



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. M.S., 2019 ONCA 871

DATE: 20191104

DOCKET: M50723 (C67303)

Lauwers
    J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

M.S.

Appellant (Applicant)

James Lockyer, for the applicant

Kevin Rawluk, for the respondent

Heard: September
    19, 2019

REASONS
    FOR DECISION

[1]

The applicant was convicted of assault (x4),
    assault with a weapon (x4), choking (x2), sexual assault (x2), and assault
    causing bodily harm, after a jury trial. He was sentenced to nine-years
    imprisonment.

[2]

He seeks judicial interim release pending conviction
    appeal.

A.

The Governing Principles

[3]

For bail pending conviction appeal, the applicant
    must establish the three elements set out in s. 679(3) of the
Criminal Code
,

R.S.C. 1985, c. C-46
:
that the appeal or application for leave to appeal is not
    frivolous; that he will surrender himself into custody in accordance with the
    terms of the order; and that his detention is not necessary in the public
    interest.

[4]

The Crown submits that the applicant should
    remain incarcerated on the ground that his detention is necessary in the public
    interest on the basis of public safety and public confidence in the
    administration of justice.

[5]

As the Supreme Court observed in
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element
    must be tested under the framework set by this court in
R. v. Farinacci
(1993), 86 C.C.C. (3d) 32,
[1993] O.J. No. 2627,

per
Arbour J.A. (as she then was).
I am obliged to weigh the factors of reviewability and
    enforceability. As Arbour J.A. said in
Farinacci
, at paras. 41-43:

The concerns reflecting public interest, as
    expressed in the case-law, relate both to the protection and safety of the
    public and to the need to maintain a balance between the competing dictates of
    enforceability and reviewability. It is the need to maintain that balance which
    is expressed by reference to the public image of the criminal law, or the
    public confidence in the administration of justice. The public interest
    criterion in s. 679(3)(c) of the
Code
requires a judicial assessment
    of the need to review the conviction leading to imprisonment, in which case
    execution of the sentence may have to be temporarily suspended, and the need to
    respect the general rule of immediate enforceability of judgments.

Public confidence in the administration of
    justice requires that judgments be enforced. The public interest may require
    that a person convicted of a very serious offence, particularly a repeat
    offender who is advancing grounds of appeal that are arguable but weak, be
    denied bail. In such a case, the grounds favouring enforceability need not
    yield to the grounds favouring reviewability.

On the other hand,
    public confidence in the administration of justice requires that judgments be
    reviewed and that errors, if any, be corrected. This is particularly so in the
    criminal field where liberty is at stake. Public confidence would be shaken, in
    my view, if a youthful first offender, sentenced to a few months imprisonment
    for a property offence, was compelled to serve his or her entire sentence
    before having an opportunity to challenge the conviction on appeal. Assuming
    that the requirements of s. 679(3)(a) and (b) of the
Criminal Code
are
    met, entitlement to bail is strongest when denial of bail would render the
    appeal nugatory, for all practical purposes.

[6]

In
Oland
, Moldaver J. reflected on
Farinacci
and added analytical details. He noted, at para. 31, that an appeal judge
    considering an application for bail pending appeal should consider the factors
    stipulated for bail pending trial by s. 515(10)(c) of the
Criminal Code
,
    with necessary modifications to account for the fact that the presumption of
    innocence has been displaced by the conviction. The onus of establishing that
    the applicant should not be detained in custody is reversed and placed on the applicant:
    at para. 35. The factors to be considered are: the apparent strength of the
    prosecutions case; the gravity of the offence; the circumstances surrounding
    the commission of the offence; and the fact that the accused is liable, on
    conviction, for a potentially lengthy term of imprisonment.

[7]

Moldaver J. also considered the enforceability
    and reviewability interests and explained how, with appropriate modifications,
    the public confidence factors listed in s. 515(10)(c) are to be taken into
    account by the appeal judge in identifying the factors that make up the public
    confidence component in s. 679(3)(c).

[8]

First, he noted, at para. 37: In considering
    the public confidence component under s. 679(3)(c), I see no reason why the
    seriousness of the crime for which a person has been convicted should not play
    an equal role in assessing the enforceability interest. He added, at para. 38,
    that the appeal judge should have regard to the sentencing judges reasons, and
    not repeat that evaluation afresh.

