



WARNING

The judge hearing this motion 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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. J.R., 2022 ONCA 152

DATE: 20220216

DOCKET: M53180 (
C69815)

Thorburn J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Applicant (Respondent)

and

J.R.

Respondent (Appellant)

Stephanie
    A. Lewis, for the applicant/respondent

James
    Lockyer, for the respondent/applicant

Heard:
    February 10, 2022 by video conference

ENDORSEMENT

RELIEF SOUGHT

[1]

There are two applications before me: the
    Crowns application to revoke the order to release J.R. on bail pending his
    appeal, made October 28, 2021, pursuant to s. 679(6) of the
Criminal Code
, R.S.C. 1985, c. C-46;
and J.R.s new application for release on bail pending appeal.

[2]

J.R. concedes that there are reasonable grounds
    to believe he has contravened his October 28, 2021 release order, and that his
    release order should therefore be cancelled.

[3]

He submits however, that he has shown
    cause why a new release order should be issued. During oral submissions, J.R. brought
    a new application for bail pending appeal
. The Crown takes the position that J.R. has failed to show
    cause why his detention is not justified pursuant to s. 524(4) of the
Criminal
    Code
.

[4]

The
    Crown further submits that even if J.R. satisfies this court that his detention
    is not justified, the
Criminal Code
requires that he be
    taken into custody before being released.

HISTORY OF THIS PROCEEDING

[5]

J.R. was charged with sexual assault with a
    weapon, forcible confinement and extortion in April 2018. Shortly thereafter,
    he was released on bail.

[6]

He was convicted of these offences on May 3,
    2021. On October 28, 2021, he was sentenced to 6 years in custody less 21 days
    for pre-sentence custody.

[7]

On September 8, 2021, he sought leave to appeal
    his convictions. On November 17, 2021, he filed a supplementary notice of
    appeal and sought leave to appeal his sentence.

[8]

On October 28, 2021, on the consent of both
    parties, Trotter J.A. granted J.R. bail pending appeal. One of the terms of his
    release was: You must remain in your residence daily between the hours of 10:00
    p.m. and 6:00 a.m. except  when you are in the presence of your surety.

[9]

J.R.s only surety was his fiancée, who pledged
    $10,000.

[10]

On January 19, 2022, shortly after 1:00 a.m.,
    J.R. was driving alone outside his residence and was pulled over by a police
    officer. J.R. claims he was on his way to buy a pizza for his ill fiancée. Because
    he was out after 10:00 p.m., and not with his surety, he was charged with
    failing to comply with the terms of his release order, contrary to s. 145(5)(a)
    of the
Criminal Code
.

[11]

He was released at the scene on his own
    undertaking and ordered to appear in the Milton courthouse on February 16,
    2022.

[12]

This is the first breach of his bail conditions since
    he was released on bail in April 2018.

THE FIRST ISSUE: REVOCATION OF BAIL

[13]

This courts jurisdiction to
    revoke an appellants bail pending appeal is found in
s.
    679(6)
of the
Criminal Code
.
Section 679(6) provides that s. 524 applies with
    any modifications that the circumstances require. Subsection 524(3) provides:

(
3)
The judge or justice who
    hears the matter shall cancel a summons, appearance notice, undertaking or
    release order in respect of the accused if the judge or justice finds that

(a) the accused has contravened
    or had been       about to contravene the summons, appearance        notice,
    undertaking or release order; or

(b) there are reasonable
    grounds to believe that   the accused has committed an indictable offence        while
    being subject to the summons, appearance          notice, undertaking or
    release order.

[14]

The onus is on the Crown to establish contravention
    of the release order pursuant to s. 524(3).

[15]

J.R. concedes that he contravened his release
    order, so the condition in s. 524(3)(a) is met. Therefore, as required, I
    order the revocation of his October 28, 2021 release order.

THE SECOND ISSUE: J.R.S NEW APPLICATION FOR
    RELEASE

The Test for Detention
    after Breach of a Bail Condition

[16]

By virtue of s. 524(4), the onus is on the appellant
    to demonstrate that he should be released again pending appeal. The appellant
    has the onus of showing that his release is justified on a balance of
    probabilities, and specifically, 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: s. 679(3).

