



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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

6.

(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

7.

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

8.

(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. Sousa, 2020 ONCA 432

DATE: 20200629

DOCKET: M51604 (C68224)

Thorburn J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Helder Sousa

Appellant/Applicant

Mark C. Halfyard, for the applicant

Michael Fawcett, for the respondent

Heard: June 24, 2020 by teleconference

REASONS FOR DECISION

[1]

The applicant, Helder Sousa seeks to vary the
    terms of his bail pending appeal.

Background Facts

[2]

At trial, the Crown lead evidence to support the
    theory that Mr. Sousa was guilty of a violent sexual assault. That evidence is
    as follows: Mr. Sousa left a party with a heavily intoxicated woman who was in
    and out of consciousness. The two were strangers. He drove her to a wooded area
    and had forced vaginal and anal sex with her. The victim was unable to stop the
    assault. He then put the victim back in the car and drove her to an unfamiliar
    area and removed her from the car. She began to scream and nearby residents came
    to her assistance. A 911 call was made and police interviewed the complainant. She
    could not identify her attacker other than to say he was a male with short regular
    style hair and was six feet tall. A year after the incident, police obtained a
    DNA sample that matched that of Mr. Sousa at 15 STR loci.

[3]

Mr. Sousas defence was that the police planted
    the DNA to frame him. He claimed the police could have planted his DNA on the
    swab because he was their main suspect, they had no identification evidence,
    and the case was getting cold.

[4]

Mr. Sousa represented himself at trial with the
    assistance of a friend of the court.

[5]

He was found guilty of sexual assault. He was sentenced
    on January 13, 2020, by Ramsay J. to ten years in custody minus a few months to
    take into account time spent in presentence custody.

[6]

He has appealed that conviction and seeks leave
    to appeal his sentence.

The Present Terms of Mr. Sousas Bail Pending
    Appeal

[7]

Mr. Sousa was granted bail pending appeal by
    Trotter J.A. Pursuant to the terms of that order. Mr. Sousa is required to be
    in the presence of his surety at all times.

Mr. Sousas Request to Vary the Terms of his
    Bail and Conditions to be Satisfied

[8]

Mr. Sousa seeks to vary the terms of his bail to
    permit him to work, and travel to and from his place of work, without his
    surety. Mr. Sousa intends to travel to and from work with his father who works
    for the same company, but his father is not a surety.

[9]

An applicant may apply to vary bail conditions
    so long as they satisf[y] the conditions of s. 679(3) namely, it is not a
    frivolous appeal, the terms of the release are not contrary to the public
    interest and the appellant can be expected to surrender himself prior to the
    hearing:
R. v. White
(1994), 72 O.A.C. 300, at para. 7 (C.A.).
Section
679(3)
of the
Criminal
    Code,

R.S.C., 1985, c.
    C-46, provides as follows:

the judge of the court of appeal may
    order that the appellant be released pending the determination of his appeal if
    the applicant establishes that

(a) the appeal or application for
    leave to appeal is not frivolous;

(b) he will surrender himself
    into custody in accordance with the terms of the order; and

(c) his detention is not
    necessary in the public interest.

[10]

The Crown concedes that this appeal is not
    frivolous and that the applicant will surrender into custody when required. The
    only issue is whether it is necessary in the public interest to maintain to
    current strict bail conditions. For reasons that follow, I find that it is.

The
First
Factor: The Strength of the Appeal

[11]

Mr. Sousas principal ground of appeal is that
    the trial judge erred in determining that a recent federal law (Bill C-75)
    removing peremptory challenges applied retrospectively to criminal proceedings
    that had started but not finished, before Bill C-75 came into force.

[12]

At the time his jury was selected, Mr. Sousa was
    not advised of the amendments to the
Criminal Code
in Bill 75, nor was
    he given the opportunity to challenge jurors peremptorily. The trial judge
    rather than triers, heard the challenges for cause to prospective jurors.

[13]

After his trial concluded, this court rendered
    its decision in
R. v. Chouhan
, 2020 ONCA 40, 149 O.R. (3d) 365, leave
    to appeal granted, [2020] S.C.C.A. No. 19. In that case, Watt J.A. at paras. 5
    and 217 held as follows:

[T]he abolition of the peremptory challenge
    applies prospectively, that is to say, only to cases where the accuseds right
    to a trial by judge and jury vested on or after September 19, 2019. But I
    conclude the amendment making the presiding judge the trier of all challenges
    for cause applied retrospectively, that is to say, to all cases tried on or
    after September 19, 2019.



[T]he abolition of peremptory challenges
    affected the substantive rights of the appellant, thus it should not have
    applied to the selection of the jury in his case nor should it apply to the
    selection of the jury in other cases if the accused had a vested right before
    September 19, 2019 to a trial by judge and jury as it existed in the prior
    legislation
. [Emphasis added.]

[14]

The relevant temporal factors are the same in
    this case as in
Chouhan
.

[15]

This same issue was addressed in
R. v.
    MacMillan
, 2020 ONCA 141. In that case, Macpherson J.A. held that [t]his
    argument is far removed from being frivolous. Indeed it is almost the opposite;
    it is almost certain to succeed.