[9]

Second, Moldaver J. considered the
    reviewability interest, which he identified, at para. 40, as the strength of
    the prosecution's case (s. 515(10)(c)(i)). This translates into the strength
    of the grounds of appeal  [and] in assessing the reviewability interest, the
    strength of an appeal plays a central role. Specifically, Moldaver J. endorsed
    the view expressed by my colleague Trotter J.A. in his article entitled, Bail
    Pending Appeal: The Strength of the Appeal and the Public Interest Criterion
    (2001), 45 C.R. (5th) 267 at 270, where he explained:

[R]ealistically,
    most cases do not raise strong claims regarding the public interest, at least
    not beyond the general concern that all criminal judgments ought to be
    enforced.... However, when an offence is serious, as with murder cases, such
    that public concern about enforceability is ignited, there should be a more
    probing inquiry into the chances of success on appeal. It is in this context
    that the balancing required by
Farinacci
requires some assessment of the
    merits, separate from the question of whether the appeal is frivolous or not. [Footnotes
    omitted.]

[10]

Moldaver J. added, at para. 44 of
Oland
,
    that:

In conducting a
    more pointed assessment of the strength of an appeal, appellate judges will
    examine the grounds identified in the notice of appeal with an eye to their
    general legal plausibility and their foundation in the record. For purposes of
    this assessment, they will look to see if the grounds of appeal clearly surpass
    the minimal standard required to meet the not frivolous criterion.

[11]

Having assessed the enforceability and reviewability
    factors, the appeal judge is required to balance them, keeping in mind that
    public confidence is to be measured through the eyes of a reasonable member of
    the public: at para. 47. Moldaver J. added: This person is someone who is thoughtful,
    dispassionate, informed of the circumstances of the case and respectful of
    society's fundamental values. There is no precise formula, but a qualitative
    and contextual assessment is required: at para. 49. However, he observed, at
    para. 50: where the applicant has been convicted of murder or some other very
    serious crime, the public interest in enforceability will be high and will
    often outweigh the reviewability interest, particularly where there are
    lingering public safety or flight concerns and/or the grounds of appeal appear
    to be weak.

B.

The principles applied

[12]

As outlined above,
for
    bail pending conviction appeal, the appellant must establish the three elements
    set out in s. 679(3) of the
Criminal Code:
that the appeal or
    application for leave to appeal is not frivolous; that he will surrender
    himself into custody in accordance with the terms of the order; and that his
    detention is not necessary in the public interest.

(1)

Not Frivolous

[13]

The applicant raises several grounds of appeal.
    The primary ground of appeal, elaborated upon by defence counsel at the oral
    argument of this application, is that the trial judge failed to instruct the
    jury on the use of cross-count similar fact evidence. Although the trial judge
    did provide some guidance when answering a question from the jury concerning
    two of the counts, the applicants counsel submits that the direction was
    wholly insufficient, as it was limited to only a pair of charges and still
    allowed the jury to engage in propensity reasoning since there were multiple
    counts and multiple complainants. The other grounds of appeal relate to other
    purported problems with the jury charge and the decision to permit video
    evidence of two witnesses to be sent to the jury room.

[14]

The not frivolous test is widely recognized as
    being a very low bar:
Oland
, at para. 20. I am satisfied that the
    appeal is not frivolous.

(2)

Surrender into Custody in Accordance with the
    Terms of the Order

[15]

Before his conviction, the applicant had been on
    bail for several years. Compliance was not an issue. The applicant identified
    his mother and brother as prospective sureties. If he is granted bail pending
    appeal, the applicant proposes that he live with his brother, who was his
    surety while he was on bail pending trial.

[16]

I am satisfied that the applicant will surrender
    into custody in accordance with the terms of his release.

(3)

The Public Interest

[17]

Under s. 679(3)(c), there are two components to
    consider: public safety and confidence in the administration of justice.

(a)

Public Safety

[18]

The Crown opposes release on the ground of
    public safety. Crown counsel places significant weight on the trial judges
    revocation of bail immediately upon conviction. The trial judge found that the
    convictions constituted a material change that created a substantial risk of
    harm to the victims of the offences. She also found that, given the severity of
    the offences, revocation of bail was necessary to maintain confidence in the
    administration of justice. On public safety alone, the Crown submits that
    continued detention would be justified.

