



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. I.W., 2021 ONCA 628

DATE: 20210915

DOCKET:
M52765 (C67177)

Zarnett
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

I.W.

Appellant/Applicant

Mark C. Halfyard, for the applicant

Jeffrey Wyngaarden, for the respondent

Heard: September 2, 2021 by video conference

ENDORSEMENT

INTRODUCTION

[1]

The applicants bail pending appeal was revoked
    when he was charged with committing offences against his domestic partner, who
    was his surety. He now applies to be released again on bail pending the hearing
    of his appeal, proposing a different surety.

[2]

For the reasons that follow, I dismiss the
    application.

BACKGROUND

[3]

The applicant was charged with sexual assault,
    sexual interference, and sexual exploitation, contrary to s. 271, s. 151 and s.
    153(1) respectively of the
Criminal Code
, R.S.C. 1985, c. C-46.

[4]

The charges arose out of a relationship between
    the applicant, then in his late thirties, and the complainant, a teenager who
    was a friend of the applicants daughter.

[5]

The sexual assault and sexual interference
    charges related to sexual touching and intercourse which the Crown alleged
    occurred before the complainant had turned 16. The sexual exploitation charge
    related to the period after the complainant had turned 16. The Crown alleged
    that the applicant exploited the complainants addiction to alcohol and her
    impecuniosity to have her engage in a sexual relationship with him.

[6]

The applicant denied any sexual relationship
    before the complainant was 16. He admitted to an inappropriate but non-criminal
    consensual sexual relationship with her after she was 16, but denied that it
    was the result of any exploitation.

[7]

On April 30, 2019, after a ten-day jury trial,
    the applicant was convicted of all three offences.
[1]
On January 3, 2020, he was
    sentenced by the trial judge to five years in custody, less approximately seventeen
    months credit for pre-trial custody.

[8]

The applicant has appealed his convictions.

[9]

On April 17, 2020 the applicant was granted bail
    pending appeal, which was extended several times. C.O., the applicants
    domestic partner, was the surety named in the April 17, 2020 release order and
    each of its extensions, with a financial obligation of $10,000. The conditions
    of the applicants release pending appeal included requirements that the
    applicant reside with C.O.; that he not communicate with or be in the company
    of anyone under 16 unless in the presence of C.O.; that he not attend day care
    centres, schools, playgrounds or community centres, or swimming pools or public
    parks where persons under 16 were likely to be; that he not possess weapons;
    that he keep the peace and be of good behaviour; and that he surrender into
    custody as prescribed.

[10]

On August 18, 2021, the applicant was charged
    with committing two offences against C.O., assault and uttering a threat (the
    New Charges). The applicant denies any assault or making any violent threat.
    In his affidavit, he says: We did get into a verbal argument on August 17,
    2021, which resulted in her leaving the residence, with our 8-month-old. She
    had my boss tools in her car, which I needed for work. I did send her a text
    message indicating I was going to kill her, but this was not a threat of
    violence, but expressing how upset I was because she had taken my tools. He also
    deposed that C.O. has since recanted her allegations.

[11]

On August 26, 2021 the applicants bail pending
    appeal was revoked, on consent without prejudice to the [applicants] rights
    to bring a new application for interim release. In making the revocation order,
    Miller J.A. stated: Mr. W. has been charged with assault and uttering threats
    against his spouse who is also his surety under an interim release order. All
    parties agree that in these circumstances, regardless of whether the
    allegations are true or a fabrication, the current surety is no longer suitable
    and bail must be revoked.

[12]

On August 26, 2021, the applicant was granted
    bail on the New Charges by a justice of the peace, with a new surety, the
    applicants friend J.A.

[13]

The applicant now applies for bail pending
    appeal, proposing J.A. as the surety.

[14]

The Crown opposes the order, on the basis that
    release is contrary to the public interest in light of the concerns raised by
    the New Charges and the grounds of appeal which, though not frivolous, are not
    strong.

ANALYSIS

[15]

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 order; and (3) his
    detention is not necessary in the public interest:
Criminal

Code
,
    s. 679(3)(a), (b) and (c).