[17]

There is no dispute that J.R.s appeal is not
    frivolous, and that J.R. will surrender himself into custody in accordance with
    the terms of the order.

[18]

The only issue is whether J.R. has shown that his
    detention is not necessary in the public interest, despite the fact he breached
    his bail conditions by leaving his residence unaccompanied by his surety after
    10 p.m. to buy a pizza for his ill fiancée.

[19]

The public interest criterion has two
    components: public safety and public confidence in the administration of
    justice
:
R. v. Oland
, 2017 SCC 17,
    [2017] 1 S.C.R. 250
, at para. 23.

[20]

Public safety relates to the protection and
    safety of the public:

Oland
,
    at para. 24. To be denied bail for public safety considerations: (i) an
    individual must pose a substantial likelihood of committing an offence or
    interfering with the administration of justice; (ii) the substantial
    likelihood must endanger the protection or safety of the public; and (iii)
    the individuals detention must be necessary for public safety
: R. v. Morales
,
[1992] 3 S.C.R. 711, at pp. 736-37
;
R. v. Stojanovski
, 2020 ONCA 285
, at para.
18. Public
    safety considerations alone can justify refusing bail in the public interest:
Oland
,
    at para. 27. As
noted in
Morales
, at p. 738:

[T]he bail system also does not function
    properly if individuals commit crimes while on bail. One objective of the entire
    system of criminal justice is to stop criminal behaviour. The bail system
    releases individuals who have been accused but not convicted of criminal
    conduct, but in order to achieve the objective of stopping criminal behaviour,
    such release must be on condition that the accused will not engage in criminal
    activity pending trial.

[21]

An assessment of public confidence involves
    balancing the enforceability interest (that judgments should be immediately
    enforceable) and 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):
Oland
,
at paras. 25-26, 37-46.
    These interests are measured through the eyes of a reasonable member of the
    public who understands our bail system, and the facts of the case:
Oland
,
at para. 47.

The Positions
    of the Parties

[22]

The Crown points out that J.R. has been
    convicted of serious violent offences and a lengthy sentence has been imposed. The
    Crown claims that given his breach of a bail condition, public confidence in
    the administration of justice requires his detention. The Crown submits that
    the breach indicates that the bail plan is no longer reasonable as the surety
    is no longer appropriate, and in the balancing analysis, the enforceability
    interest now outweighs the reviewability interest. Alternatively, if this court
    determines that J.R.s detention is not justified, the Crown proposes a new pledge
    from J.R. of $10,000, and a new weekly reporting term in addition to the terms
    that were in force in the October 28, 2021 order for bail pending appeal.

[23]

J.R. claims that the circumstances under which
    this breach occurred do not require his detention in custody pending appeal.

[24]

He claims there are no new public safety
    concerns resulting from his breach. He says he had no intention to contravene
    his bail terms, and that with his own illness and his worry about his fiancées
    more serious illness (discussed further below), he was a bundle of nerves and
    simply forgot that his fiancée had to be with him if he left his home at that
    time of night. J.R.s account of the reason for his whereabouts is corroborated
    by his fiancée and by the cellphone records. He also notes that at the time of
    his breach, his fiancée was extremely ill.

[25]

J.R. further claims that under these
    circumstances, his release pending appeal would not shake public confidence in
    the administration of justice. In addition to the requirements imposed on him
    in the bail terms set out in the October 28, 2021 bail order, if this court
    orders release, J.R. proposes a weekly reporting term (rather than a monthly
    reporting term), and agrees to pledge the sum of $10,000.

The
    Circumstances of this Breach

[26]

J.R. concedes that he breached his bail
    conditions by leaving his home without his fiancée after his 10 p.m. curfew. He
    claims, however, that he was under serious stress as his fiancée had been ill and
    had not eaten for three days with what they believed to be COVID-19 (although she
    was later diagnosed with thrush), and he himself was unwell with a nasal
    infection. In his affidavit in support of this bail application J.R. notes, I
    was very worried because [my fiancée] had not been eating for days, and we
    thought she might have Covid. [N]either of us were thinking of the bail
    condition when I drove to get the pizza. We were both rather scared by [my
    fiancée]s condition.