[16]

Since those decisions were released, the Supreme
    Court has granted leave to appeal the
Chouhan
decision relied on in
MacMillan
,
    but that appeal has not yet been heard. Until then,
Chouhan
is the law
    in Ontario and must be applied.

[17]

Mr. Sousa also argues that the trial judge erred
    in denying him the right to present the jury with the complainants inconsistent
    descriptions of her attacker. He points out that in
R. v. Mullin
, 2019
    ONCA 890, 383 C.C.C. (3d) 16, at para. 41, the court held:

The law permits the introduction of excited or
    spontaneous utterances as an exception to the rule against hearsay: a statement
    relating to a startling event or condition  may be admitted to prove the truth
    of its contents if it is made while the declarant is under the stress of
    excitement cause[d] by the event or condition: David M. Paccioco & L. Stuesser,
The Law of Evidence
, 7th ed. (Toronto: Irwin Law, 2015), at p. 191.

[18]

These statements by the complainant were made
    fairly soon after this vicious attack on the complainant.

[19]

For these reasons, this appeal is not frivolous;
    on the contrary, based on the current law the applicant has a strong chance of
    success on appeal to secure a new trial. The basis for the appeal however is
    not one that goes to guilt or innocence but primarily relates to the technical
    selection of jurors.


The Second Factor:
    Whether the Applicant will Surrender into         Custody when Required

[20]

The Crown concedes that the second factor to be
    considered in s. 679(3) of the
Criminal Code,
whether Mr. Sousa will
    surrender into custody when required, is not at issue on this appeal. Mr. Sousa
    has complied with his bail conditions pending and throughout the trial and to
    date while on bail pending appeal.

The Third Factor: Whether Maintenance of
    these Strict Conditions   is Necessary in the Public Interest

[21]

The central question is whether Mr. Sousa has
    shown, on a balance of probabilities, that his detention is not necessary in
    the public interest: see
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R.
    250, at para. 19;
R. v. Iraheta
, 2018 ONCA 229, at para. 4.

[22]

The public interest
    factor in s. 679(3) of the
Criminal Code
has two parts -public safety and public
    confidence in the administration of justice: See
Oland
, at para. 23, and
R. v. Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48. While public confidence in
    the administration of justice is rarely a central factor in the test, it ought
    to be considered when an offence is serious:
Oland
, at paras. 29, 43.

[23]

Public confidence requires a balancing of
    reviewability and enforceability. In determining whether public confidence
    requires detention, the relevant factors include: (1) the seriousness of the
    crime, taking into account the gravity of the offence, the circumstances
    surrounding its commission, and the potential for a lengthy term of
    imprisonment; and (2) the strength of the appeal: see
Oland
, at paras.
    37-46.

[24]

Mr. Sousa has been convicted of a very serious
    and violent sexual assault and the circumstances surrounding the commission of
    the offence are hair-raising. The potential for a lengthy term of imprisonment
    is clear and Mr. Sousa has been sentenced to ten years imprisonment.

[25]

Public confidence in the administration of
    justice is important in this case.

[26]

I note that in
MacMillan
, a case that
    also involved a very serious sexual assault, the appellant was kept on a strict
    house arrest pending appeal notwithstanding the strong chances of success on
    appeal.

[27]

In this case, prior to his conviction, Mr.
    Sousas bail terms only required that he reside with his surety. His fiancée
    swore that He was working [at the same place of employment suggest on this
    application] before he went into custody without incident.

[28]

His existing bail conditions require Mr. Sousa
    to remain in the presence of his surety at all times. His surety is his
    domestic partner. He may leave his home for any reason provided he is with his
    surety at all times.

[29]

Mr. Sousa seeks to vary those terms to permit
    him to drive over one hour to and from work and work fulltime without
    supervision by his surety. Mr. Sousa notes that his father works at the same
    facility and that he would drive with him to and from work and that his surety
    has an obligation to notify the authorities if he does not leave or return home
    as scheduled.

[30]

This however, does not address the fact that Mr.
    Sousas father is not his surety and has no obligation to account for his sons
    whereabouts. Not is there any provision is Mr. Sousas father cannot go to
    work. Most importantly, there are no repercussions if the applicant fails to do
    what he says he will do as the surety is not with him going to and from or at
    work.

[31]

Unlike most appeals, a new trial will likely be
    ordered, at which point he will again benefit from the presumption of
    innocence.

[32]

However, given the very serious nature of this
    crime and the importance of public safety and public confidence in the
    administration of justice, residual concerns about public safety are important under
    s. 679(3)(c):
Oland,
at paras. 27, 39. Thus, although the chances of
    success on appeal are strong, it is not appropriate to loosen the bail
    conditions presently in place as Mr. Sousas father is not a surety. In an
    application for bail pending appeal, the applicant does not benefit from a presumption
    of innocence:
Oland,
at para. 34. Public confidence would be
    undermined if Mr. Sousa were to come and go from work and work unsupervised for
    12 hours a day without supervision from a surety.

[33]

For these reasons, the request to vary Mr.
    Sousas bail conditions is denied.

[34]

At the request of both parties, I will remain
    seized of this matter in respect of the issue of bail pending appeal.

J.A.
    Thorburn J.A.


