



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: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    that could identify the victim shall not be published in any document or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. W.M., 2020 ONCA 266

DATE:  20200422

DOCKET: M51490 (C65108)

Brown
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

W.M.

Appellant (Applicant)

W. John McCulligh
, for the applicant

Caitlin Sharawy, for the respondent

Heard by teleconference: April 20, 2020

REASONS
    FOR DECISION

OVERVIEW

[1]

The applicant, W.M., a 48-year old male, applies
    for bail pending his new trial pursuant to ss. 515 and 679(7.1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

[2]

For the reasons set out below, I grant the
    application.

BACKGROUND TO THE APPLICATION

[3]

In 2015, W.M. was charged with sexual
    interference and sexual assault of his daughter, who was about four years and
    ten months of age at the time of the offences. The charges alleged that W.M. touched
    his daughters vagina on two occasions.

[4]

W.M. was granted bail pending his trial. The
    conditions of bail included residing with his surety and not being alone with
    anyone under the age of 16 years unless in the direct company of his surety.

[5]

W.M. testified at his trial.

[6]

On May 30, 2017, Sproat J. of the Superior Court
    of Justice convicted W.M. on both counts but stayed the sexual assault
    conviction. The trial judge sentenced W.M. to four years imprisonment.

[7]

W.M. appealed his conviction. He did not seek
    bail pending appeal.

[8]

W.M.s statutory release date was set for June
    16, 2021. He was released on day parole on July 10, 2019. In early 2020, he
    applied for full parole. By decision dated February 20, 2020, the Parole Board
    of Canada (the Parole Board) denied W.M.s application for full parole and
    revoked his day parole.

[9]

By order dated March 24, 2020, the majority of
    this court allowed W.M.s appeal and ordered a new trial:
R. v. W.M.
, 2020
    ONCA 236. Miller J.A. dissented. The Crown has initiated an appeal as of right
    to the Supreme Court of Canada.

[10]

By the time of this application, W.M. had served
    19 months in custody and 7 months on day parole or approximately 26 months of
    his four-year sentence. He is currently incarcerated at the Maplehurst
    Correctional Complex.

W.M.S BAIL RELEASE PLAN

[11]

W.M. has been unable to locate a surety in
    support of his application. The only family member with whom W.M. is in contact
    lives in a rural area without the ability to share her basement apartment.  After
    some initial hesitation, the Toronto Bail Program (TBP) accepted W.M. for
    supervision on interim release. W.M.s current circumstances, coupled with the
    on-going COVID-19 pandemic, place two main constraints on his bail release
    plan.

[12]

First, if released, W.M. will have to rely on
    the TBP to find him a place to stay in local shelters. TBP cannot guarantee a
    shelter place for each night but has a very good track record in finding open
    places. Nevertheless, it may be some time before W.M. can find a more permanent
    place to stay.

[13]

Second, the COVID-19 pandemic has forced TBP
    (and some police forces) to suspend in-person reporting and supervision of
    those on interim release. W.M.s bail release plan contains terms that he
    report daily by telephone to Peel Regional Police until he finds a fixed
    address approved by the TBP, at which point the reporting by telephone will become
    weekly.

[14]

Although the Crown is opposing W.M.s
    application, counsel have worked together in a most professional manner to
    develop a set of proposed release conditions. In addition to the reporting
    obligations, the conditions limit W.M.s ability to contact the complainant and
    her family and restrict his access to places that might bring him in contact
    with persons under the age of 18 years of age.

ANALYSIS

[15]

W.M. has not yet had a first appearance in the
    Superior Court of Justice for his new trial. This court has exclusive
    jurisdiction over his interim release:
R. v. Manasseri
, 2017 ONCA 226
    at para. 40.

[16]

W.M. has a constitutional right not to be denied
    bail without just cause and the right to reasonable bail in terms of the conditions
    that might be opposed:
R. v. St-Cloud
, 2015 SCC 27, [2015] 2 S.C.R.
    328, at para. 27. Under Canadian law, the release of accused persons is the
    cardinal rule and detention the exception:
St-Cloud
, at para. 70.

[17]

The Crown concedes that detention is not
    necessary to ensure W.M.s attendance in court:
Criminal Code
, s.
    515(10)(a). Instead, the Crown opposes his interim release on the second and
    third grounds set out in ss. 515(10)(b) and (c).