[19]

While the offences are undoubtedly serious, I
    find the public safety concern to be slight, but not negligible. There might
    have been a material change post-conviction that increases the concern, as the
    trial judge reasoned. However, as he did in complying with his pre-trial bail, the
    applicant has a strong incentive to abide by the terms of any release, given
    the appeal.

[20]

I am satisfied that the applicant has
    demonstrated on a balance of probabilities that he is not a public safety
    threat and will not likely commit further offences if released on bail pending
    his appeal.

(b)

Public Confidence in the Administration of
    Justice

[21]

As discussed above, consideration of the public
    confidence component involves striking the balance between enforceability and
    reviewability.

Enforceability

[22]

With respect to enforceability, [p]ublic
    confidence in the administration of justice requires that judgments are
    enforced:
Farinacci
, at para. 42.  In this case, there are several
    factors that weigh heavily in favour of enforceability and against the release
    of the applicant. As noted in
Oland
,
the
    seriousness of the crime figures in the assessment of the enforceability
    interest.


[23]

The applicant was convicted, on multiple counts, of violently
    assaulting members of his family. At sentencing, the trial judge, at para. 51,
    found that the offences were serious and warrant significant sentences at the
    upper ends of the ranges. The trial judge ultimately sentenced the applicant to
    a nine-year prison sentence, with the sentences allocated as set out in the following
    table, which has been anonymized:



Count

Charge

Victim

Date

Conviction

Sentence



1

Assault

Child One

October 28, 2008

Yes

9 months



2

Assault with a weapon

Child Two

June 1, 2011  June 1, 2013

Yes

9 months



3

Assault with a weapon

Child One

June 1, 2011  June 1, 2013

Yes

9 months



4

Assault with a weapon

Child Two

June 1, 2013  Sept. 30, 2015

Yes

9 months



5

Assault

Child One

Aug. 1, 2015  Nov. 1, 2015

Yes

6 months



6

Assault

Spouse

Jan. 1, 2000  July  11, 2002

Yes

20 months (concurrent with count 7)



7

Choking

Spouse

Jan. 1, 2000  July  11, 2002

Yes

20 months (concurrent with count 6)



8

Assault

Spouse

June 1, 2010  Aug. 31, 2010

Yes

20 months (concurrent with count 9)



9

Choking

Spouse

June 1, 2010  Aug. 31, 2010

Yes

20 months (concurrent with count 8)



10
Assault
Spouse
Oct. 1, 2012  June 1, 2013
No
N/A

11

Sexual Assault

Spouse

Oct. 1, 2012  June 1, 2013

Yes




12

Assault causing bodily harm

Spouse

Aug. 1, 2015  Nov. 1, 2015

Yes

26 months (concurrent with count 13)


13

Sexual Assault

Spouse

Aug. 1, 2015  Nov. 1, 2015

Yes

26 months (concurrent with count 12)

[24]

The trial judge does not seem to sentence the
    applicant on the conviction for count 11, unaccountably. There were 13 counts,
    and 12 convictions. However, there are only 11 counts referred to in the
    sentencing. I believe the applicant was ultimately convicted of two counts of
    sexual assault, as noted on the indictment.
[25]

The trial judge pointed out numerous aggravating
    factors, including the applicants use of sexual violence as a means of
    punishment and control and that the emotional and psychological impacts on
    all of the victims of the assaults has been devastating: at para. 32. The
    graphic description of the applicants degrading and violent assaults on his
    spouse are set out in paras 21, 59 and 60 of the sentencing reasons, which
    bears repeating:
The assaults, beatings, choking and sexual
    assaults of [his spouse] and the assaults and assaults with a weapon against
    the children increased when [the applicant] had [his spouse] and their children
    move in with him  and continued to escalate when they moved into the basement
    of his mothers home. The beatings were brutal and left physical marks and
    emotional scars, the latter of which have not healed. Indeed, as regards the
    last sexual assault against [his spouse], which was the most egregious, [the
    applicant] brutalized [his spouse] for over an hour, anally raping her, choking
    her to unconsciousness several times, kicking, closed fist punches and
    pummeling her, leaving her with what she believed were cracked ribs, bruising
    and an inability to get out of bed for several days. The beatings were
    overheard by the three children, and [one child] witnessed her mothers
    injuries in the middle of these assaults and testified as regards what she
    witnessed. It was this last beating that propelled [his spouse] to overcome her
    significant fear of leaving and taking her children, and which propelled her to
    flee the home at night when [the applicant] went out for a haircut. Her fear
    had been born of the fact that [the applicant] had told her more than once that
    if she ever left and took the children with her, he would kill her. She
    believed that he was capable of and would do that.