[27]

There is evidence to support this account of J.R.s
    whereabouts and his reasons for leaving his home after 10 p.m. J.R.s fiancées
    cellphone records corroborate his assertion that he called Pizza Pizzas
    general number, 905-527-1111. At 12:51 a.m, he called for Hamilton Pizza Pizza
    locations and was told they were closed. Then, at 1:05 a.m., J.R. called the
    same number and was informed that the outlet in Burlington was still open but
    that they would not deliver. It is approximately 13.3 miles from his home. At
    2:22 a.m., Pizza Pizza left a voicemail message on his fiancées phone asking
    why he had not picked up the pizza he had ordered.

[28]

The following day, J.R. and his fiancée attended
    a walk-in clinic. His fiancée was not allowed to enter the clinic in case she
    had COVID-19, and told a nurse her symptoms over the phone. J.R. was allowed
    into the clinic to pick up a prescription for his sinus infection.

[29]

The Crown does not dispute this account.

Analysis of the
    Public Safety and Public Confidence Factors

[30]

Breach of a bail condition is a very serious
    matter. For the purposes of maintaining public safety and public confidence, it
    is important that applicants released pending appeal comply with the conditions
    of their release.

[31]

In rare cases, where extenuating circumstances exist,
    persons that have failed to adhere to a bail condition may nonetheless satisfy
    their onus to justify their release on bail pending appeal. Those cases should
    be exceptional and should not involve otherwise illegal activity.

[32]

This is one such case. Against the backdrop of
    the coronavirus epidemic, J.R. was ill and very worried about his fiancée (and
    suretys) more serious medical illness. J.R. left to get food for her. While it
    was wrong not to adhere to the condition that he remain in the home, I accept
    that J.R. was scared and not thinking clearly. I do not believe he set out to
    breach his bail. Moreover, while J.R.s surety was in the home when he left,
    she was very ill. I do not take this isolated act, when viewed in the context
    of her illness, to necessitate a change in surety.

[33]

J.R.s breach was not intended to, nor did it
    result in, an otherwise wrongful or illegal activity, nor did it pose a
    substantial likelihood of J.R.s committing a further offence or interfering
    with the administration of justice. It is therefore distinguishable from the
    two cases cited by the Crown which resulted in revocation of bail.

[34]

Specifically, unlike the accused in
R. v.
    Manasseri
,
2015 ONCA 3, 329 O.A.C. 156, J.R. did not breach his
    bail conditions by impermissibly contacting a witness and suggesting he needed
    someone to contradict the witnesss evidence at trial. Nor, like the accused in
R. v. Castellano
, 2021 ONCA 272, did he breach his bail order by possessing
    such items as ammunition, break-in instruments, stolen property and an explosive
    substance and being charged with offences related to the offence for which he had
    been convicted. Moreover, there is no suggestion, as there was in
Castellano
,
    that the first bail pending appeal application was a close case as to whether
    the applicant had established that the reviewability interest outweighed the
    enforceability interest in the public confidence analysis. In this case, the
    bail pending appeal order was issued on the consent of both parties.

[35]

As such, from the perspective of an informed member
    of the public who understands our bail system, reviewing the facts of this case,
    and considering the need to respect the general rule of enforceability of orders,
    I do not believe public confidence in the administration of justice would be
    impaired if J.R. were granted bail pending appeal on new terms, given the
    unusual circumstances in which J.R. breached his bail conditions.

[36]

Moreover, given the reasons for the breach, the
    nature of the breach, and the fact that this is the only breach of a bail term
    while J.R. has been on bail for four years, I am satisfied that there is no substantial
    likelihood of him committing an offence or interfering with the administration
    of justice, such that J.R.s bail pending appeal would jeopardize the
    protection or safety of the public.

[37]

There must, however, be some adjustment to the
    release terms in light of the breach in order to further support compliance,
    and I agree with the new terms proposed by the parties. J.R. shall report
    weekly to the authorities instead of monthly, as he was required to do pursuant
    to the order of October 28, 2021, and he shall personally pledge $10,000. This
    is in addition to the terms the parties agreed to in the order of October 28,
    2021.

[38]

For these reasons, I find that J.R. has
    satisfied his onus to show cause why his detention is not justified
    notwithstanding his breach of his bail condition: s. 524(4).