[16]

The public interest ground requires two matters
    to be considered: public safety and public confidence in the administration of
    justice. The two are not completely independent. There can be cases where, even
    though the applicant satisfies the public safety threshold, residual public
    safety concerns remain, which are considered in the public confidence analysis.
    That 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.

Concerns Raised by the New Charges

[17]

The parties do not disagree about the applicable
    principles where new charges arise. Outstanding criminal charges are important
    for bail purposes, especially those that point to bail compliance issues:
R.
    v. C.L.
, 2018 ONCA 470, at para. 15. Though the applicant for bail pending
    appeal is presumed innocent of any unresolved charges that does not detract
    from their relevance and importance to bail pending appeal on charges on which
    the applicant has been convicted:
C.L.
, at para. 16. Among other
    reasons, new charges may undermine confidence in the applicants future
    compliance with bail conditions:
C.L.
, at para. 17.

[18]

The fact that a person on bail pending appeal is
    charged with uttering a threat to kill someone can also raise concerns about
    public safety and public confidence in the justice system:
R. v. D. L.
,
    2021 ONCA 538, at para. 5.

[19]

Although the parties agree that the New Charges
    are relevant, they disagree on what their significance should be in this case.
    The applicant stresses that not only is he presumed innocent of the New
    Charges, C.O. has subsequently recanted her allegations. Moreover, the
    applicant has been granted bail on the New Charges with a release plan that can
    be mirrored in an order for bail pending appeal. The Crown, on the other hand,
    points out that the test for bail pending the New Charges is different than for
    bail pending appeal, and stresses both the applicants sending of a text
    message indicating that he was going to kill C.O. and the fact that C.O. was
    his surety at the time.

[20]

In my view, the New Charges are significant in
    this case in two ways. First, in light of them it is difficult to view this
    case as one where there is no residual or lingering public safety concern
    that attenuates the enforceability interest: see
Oland
, at paras. 27
    and 50. And although a substantial and uninterrupted track record of compliance
    with bail conditions, without incident, can lend support to a bail order, the
    New Charges undermine that support, especially given that C.O. was the
    applicants surety under the then-existing release order. These are factors
    that weigh in the ultimate balancing of the enforceability and reviewability
    interests, which I discuss below.

The Enforceability Interest

[21]

The enforceability interest in this case is
    high.

[22]

The seriousness of the crime, including the
    gravity of the offence and the circumstances of its commission, play 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.

[23]

The applicant has been convicted of serious
    crimes. The sexual assault and sexual interference offences were found to have
    been committed against a person under 16. Sexual offences against children are
    violent crimes that wrongfully exploit childrens vulnerability and cause
    profound harm to children, families, and communities:
R. v. Friesen
,
    2020 SCC 9, at para. 5. The sentence imposed underscores the seriousness of the
    offences:
R. v. S.M.
, 2020 ONCA 427, at para. 13.

[24]

As well, 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. Here, when viewed through the eyes of a reasonable member of the public,
    the New Charges give rise to that type of concern.

The Reviewability Interest

[25]

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, 40-41.

[26]

The applicant has advanced three grounds of
    appeal.

[27]

First, the applicant argues that the trial judge
    erred in not providing proper instruction to the jury in relation to derogatory
    emotional outbursts of the complainant while testifying, including standing up
    and telling defence counsel: Youre defending a creep. Youre defending a
    fucking creep, and later calling the applicant a loser, rapist, and
    creep. The applicant submits that these outbursts tainted his fair trial
    rights.

[28]

After the first outburst, the trial judge gave
    the jury a mid-trial instruction that they should not consider a witnesss
    manner of testifying the only or most important factor in making your
    decision, and they should not use the opinion the complainant expressed about
    the applicant to conclude or help you to conclude that he is a person of bad
    character and, therefore likely committed the offences charged because of that
    bad character.

[29]

The applicant argues that the trial judge should
    have told the jury to disregard the outbursts as irrelevant, because they were
    only the complainants opinion of the applicants guilt and did not assist the
    jury with their task, and they had the potential of distracting the jury and
    having them conclude that because she testified in an emotional manner it was
    more likely that he was guilty of the offences.

