



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. K.K., 2021 ONCA 929

DATE: 20211222

DOCKET: M52947
    (C70000)

Zarnett
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

K.K.

Appellant/Applicant

Delmar Doucette, for the applicant

Natalya Odorico, for the respondent

Heard: December 8, 2021 by video conference

ENDORSEMENT

INTRODUCTION

[1]

The applicant was convicted of sexual assault, uttering
    threats, and two counts of assault contrary to ss. 271, 264.1(1), and 266,
    respectively, of the
Criminal Code
, R.S.C. 1985, c. C-46. He received
    a global sentence of two years less a day and three years of probation. The
    applicant now seeks to be released on bail pending the hearing of his appeal
    from conviction.

[2]

For the reasons that follow, I dismiss the
    application.

BACKGROUND

The Convictions Under Appeal

[3]

The events which give rise to the convictions
    under appeal occurred on two separate occasions in 2018. The complainant was the
    applicants then domestic partner.

[4]

Three of the counts on which the applicant was
    convicted arose from events on May 28, 2018  sexual assault, uttering threats to
    cause bodily harm (including a threat to choke the complainant to
    unconsciousness), and assault (involving hitting the back of the complainants
    head and breaking one of the complainants fingers). The fourth count related
    to events that took place in or around August 2018  an assault involving headbutting
    of the complainant.

[5]

The applicant was charged with these offences on
    February 12, 2019. He was convicted on September 24, 2021 after a trial before
    a judge alone. (The applicant was acquitted on a fifth charge). On December 3,
    2021, the applicant was given a global sentence of two years less a day and
    three years probation.

Other Offences Committed by the Applicant

[6]

The applicant has a criminal record with
    offences that both predate and postdate those at issue on his appeal.

[7]

In 2005, he was convicted of obstruction of a
    peace officer and assault causing bodily harm. In 2006, he was convicted of
    uttering threats to cause death or bodily harm. In 2012, he was convicted of
    assault. In 2013, he was convicted of assault causing bodily harm, failure to
    comply with a probation order, and mischief under $5,000.

[8]

On December 3, 2018, the applicant pleaded
    guilty to other offences against the complainant: assault, forcible confinement,
    uttering threats, and mischief under $5,000. He was sentenced to 25 days in
    custody (in addition to 117 days of credit for pre-sentence custody), a 12-month
    conditional sentence order, and two years of probation.

[9]

In May 2020, the applicant pleaded guilty to a charge
    that, in March 2020, he assaulted his current domestic partner, J.L. He also
    pleaded guilty to two counts of failure to comply with a probation order, and to
    one count that he failed, in April 2020, to comply with a condition of his
    release order relating to J.L., namely the no-contact provision. He was
    sentenced to 18 days in custody followed by 18 months of probation (with
    42 days of credit for pre-sentence custody).

[10]

On November 17, 2021, the applicant pleaded
    guilty to and was convicted of one count of breaching a no-contact order in
    relation to the complainant. He was sentenced to 45 days in custody.

The Application for Bail Pending Appeal

[11]

The applicant applies for bail pending appeal to
    be effective when he is released from custody on the sentence he is currently
    serving for breach of the no-contact order relating to the complainant. He
    proposes J.L., his common-law partner, as his surety.

ANALYSIS

[12]

To obtain bail pending appeal, the applicant
    must establish that: (1) the appeal is not frivolous; (2) he will surrender
    himself into custody in accordance with the terms of the release order; and (3)
    his detention is not necessary in the public interest:
Code
, s.
    679(3)(a), (b) and (c).

[13]

The Crown opposes the order, on the basis that
    the applicant has not met his onus to show that his detention is not necessary
    in the public interest.

[14]

The public interest ground requires
    consideration of two matters: public safety and public confidence in the
    administration of justice. The two are not completely independent. In some
    cases, even though the applicant may satisfy the public safety threshold,
    residual public safety concerns may remain to be considered in the public
    confidence analysis. That latter analysis involves balancing the reviewability
    interest (that a person is entitled to a meaningful review process before
    having to serve all or a substantial part of their sentence) and the
    enforceability interest (that judgments should be immediately enforceable). The
    balancing of these interests is to be measured through the eyes of a reasonable
    member of the public:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250,
    at paras. 23-27 and 47.