Second ground: Detention is necessary for the
    protection or safety of the public

[18]

The Crown submits that the detention of W.M. is
    justified because it is necessary for the protection or safety of the public:
    s. 515(10)(b). The Crown argues that several factors establish such necessity:
    (i) the seriousness of the offences; (ii) W.M.s prior convictions for sexual
    offences; (iii) the revocation of his day parole; and (iv) the inadequacy of
    his current release plan.

[19]

The offences that are the subject of the new
    trial are serious, involving allegations of sexual assault and sexual interference
    of W.M.s young daughter in respect of whom he stood in a position of trust. As
    well, W.M. has a criminal record: (i) sexual interference and assault of two
    young girls (1998); (ii) dangerous operation of a motor vehicle (2000); and
    (iii) possession of a weapon and assault with a weapon (2008). The sexual
    interference and sexual assault convictions both involved W.M. touching the
    vaginas of two young girls.

[20]

Against this must be weighed the fact that while
    out on prior interim releases, W.M. complied with his terms of recognizance. He
    has no record of breaching recognizance or terms of probation.

[21]

The Crown acknowledges that W.M. has complied
    with the term of previous interim release orders but points to two more recent incidents
    that prompted the Parole Board to revoke his day parole as indicators of his
    current risk to public safety.

[22]

The first was an altercation with two
    individuals while W.M. was on day parole. The Parole Board Decision stated that
    W.M. alleged the individuals had taken property from him, resulting in W.M.
    acting aggressively towards them; he attempted to attack one and forcefully
    pushed his face into the breasts of another.  W.M. denied the former allegation
    and contended the latter contact was a joke. Significantly, for purposes of
    this application, the incident was reported to police but no investigation
    ensued and no charges were laid against W.M..

[23]

The second incident concerned staff of the
    halfway house finding pornography on W.H.s cell phone. The parole officer was
    unable to verify the ages of the females on the pornography website but thought
    they appeared to be teenagers or women trying to portray themselves as teenage
    girls. The Parole Board was troubled by W.M. taking the position that he did
    not think there was anything wrong with accessing the website notwithstanding
    that his case management team had imposed a condition that he not possess
    pornographic or sexually explicit material.

[24]

In the Crowns view, these two incidents from
    last year, when coupled with the lack of direct, in-person supervision in W.M.s
    proposed release plan, indicate that his continued detention is necessary for
    the protection or safety of the public.

[25]

I am not persuaded by the Crowns submission.
    Certainly, it would be desirable for W.M.s release plan to include some
    direct, in-person supervision. However, that degree of supervision simply is
    not available at this time for two reasons. First, the agencies who typically supervise
    interim releases are not providing direct supervision services because of the
    COVID-19 pandemic. Second, the application materials persuade me that W.M.,
    through his counsel, has made strong efforts to locate a surety, without
    success.

[26]

Further, whatever happened in the incident
    between W.M. and the other two individuals while he was on day parole, no
    charges were laid. Against that must be weighed the absence of any breach of
    recognizance charges during W.M.s most recent pre-trial interim release, as
    well as his earlier ones. W.M. has a track record of complying with terms of
    interim release. In addition, the proposed conditions of release include
    requirements that W.M. not possess or access any images and/or videos of anyone
    under the age of 18 years nor access or possess pornography. This leads me to
    conclude that W.M.s detention is not necessary for the protection or safety of
    the public.

Third ground: Detention is necessary to
    maintain confidence in the administration of justice having regard to all the
    circumstances

[27]

The Crown further argues that W.M.s continued
    detention is necessary to maintain confidence in the administration of justice
    for several reasons: (i) the strength of the Crowns case; (ii) the gravity of
    the offences charged and the circumstances surrounding their commission,
    especially the breach of trust towards a vulnerable child; (iii) the potential
    length of the sentence; and (iv) the lack of significant health risks to W.M.
    of his continued detention.

[28]

When assessing the third ground in s. 515(10)(c)
    of the
Criminal Code
, a court must assess each of the four enumerated
    circumstances, together with any other relevant factors, and consider their
    combined effect:
St-Cloud
, at paras. 55 and 69.

[29]

The offences charged are grave and the
    circumstances of their alleged commission very serious. Both offences carry
    with them a potentially lengthy term of imprisonment. Sexual interference and
    sexual assault of a person under the age of 16 years carry maximum sentences of
    14 years.

[30]

By the same token, these factors were known at
    the time W.M. obtained interim release prior to his first trial, and W.M.
    conducted himself without incident during that interim release.

[31]

As well, W.M. has already served over half of
    the four-year sentence imposed at his first trial. The Crown is filing an
    appeal as of right to the Supreme Court of Canada from the decision of this
    court. It may take 6 months or more for the court to dispose of that appeal. If
    W.M. is not granted interim release at this time and the Crown appeal is
    dismissed, he could end up serving the better part of his sentence.