[30]

However, the mid-trial instruction cautioned the
    jury about placing emphasis on the way the complainant testified  which
    arguably addressed the risk the applicant raises that the jury would conclude
    he was likely guilty because of the emotional manner in which she gave her
    evidence. And it instructed them not to use her opinion that he was a person of
    bad character  such as a loser or a creep or even a rapist  to infer he
    committed the offences, which arguably addressed the risk arising from the
    opinion of him she expressed.

[31]

Second, the applicant argues that the trial
    judge erred in allowing the Crown to lead a prior consistent statement of the
    complainant, and in not instructing the jury on its limited use.

[32]

In the examination in chief of the complainants
    father, Crown counsel asked if the complainant had ever told him about what
    happened between her and the applicant. Upon receiving a positive response,
    Crown counsel asked the following question: I dont want to get into anything
    about what she told you, okay, thats for her to have told the court. So, I
    dont want to hear from you about what it was or words that she used. But my
    question for you is, that she told you about these events with [the applicant],
    when was it that she came out to you with this information?

[33]

The response given was about a time, not about
    what was said.

[34]

The applicant argues that prior consistent
    statements are presumptively inadmissible, as a falsehood does not become true
    through repetition:
R. v. D.C.
, 2019 ONCA 442, at para. 19. Although
    there are limited exceptions and purposes for which such statements might be
    admitted, he submits that the trial judge did not articulate any basis to allow
    the statement to be led, and if there was a basis, the trial judge failed to give
    a limiting instruction to the jury about what use they could, and importantly
    what use they could not, make of the statement.

[35]

However, there are significant differences
    between this case and
D.C.
, in which the Crown led evidence of the
    detailed content of the prior statements and its closing address invited the
    jury to infer truthfulness from consistency by comparing what the complainant
    said in court to the content of the prior statements:
D.C.
, at paras.
    8-12, 15-16, 28. It was in that context that this court said that the dangers
    associated with prior consistent statements were engaged, and the absence of a
    limiting instruction was fatal:
D.C.
, at para. 29.

[36]

Here, the father was specifically asked not to
    say what he was told, nor did he. The jury would not have been able to compare
    the content of the prior statement to the complainants trial evidence in order
    to engage in prohibited reasoning and infer truthfulness due to consistency of
    content. At this stage, the applicant has not suggested that the Crown asked
    the jury to infer truthfulness from consistency. Even assuming the statement
    was improperly admitted, it may be difficult for the applicant to argue that
    this amounts to a reversible error.

[37]

Finally, the applicant submits that he was
    prejudiced by a misstatement by Crown counsel in her closing to the jury. The
    applicant argues that the jury was invited by Crown counsel to speculate that
    the applicant had access to certain premises he leased at a date about a month
    earlier than the lease commencement date, because the landlord had given early
    access to a prior tenant.

[38]

The trial judge instructed the jury that the
    prior tenants evidence about early access was that he had been given it a day
    or two early, reminding the jury of the actual evidence.

[39]

In my view, the appeal grounds, while arguable,
    are not strong.

The Final Balancing

[40]

As indicated above the enforceability interest
    in this case is high due to the seriousness of the offences. The enforceability
    interest is not attenuated by either an absence of residual public safety
    concerns, or by an uninterrupted record of bail compliance, given the New
    Charges.

[41]

The reviewability interest in this case is
    influenced by the strength of the grounds of appeal. They are not frivolous,
    but they are not strong.

[42]

Moreover, in balancing the enforceability and
    reviewability interests, the timing of the appeal is relevant:
Oland
,
    at para. 48. The appeal has been perfected and scheduled to be heard in
    February 2022, when the applicant will still have considerable time left to
    serve on his sentence. Accordingly, the reviewability interest is partially
    preserved even without release until the appeal is heard.

[43]

Viewed from the perspective of a reasonable
    member of the public, the enforceability interest predominates and outweighs
    the reviewability interest given the less than strong grounds of appeal, the
    seriousness of the crimes, and the lingering public safety  concerns:
Oland
,
    at para. 50.

CONCLUSION

[44]

Accordingly, the application is dismissed.

B.
    Zarnett J.A.





[1]

The applicant had also been charged with uttering a threat
    in relation to the same complainant. He was acquitted of this charge.