The final counts of assault causing bodily
    harm and sexual assault were in the context of a particularly brutal beating,
    which lasted over an hour. The beating consisted of punching, kicking, choking
    to unconsciousness (for which no charge was laid) and anal sex, used as
    punishment. [The applicants spouse] was bedridden for days thereafter and
    testified that it was difficult to move. She felt as though ribs had been
    cracked and she had difficulty getting up without assistance to go to the
    bathroom. She testified that she had never been previously experienced such a
    prolonged and brutal beating.
It was after this
    last beating that [his spouses] resolve to flee the home with her children was
    solidified, despite being told by [the applicant] on numerous occasions that if
    she ever did take the children, he would kill her.
[26]

The enforceability interests weigh heavily
    against release. The offences were very serious, there were numerous
    aggravating factors, and the applicant was sentenced to a lengthy term of
    imprisonment.
Reviewability
[27]

As
Oland
notes,
in
    assessing the reviewability interest, the strength of an appeal plays a central
    role: at para. 40.
A preliminary assessment of the strength of the
    appeal reveals that, while the grounds of appeal are arguable, in my view they
    do not 
clearly surpass
the minimal standard required to meet the not
    frivolous criterion (emphasis added):
Oland
, at para. 44.
The
    Strength of the Appeal
[28]

Counsel for the applicant focused on the lack of
    a cross-count similar fact evidence instruction. I note that the Crown did not
    apply to use evidence across counts as similar fact evidence. Defence counsel
    did not seek an instruction in the jury charge and did not object to its
    absence after the charge was delivered. The issue appeared to occur to counsel
    only when the jury question arrived and was not pressed.
[29]

After the charge and during deliberations, the
    jury sent the following question to the trial judge:
We are looking for
    clarification on courts six and seven. The charges have the same date range
    between January 1, 2000 and January 1, 2002. We have heard in evidence that
    [the applicants spouse] and [child one] moved  in 2001. The charge is also
    specific to [a specific address]. Can we consider evidence that exists outside
    of the [specific address] but inside the date range? Are the two exclusive or
    linked? Are dates and addresses of no material value and we are simply to focus
    on evidence within the general time and location specified.
[30]

In the absence of the jury, the applicants
    trial counsel noted that theres something kind of in that question thats a
    little concerning, cause obviously theres no similar fact application between
    counts. The trial judge proposed that the she emphasize that the jury is to
    focus on all the evidence related to that incident. Crown counsel and defence
    counsel agreed.
[31]

The jury was brought in and the trial judge
    answered the jurys question, emphasizing that the jury was to consider: All
    of the evidence that there may be related to those, to that one incident. The
    jury retired but were brought back shortly thereafter so that the judge could
    further emphasize that the dates and addresses are not material in the sense
    that you dont have to worry about whether those things were proven or not.
[32]

Before the jury retired again, the jury
    foreperson sought further clarification: The question from the Jury is whether
    or not we are supposed to focus on the evidence in totality only in relation to
    [the applicants] and [his spouses] testimony on an event, or whether we are
    looking at the totality of the full date range of that charge. The trial judge
    asked the jury to put the question in writing. After the jury retired, defence counsel
    again expressed concerns about a similar fact instruction. The trial judge
    agreed to give a similar fact instruction.
[33]

While awaiting the jurys written question, it
    subsequently came to the trial judges attention that the jury resolved their
    own question and decided to go on. The trial judge decided to bring the jury
    back and deliver a charge relating to cross-count evidence and propensity
    reasoning. Crown counsel and defence counsel agreed.
[34]

The trial judge directed the jury with respect
    to the two particular counts, a count of assault and a count of choking, which
    arose out of the same transaction. The trial judge stated:
And I will tell
    you that as regard count six and seven, the evidence to be considered is only
    the evidence related to the event, or the incident in question which was that
    incident about the interrogation and [the applicant] coming across the room and
    choking and hitting [his spouse]. So, and we just wanted to, I would like to
    emphasize no other evidence outside the evidence related to that incident is to
    be considered, and no evidence say for instance which may suggest that [the applicant]
    may have been more likely to commit the offence related to the incident Ive
    just described again, is to be considered.
[35]

