



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Visscher, 2021 ONCA 575

DATE: 20210819

DOCKET: M52206 (C69070)

Strathy
    C.J.O. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent (Respondent)

and

Jeffrey
    Scott Visscher

Applicant (Appellant)

Phillip Dinis, for the applicant

Alysa Holmes, for the respondent

Heard: August 16, 2021 by video conference

ENDORSEMENT

[1]

Mr. Visscher applies pursuant to s. 679 of the
Criminal
    Code
for bail pending his appeal from his convictions for break and enter
    with intent and assault of his then wife.

[2]

The trial judge found that the applicant broke
    into his former wifes home and assaulted her in the presence of their young
    daughter at a time when he was bound by a recognizance not to attend at the
    home. The invasion and attack were preceded by a stream of abusive and
    threatening text messages.

[3]

The applicant was sentenced to a term of imprisonment
    of two years less a day and three years probation with respect to these
    offences and three months concurrent on each of three counts of breach of
    recognizance, to which he pleaded guilty.

[4]

The applicable test is set out in s. 679(3) of
    the
Criminal Code
, as explained in
R. v. Oland
, 2017 SCC 17, [2017]
    1 S.C.R. 250. The applicant must establish that (a) the appeal is not
    frivolous; (b) he will surrender into custody in accordance with the terms of
    the order; and (c) his detention is not necessary in the public interest. The
    applicant bears the onus of establishing each of these factors on a balance of
    probabilities.

[5]

I am satisfied that the appeal meets the low
    threshold of not frivolous. That being said, on the material available to me,
    its prospects of success are slim.

[6]

The applicant raises three grounds of appeal. He
    asserts that the trial judge: (a) failed to adequately address material
    inconsistencies in the evidence; (b) erred in his treatment of the
    complainants motive to fabricate; and (c) erred in admitting an excessive
    volume of text messages when their prejudicial effect exceeded their probative
    value.

[7]

As regards the first ground, the trial judge
    accepted the evidence of the complainant and of an independent witness, a
    friend, who corroborated her evidence. He found both witnesses to be clear,
    candid and  credible. He described the friend as a compelling and impressive
    witness.

[8]

While the trial judge found that there were some
    inconsistencies in the witnesses evidence, both internally and as between them,
    he did not find that these inconsistencies undermined their credibility. The
    internal inconsistencies were explained by the passage of time and were not
    significant. He found that the inconsistencies between the evidence of the two
    witnesses did not detract from their credibility. He noted that the evidence of
    the two Crown witnesses was not contradicted by any other witness. In my view,
    the inconsistencies were understandable, particularly because the complainants
    friend did not observe the break-in or the initial stages of the assault. The
    complainant and the witness had different perspectives on a dynamic assault,
    and it is not at all surprising that there were inconsistencies in some aspects
    of the evidence. The trial judge had no obligation to address every
    inconsistency in their evidence.

[9]

The issue of motive to fabricate was the subject
    of defence cross-examination of the complainant. It was suggested that her
    delayed reporting of the assault was motivated by a matrimonial dispute
    concerning the applicants access to their child. The trial judge found that
    the complainant had a motive to put restrictions on the applicants access to
    the child, but that this was driven by a desire to protect the child, rather
    than a desire to get back at the applicant. It can be inferred that the trial
    judge accepted the complainants evidence that she ultimately found the courage
    to report the incident.

[10]

As to the third proposed ground of appeal, the
    applicant asserts that the trial judge erred in not limiting the volume of
    abusive text messages and emails sent by the applicant prior to the assault.
    This was a judge-alone trial. The applicant does not contend that the evidence
    was admitted over the objection of the defence. The evidence was admitted as
    probative of the applicants state of mind prior to the attack and was
    consistent with the language he used during the attack, as described by the
    complainant. The trial judges admission of the evidence necessarily involved a
    balancing of its probative value as against its prejudicial effect and is
    entitled to deference. There is nothing in the reasons or the record to suggest
    that the texts and emails constituted unreasonable piling on of prejudicial
    evidence in the context of a judge-alone trial.

[11]

In sum, while none of the individual grounds of
    appeal can be described as frivolous, neither can any be considered, at this
    stage, to be anything more than weak.

[12]

Turning to the second
Oland
factor, I
    am satisfied, on a balance of probabilities, that the applicant would surrender
    into custody in accordance with any bail order.

[13]

On the third factor, I am not persuaded that Mr.
    Visschers detention is not necessary in the public interest. There are two components
    of the public interest criterion: public safety and public confidence in the
    administration of justice.

[14]

As to public safety, I accept the respondents
    submission that Mr. Visscher has engaged in a pattern of domestic violence and
    harassment of the complainant, both before and after the index offences. It
    bears repeating that the index offences occurred while the applicant was bound
    by a recognizance ordering that he not have contact with the complainant.

[15]

There is evidence that the applicants actions
    have caused emotional harm to the complainant and to the child. On the basis of
    all the evidence, I am not persuaded that the applicant will not engage in
    further abusive behaviour in relation to the complainant. I am satisfied that
    there is a real risk that he will do so again, given his past conduct.

[16]

I note in this regard that, although Mr.
    Visscher had previously proposed that his current spouse would serve as a
    residential surety, he has now separated from her and she is unwilling to stand
    as his surety. Instead, he proposes to live with his parents, who will serve as
    residential sureties. His father was his surety at the time of the index
    offences and has acknowledged that he failed to notify the police concerning
    those offences, even though he had an obligation to do so. In light of the
    history of this matter, I am not satisfied that the sureties are able to
    provide appropriate supervision of Mr. Visscher.

[17]

In balancing public confidence in the
    administration of justice against the reviewability interest, I note that the
    applicant was convicted of serious offences involving intimate partner
    violence, which cannot be described as isolated or out of character. I also
    note that Mr. Visschers jealousy and rage have not been controlled by the
    existence of court orders. Having regard to the relative weakness of the
    appeal, to release Mr. Visscher under these circumstances would undermine
    public confidence in the administration of justice in the eyes of a reasonable,
    thoughtful, and dispassionate member of the public, fully informed of the
    circumstances and respectful of societys fundamental values.

[18]

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

G.R.
    Strathy C.J.O.