THE THIRD ISSUE: WHETHER J.R. MUST BE
    ARRESTED BEFORE BEING RELEASED ON BAIL PENDING APPEAL

[39]

J.R. was arrested for failing to comply with a
    release order. He was, however, released by the arresting officer on an
    undertaking. Accordingly, J.R. is currently out of custody.

[40]

The Crown submits that whether or not J.R. may
    be ultimately released on a new bail pending appeal, this court does not have
    jurisdiction to revoke the October 28, 2021 order until it issues a warrant for
    arrest and committal and J.R. is in custody. The Crown relies on this courts
    decisions in
R. v. U.(F.J.)
(1995), 95 C.C.C. (3d) 408 (Ont. C.A.),
    and
R. v. La
, 2018 ONCA 85, in support of its submission. In these
    cases, this court held that it did not have jurisdiction to revoke a bail order
    where the appellant had not been arrested and brought before a judge.

[41]

In my view however, where an appellant is not in
    custody and a new application for release on bail pending appeal is heard at
    the same time as the Crowns application to revoke bail, the modifications
    that the circumstances require envisaged by s. 679(6) may, in exceptional
    circumstances, allow for the revocation of bail pending appeal pursuant to s.
    524(3), and the ordering of a new bail pending appeal under s. 524(5), without
    having to first issue an arrest warrant.

[42]

Although the bail revocation sections of the
Criminal
    Code
were amended in 2019, s. 679(6), which, then and now, incorporates
    these sections into the bail pending appeal regime, continues to use the with
    any modifications that the circumstances require wording. Specifically, s.
    679(6) now provides that Sections 495.1, 512.3 and 524 apply, with any
    modifications that the circumstances require, in respect of any proceedings
    under this section.

[43]

Section 524(1) addresses the situation of
    bringing an accused person before a justice where the accused person is
    believed to have contravened an order. In the case of bail pending appeal, ss.
    524(1) and (2) are typically engaged when the Crown brings an application to a
    Court of Appeal judge for an arrest warrant.

[44]

If J.R. were in custody, this court would have
    jurisdiction to revoke his bail order without the need to issue an arrest
    warrant.

[45]

This is because in
R. v. Dallaire
(2001), 141 O.A.C. 65 (C.A.), at para. 13, Laskin J.A. held that when an
    appellant is in custody and is represented by counsel on the Crowns revocation
    application, the appellant is before the court for the purpose of the
    revocation application, and a further arrest warrant is not necessary. In
    coming to this conclusion, Laskin J.A. relied on the wording of s. 679(6),
    which stated that the bail revocation sections applied with such modifications
    as the circumstances require. He held that, In the circumstances of this
    case, I modify the applicable provisions of s. 525 [now s. 524] by dispensing
    with the need to issue an arrest warrant before cancelling the bail order.

[46]

I find that the circumstances of this particular
    case are exceptional and warrant this modification. In other words, I am of the
    view that J.R. should not be required to be arrested and held in custody before
    this court can cancel his current bail pending appeal order and make a new
    release order. This is because, first, J.R. has had notice of the application
    to revoke his bail pending appeal. He was arrested and charged for failing to
    comply with the bail pending appeal order and was then released on his own
    recognizance. He has been represented by counsel on the applications before the
    court. Second, J.R. conceded that he contravened his release order, his new
    bail hearing took place at the same time as the bail revocation hearing, and I
    came to the decision that his detention was not justified. Third, the new bail
    pending appeal order will come into effect forthwith. And importantly, fourth, in
    these exceptional times of COVID-19, it is in the public interest to avoid, if
    possible, unnecessary time in custody.

[47]

For
    these reasons, I find it is not necessary for J.R. to be taken into custody
    before his release on new terms of bail pending appeal.

CONCLUSION

[48]

For these reasons, the release order of October
    28, 2021 is revoked, the current bail pending appeal order is cancelled, and
    J.R.s release is ordered on a fresh bail pending appeal order with the new
    terms set out above.

[49]

The Crown and J.R. have agreed on the proposed
    terms of bail if J.R. is to be released and have provided a draft release order
    (and these terms include the terms of the October 28, 2021 order save for a
    change in reporting from once per month to once per week and the addition of
    the $10,000 pledge from J.R.).

[50]

An order is therefore issued in accordance with
    the terms of the draft Release Order filed. J.R. is to enter into this new
    release order forthwith.

J.A. Thorburn
    J.A.