The trial judge made no effort to generalize
    this to any other charges. The applicant was ultimately sentenced to a
    concurrent sentence of one year eight months for these two counts.
[36]

Counsel for the applicant relies heavily on this
    courts decision in
R. v. M.(B.)
, 42 O.R. (3d) 1, [1998] O.J. No. 4359
    (C.A.), in which the accused was charged with a multiple count indictment of
    sexual offences relating to nine people, including his four daughters, an
    ex-wife, two other relations, a babysitter, a family friend, and two dogs. This
    court allowed the appeal, holding that the trial judge erred by failing to
    clearly explain that the jury could not use evidence of all the counts to prove
    any single count and by failing to provide a limiting instruction to guard
    against improper propensity reasoning regardless of the admissibility of
    similar fact evidence: at paras. 41-43.
[37]

I acknowledge that there are cases taking a
    similar view of the gravity of a faulty jury instruction on this issue:
R.
    v. B.(F.F.)
, [1993] 1 S.C.R. 697;
R. v. N.(R.K.)
, 32 O.R. (3d) 537;
    and
R. v. Tsigirlash
, 2019 ONCA 650, 157 W.C.B. (2d) 46.
[38]

However, I am of the view that there are
    material distinctions between the circumstances in
M.(B.)
and the
    circumstances of the applicant. It is not the law that every failure to
    instruct a jury against propensity reasoning automatically results in a
    reversal of the conviction.  In
R. v. N.P.C.
, 2007 ONCA 457, 86 O.R.
    (3d) 571, at para. 23, leave to appeal refused, [2008] S.C.C.A. No. 144, Gillese
    J.A. observed: 
It is unlikely that the jury would
    infer that because the appellant physically abused his wife, he also sexually
    assaulted his stepdaughters

 a completely different type of wrongdoing.
In
R. v. Sandhu
, 2009 ONCA 102, 242 C.C.C. (3d) 262, at
    para. 14, Laskin J.A. distinguished
M.(B.)
, noting that it involved
    multiple offences against multiple victims and evidence of discreditable
    conduct outside the scope of the indictment.
M.(B.)
might similarly have
    limited application to a case where the most serious charges relate to one
    victim and there is no material evidence outside the scope of the indictment.
[39]

The possibility of propensity reasoning by the
    jury was present in this multiple count, multiple complainant case.
But it is not clear that a jury would infer
    that a father who disciplined his children excessively would be more likely to
    rape his spouse.
[40]

I turn to the factors to be considered. I see
    the Crowns side in this appeal as strong, and the applicants appeal weak. The
    gravity of the most vile and violent crimes cannot be overstated, in the
    circumstances surrounding their commission. The applicant has been sentenced to
    a lengthy term of imprisonment.
[41]

As noted by Arbour J.A. in
Farinacci
, at
    para. 43, entitlement to bail is strongest when denial of bail would render
    the appeal nugatory, for all practical purposes.  Ultimately, although the
    reviewability interest still weighs in favour of release, the applicants
    conviction on two serious counts where the jury was charged about the
    impropriety of propensity reasoning and cross-count similar fact evidence mitigates
    the strength of the reviewability interest.
[42]

I am mindful that it is relatively rare for a
    bail pending appeal application to be resolved based on public confidence
    considerations. That said, this is one of the difficult cases  in which the
    public confidence component is raised:
Oland
, at para. 30. The interest
    in enforceability is very strong. The interest in reviewability is not. As my
    colleague, Fairburn J.A., concluded in
R. v. Iraheta
, 2018 ONCA 229, 145
    W.C.B. (2d) 282, at para. 21: Although the grounds of appeal are not
    frivolous, there is nothing that currently suggests that, pending his appeal,
    the appellant is at risk of continuing to serve a sentence that he will not
    have to serve one day. In my view, this conclusion aptly applies to the
    circumstances of the applicant.
[43]

The balance of the competing interests of
    enforceability and reviewability in this case come down in favour of
    enforceability. I have no hesitation in saying that a reasonable member of the
    public, informed of the egregious circumstances, would lose confidence in the
    administration of justice if the applicant were released pending appeal.
[44]

I find that the detention of the applicant is
    necessary in the public interest and dismiss the application for bail pending
    appeal. Pursuant to s. 679(10) of the
Criminal Code
,

I order that the appeal be expedited.
P.
    Lauwers J.A.