[32]

The Crown submits that it has a strong case.
    This courts reasons from earlier this year summarized the material evidence at
    trial and the trial judges reasons. The trial judge admitted similar fact
    evidence of the offences to which W.M. had pleaded guilty in 1998. Those
    offences involved sexual assaults by W.M. of two young females in which he
    touched their vaginas during the periods 1985-1987 and 1990-1997.

[33]

W.M. testified while in custody following his
    2000 conviction for dangerous operation of a motor vehicle, he received sex
    offender treatment. In his reasons, the trial judge incorrectly stated that the
    sex offender treatment had occurred in 2008. That led him to conclude that the
    situation-specific propensity that W.M. demonstrated in 1985-1987 and 1990-1997
    was also present in 2008. Since the propensity persisted from 1985 until 2008,
    the trial judge concluded that there is every reason to believe it would still
    be a factor in 2015, when the current offences allegedly occurred. The trial
    judge took into account the long-standing situation-specific propensity that
    [the appellant] had to touch female children inappropriately.

[34]

The majority of this court held that the trial
    judge misapprehended the evidence about when W.M. received sex offender
    treatment. That misapprehension had two consequences.

[35]

First, with respect to the trial judges finding
    that W.M.s propensity was likely active in 2015, the majority stated, at para.
    26:

Under the correct timeline, the appellants
    evidence, including his claim of confidence, would have been more credible.
    Properly understood, the evidence demonstrated that the appellant had received
    sexual offender treatment in 2000, within three years of his previous offence
    in 1998. Furthermore, the propensity had not demonstrated itself in the 15
    years after treatment.

[36]

Second, the majority of the court held that the
    trial judges factual error affected the weight of the similar fact evidence
    stating, at para. 28:

In analyzing the similar fact evidence, the
    trial judge considered how much time had passed between incidents of
    demonstrated propensity. As discussed, the trial judge reasoned that the
    propensity exhibited in the similar fact offences was still a factor in 2015
because
of the factual error that the appellant received
    sexual offender treatment in 2008, only seven years before. This line of
    reasoning would not have been available on the correct timeline of treatment in
    2000. In actuality, the appellant had received treatment eight years earlier,
    meaning 15 years had passed between treatment and the charged offences  more
    than twice as long as the trial judge believed. [Emphasis in original.]

[37]

On an application for interim release, the
    presiding justice must consider the quality of the evidence tendered by the
    prosecution in order to determine the weight to be given to the s. 515(1)(c)(i)
    factor. However, the credibility of witnesses must be analyzed at trial, not at
    the release hearing:
St-Cloud
, at para. 58. Yet, as the majority of
    this court noted in its reasons, the principal issue in the present case is
    credibility: at para. 22. As the majority of this court observed at para. 28,
    had the trial judge correctly understood that 15 years had passed between W.M.s
    sexual offender treatment and the charged offences, then:

This is a material length of time that would
    have affected the trial judges assessment of the appellants evidence that he
    had benefitted from treatment, and relatedly, the extent to which treatment could
    be considered an intervening event that diminished the probative value of the
    similar fact evidence.

[38]

Given that credibility is the central issue in
    this case, and in light of the observations made by the majority of this court
    about the possible diminished probative value of the similar fact evidence if
    properly understood, I do not regard the factor of the apparent strength of
    the prosecutions case as pointing strongly towards the need to detain W.M.

[39]

Finally, W.M. suffers from C.O.P.D. There was a
    suggestion in his application materials that his medical condition would make
    him vulnerable to the COVID-19 virus were he to stay in jail. In response, the
    Crown filed materials that show the risk of contracting the COVID-19 virus
    likely is higher in Toronto area shelters than it is at the Maplehurst, at
    least at the present time.

[40]

At the hearing, W.M.s counsel stated that this
    application would have been brought even in the absence of the COVID-19
    pandemic. Accordingly, I do not place much weight on W.M.s medical condition
    for purposes of the analysis.

[41]

By way of summary, I do not regard the four s.
    515(10)(c) factors, on their own or in combination with the others, as
    necessitating the detention of W.M. to maintain confidence in the
    administration of justice.

DISPOSITION

[42]

For the reasons set out above, I grant W.M.s
    application for interim release pending his re-trial, on the terms and
    conditions set out in the draft release order submitted by counsel on the day
    of the hearing. I have placed my fiat on that draft order.

David
    Brown J.A.