The Enforceability Interest

[15]

The enforceability interest in this case is
    animated by three considerations  the seriousness of the crimes, residual
    public safety concerns, and the applicants failure to follow court orders and
    terms of release.

[16]

The seriousness of the crime, including the
    gravity of the offence and the circumstances of its commission, plays an
    important role in the consideration of the enforceability interest, as public
    confidence in the administration of justice will be undermined if the person is
    released on bail pending appeal:
Oland
, at para.
37
.

[17]

The convictions under appeal are for offences committed
    against a domestic partner, and involved violence.

[18]

Counts 1-3 relate to a prolonged violent
    incident in May 2018: the trial judge found that when the complainant refused
    to have sex with the applicant, the applicant put his hands around her throat,
    and threatened to choke her to unconsciousness unless she had sex with him. He
    then struck her repeatedly in the back of her head while she covered her face
    with her hands. At one point, he tore her phone from her hands, breaking her
    finger. He then forced vaginal intercourse on her as she was crying, knowing
    that she did not consent. The other count relates to an incident that occurred
    in or around August 2018: the trial judge found the applicant headbutted the
    complainant when she tried to escape the camper/trailer they were living in,
    and while she was pregnant.

[19]

In addition to the seriousness of the crimes,
public safety concerns that fall short of the substantial risk mark
     remain relevant under the public confidence component as a factor in favour
    of enforceability:
Oland
, at para.
39
. Although the applicants criminal record before 2018 is dated, it
    includes convictions for offences that involve violence. More recently,
the applicant was convicted of offences against the complainant, including
    assault and threats, that are not the subject of the appeal. He also has an
    even more recent conviction for assault against his current domestic partner,
    J.L.

[20]

The applicants counsel argues that the violent
    offences all occurred before May of 2020, when the applicant was addicted to
    cocaine, and that he has made significant strides to conquer the addiction
    since then. However, the Pre-Sentence Report for his sentencing, dated November
    10, 2021, found that standardized risk assessment tools place him at a high
    risk of reoffending, particularly in the area of domestic violence.

[21]

These kinds of concerns are in some cases
    attenuated by a strong history of compliance with bail terms pending trial, and
    by the release plan.

[22]

But in this case, the applicant committed an
    offence against J.L. while awaiting trial on the offences under appeal. As
    well, he has a number of convictions for breach of probation and breach of the terms
    of his release.

[23]

As for the applicants release plan, J.L is
    prepared to serve as his surety, under a release plan that contemplates them
    living together. They have a child together, and she has three children from a
    prior relationship. She advised the Pre-Sentence Report writer that she no longer
    fears he would resort to violence against her and that he has a good
    relationship with her children. He is a source of financial support for her and
    them. The applicant and J.L. also both depose that he has successfully
    abstained from cocaine use in part due to J.L.s encouragement and support. The
    applicant has started receiving medical counselling for his cocaine addiction.

[24]

The Crown expresses particular and marked concern
    about the release plan proffered by the applicant, given that the surety, J.L.,
    has been a recent victim of domestic violence by the applicant for which he was
    convicted in May 2020 (see above, at para. 9). The Crown argues that, among
    other things, the fact that J.L. is a victim of violence and is dependent on
    him for financial and childcare support raises a concern as to whether the
    applicant would abide by J.L.s directions and whether she would feel safe to
    report any breach. This is significant, including because he has a history of
    breaches of court orders and release terms.

[25]

Generally, a victim of a bail applicants
    violence should not serve as surety: The Honourable Justice Gary T. Trotter,
Law of Bail in Canada
, 3rd ed.
    (Toronto: Carswell, 2021) at 7:10. The applicant argues that J.L. has shown a
    willingness to report prior misconduct by the applicant, including against
    herself, and the evidence indicates she is a positive force in the applicants life.
    Accepting this evidence and that each case must be judged on its own facts, I nevertheless
    do not consider the other concerns that animate the enforceability interest set
    out above to be materially attenuated by the release plan, when it is viewed from
    the perspective of public confidence in the administration of justice.

