asserts that Second
    Counsel provided ineffective assistance by failing to respond to, or provide
    him with, the Crowns testimonial aid application for the complainant to
    testify at the preliminary inquiry behind a screen.

[28]

This too is not an arguable ground of appeal. The
    record shows that Second Counsel consented to the testimonial aid application,
    which was a reasonable concession in the circumstances. In any event, there was
    no prejudice to the applicant: the testimonial aid was not used because the preliminary
    inquiry did not proceed.

[29]

Third, the applicant asserts that Second Counsel
    failed to inform him that the seizure of his cellphone without a warrant could be
    challenged under s. 8 of the
Canadian Charter of Rights and Freedoms
and that he might be subject to a period of probation as part of his sentence. He
    says that had he known this he would not have pleaded guilty.

[30]

I give little credence to this argument. Besides
    the fact that the applicant pleaded guilty only after a full plea inquiry, he has
    presented only a one-sided picture of what he says he was informed because he
    has refused to produce his written instructions to Second Counsel. Moreover,
    both the Crown and Second Counsel addressed the probation period during
    sentencing submissions, yet the applicant raised no concern about it then or
    during the intervening months before he was sentenced. In all these
    circumstances, the applicant has not established the facts to raise even an
    arguable issue that his plea was uninformed or that there was ineffective
    assistance of counsel.

[31]

Because the new grounds of appeal do not rise to
    the not frivolous threshold set in
Oland
, at para. 20, the applicant
    has shown no material change in circumstances.

I therefore have no
    jurisdiction to deal with this second application for bail pending appeal.

[32]

Even had I found a material change of
    circumstances, I would still have refused to grant bail pending appeal. Largely
    for the reasons I previously gave, I would have concluded that the applicant
    has not established that his detention is not necessary in the public interest.
    The reviewability interest is weak, while the enforceability interest remains significant.
    A reasonable member of the public who is thoughtful, dispassionate, informed of
    all the circumstances, and respectful of societys values would conclude that public
    confidence in the administration of justice requires the applicants continued detention
    pending appeal:
Oland
, at para. 47.

[33]

This application for bail pending appeal is
    therefore dismissed.

[34]

Finally, the Crown asked, in the event that I
    denied bail pending appeal, for an order requiring the applicant to comply with
    s. 17(10) of the Practice Direction Concerning Criminal Appeals at the Court
    of Appeal for Ontario, (March 1, 2017), which provides that when an appellant
    asserts a claim of solicitor-client privilege regarding materials in the trial
    file, appeal counsel shall forthwith provide the Crown with (i) an inventory identifying
    the materials alleged to be privileged, to the extent it is possible to do so
    without compromising the privilege, and (ii) a brief written statement of
    appeal counsels position on the basis of the claim of the solicitor-privilege and
    the extent or scope of any waiver of the privilege arising from the allegation
    of ineffective assistance at trial. The Crown asked me to order the applicant
    to comply with this provision by January 22, 2021, so that the Crown could understand
    the limits of any waiver of solicitor-client privilege and move for directions if
    necessary.

[35]

Because of the applicants position that he has waived
    privilege over the entire file of both First and Second Counsel, this issue is
    now moot. However, I order the parties to schedule a case conference promptly
    with Justice Tulloch, who has been case managing the appeal, to discuss the
    further progress of this appeal and to seek any further direction they may
    require.

Disposition

[36]

The application for bail pending appeal is
    dismissed. The parties shall schedule a case conference with Justice Tulloch
    promptly.

M.
    Jamal J.A.