The Reviewability Interest

[26]

Where the enforceability interest is thus
    engaged, weighing the reviewability interest requires a more pointed
    consideration of the strength of the appeal beyond the very low bar set by
    the not frivolous standard:
Oland
, at paras.
20 and 40-41
.

[27]

In my view, the appeal grounds, although rising
    above the low bar of being not frivolous, cannot be considered as clearly
    surpassing it. They each take issue with the trial judges processing of the
    evidence; findings of fact and credibility attract significant deference on
    appeal:
R. v. Radcliffe
, 2017 ONCA 176, 347 C.C.C. (3d) 3, at
    para. 23, leave to appeal refused, [2017] S.C.C.A. No. 294.

[28]

The trial judge believed the complainants
    evidence. He did not believe the applicant, and found his evidence did not
    raise a reasonable doubt. He was satisfied on the evidence he did accept that
    the Crown had proven its case beyond a reasonable doubt on the four counts on
    which he convicted the applicant.

[29]

The applicant argues that the trial judge
    employed stereotypes in rejecting the applicants evidence that the only sexual
    contact was initiated by the complainant, who pushed the applicant onto a chair
    and, against his will, performed oral sex on him while he protested, This is
    wrong. In my view, this will be a difficult argument. The trial judge noted
    that this description of what occurred was a change from the applicants
    previous two descriptions of the events given earlier in his own evidence, and
    that the applicant was making this up. Moreover, he found it difficult to
    believe that, given the size differential between them, the five foot one, 130-pound
    complainant could do this to an unwilling person who was approximately one foot
    taller and 100 pounds heavier. He considered the complainants version of the
    circumstances, including that the applicant had said, This is wrong, while he
    was sexually assaulting the complainant, to be believable.

[30]

The applicant also argues that one of the Crown
    witnesses contradicted the complainants evidence concerning whether she
    appeared to have injuries or look dishevelled after the May 2018 encounter, but
    that the trial judge failed to treat this as a direct contradiction. Again, I
    would not consider that a strong argument. The trial judge found that witness
    not to be reliable, noting his recollection for detail was lacking. Although
    the applicant complains that the trial judge speculated that the lack of
    ability to recall was due to the passage of time, in my view, this argument
    still faces the same significant obstacle that confronts those directed at a
    trial judges factual findings.

[31]

The applicant also argues that a Crown witness
    who testified about the August incident said she did not see any violence, and
    this contradicted the complainant and justified an acquittal on this charge.
    The trial judge, however, accepted the complainants evidence that the
    applicant headbutted her, rejected that of the applicant, and noted that [s]imply
    because [the witness] may not have seen this does not mean it didnt happen; the
    trial judge was satisfied beyond a reasonable doubt that it did happen.
    Although the applicant argues that this was not a proper application of
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, I am not satisfied that is a strong
    argument.

The Final Balancing

[32]

In my view, the essential factors here are that
    the applicant has been convicted of serious crimes of domestic violence; he has
    other convictions and committed an offence of domestic violence while awaiting
    trial on these charges; he has been identified as having a high risk of
    re-offending in the area of domestic violence; he has a history of
    non-compliance with probation orders and terms of release; and the grounds of
    appeal, while not frivolous, do not clearly surpass that standard.

[33]

When considered from the standpoint of public
    confidence in the administration of justice viewed through the eyes of a
    reasonable member of the public, the enforceability interest in this matter
    outweighs the reviewability interest.

[34]

The applicant has not established that his
    continued detention is not necessary in the public interest.

CONCLUSION

[35]

Accordingly, the application is dismissed. Upon
    perfection of the appeal, the applicant may apply for an expedited hearing date.

B.
    Zarnett J.A.


