



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. D.L., 2021 ONCA 538

DATE: 20210723

DOCKET: M52633 (C68522)

Thorburn
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

(Responding Party)

and

D.L.

Appellant

(Applicant)

Alison Craig, for the applicant

Michael S. Dunn, for the respondent

Heard: July 19, 2021 by videoconference

ENDORSEMENT

OVERVIEW

[1]

The appellant, D.L., was convicted of a number
    of serious offences involving a violent sexual assault on an intimate partner.
    Those convictions include sexual assault, assault, mischief, extortion,
    unlawful confinement, criminal harassment and breach of probation. He plead
    guilty to possession of cocaine for the purpose of trafficking. He received a
    global sentence of six years minus credit for presentence custody.

[2]

He has appealed the convictions and sentence.

[3]

In October 2020, the appellant sought and was
    granted bail pending appeal. The bail judge characterized the decision to grant
    bail as a close call.

[4]

On February 1, 2021, the appellant was charged
    with uttering a death threat. His bail pending appeal expired on February 13,
    2021 and he again sought bail pending appeal.

[5]

On February 19, 2021, the application was denied
    for two reasons. First, the appellant was charged with uttering a threat: When
    he went to his fathers premises upon his death to collect certain property, he
    became angry and said to his stepmother If you call the police, I will kill
    you in three seconds. Without acknowledging the veracity of this account,
    counsel submitted before Benotto J.A. that the appellant was upset about his
    father's death. Benotto J.A. did not accept this excuse and suggested that,
    these allegations raise concerns about public safety and public confidence in
    the justice system.

[6]

Second, Benotto J.A. noted that the transcripts
    of the trial were now available. While the merits passed the not frivolous
    standard, Benotto J.A. suggested that the strength of the appeal was not as
    strong as the first bail judge assumed and together these factors
    significantly tip the scales to enforceability. This is no longer a close
    call.

[7]

On June 2, 2021, the charges for uttering a
    death threat were withdrawn after the appellant entered into a common law peace
    bond and in any event, he notes that the charge was brought when his father had
    just passed away and that there was no evidence of any actual violence. He
    applies again for bail pending appeal.

[8]

The Crown opposes the appellants application
    for bail pending appeal on the basis that the applicant has not demonstrated
    that there is a material change in circumstances to justify revisiting the
    February 19, 2021 order denying him bail.

[9]

The Crown also submits that the appellant has
    not demonstrated that his continued detention is not necessary in the public
    interest. The Crown submits that the weak ground of appeal, risk to public
    safety, seriousness of the offences, and lengthy sentence are such that his
    continued detention is necessary in the public interest under s. 679(3)(c) of
    the
Criminal Code
, R.S.C. 1985, c. C-46.

[10]

It is common ground that to obtain bail pending
    appeal pursuant to s. 679(3) of the
Criminal Code
, the applicant
    must establish that: (1) the appeal is not frivolous (s. 679(3)(a)); (2) he
    will surrender himself into custody in accordance with the terms of the order
    (s. 679(3)(b)); and (3) his detention is not necessary in the public interest
    (s. 679(3)(c)). In a s. 679 application, the applicant bears the burden of
    establishing each of the three itemized release considerations, on the balance
    of probabilities, before an interim judicial release order may be made:
R. v.
    Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

EVIDENCE REGARDING THE OFFENCES AT ISSUE

[11]

The convictions being appealed from, pertain to
    the appellant's former girlfriend. At the time, both had entered new
    relationships.

[12]

It is not disputed that within a period of two
    days, the appellant sent 68 emails to the complainant before she agreed to meet
    him. The trial judge held that this was not just annoying  it is
    threatening. The emails refer to things he would do to collect the money she
    owed him, threatening to get the money from her new boyfriend as well as her
    family. The trial judge found the emails constituted criminal harassment. After
    receiving these emails, the complainant agreed to meet him and picked him up in
    her car.

[13]

Their account of what happened thereafter was
    significantly different.

[14]

The appellant claims the complainant yelled at
    him because he had changed the pickup location, they argued and then drove to a
    parking lot where they kissed. After about 20 minutes they left, he asked her
    if she was going to leave the man she was seeing, and she asked whether he
    would leave his girlfriend.

[15]

The complainant agreed that she was angry with
    the appellant for changing the pickup location. She said that when she arrived,
    he tried to convince her to go inside and told her to message the man she was
    seeing to break off the relationship. When she refused, he took her car keys
    and she followed him inside. She claims she saw a person from behind she
    believed to be the homeowner, whom she knew. Thereafter she claims the
    appellant gave her an ultimatum: to message the man she was seeing or take her
    clothes off. She took her clothes off. Once she undressed, the appellant took
    his clothes off and forced her to perform fellatio. He then told her to lie on
    the bed and had intercourse with her and, after ejaculating on her stomach,
    turned her over and continued to have intercourse. She said that thereafter,
    they both showered, and she said she would message her former boyfriend. She
    says the appellant slammed the door shut and raised his fist as though to punch
    her and she started to cry. He then let her leave and she drove him to the
    place where she usually picked him up.

DISCUSSION

[16]

An appellant who has been denied bail pending
    appeal must demonstrate a material change in circumstances on a new
    application. A material change in circumstances requires additional
    information that could lead the judge hearing the application to alter the
    assessment of one or more of the statutory factors set out in section 679(3):
R.
    v. Baltovich
(2000), 47 O.R. (3d) 761 (Ont. C.A.), at para. 6. If
    there has been a material change, the judge must consider the statutory grounds
    and be satisfied that the applicant meets the onus in s. 679(3).

The first issue: Is there a material change
    in circumstances?

[17]

When the appellant appeared before Benotto J.A.,
    he was charged with uttering a threat while in the presence of his surety. She
    held that, taken together, this fact, the public safety concerns, and the
    finding that strength of the case had weakened since the findings of the first
    bail judge (as transcripts of the trial were now available), led her to
    conclude that this was no longer a close call and that the appellant should
    be denied bail pending appeal.

[18]

The question is whether there is a material
    change in circumstances that could alter the assessment that the appellant
    should be detained pending appeal.

[19]

The charge of uttering a threat has now been
    withdrawn and the appellant has entered into a common law peace bond. A peace
    bond is not an admission of guilt but is a preventative order which intended to
    keep the peace. There must be some basis for the bond:
R. v. Musoni
(2009), 243 C.C.C. (3d) 17 (Ont. S.C.), at para. 40, affd 2009 ONCA 829, 248
    C.C.C. (3d) 487, at paras. 3-4, leave to appeal refused, [2009] S.C.C.A. No.
    534.

[20]

Moreover, no reasons were offered by the
    appellant for withdrawal of the charges. I note that before Benotto J.A.,
    without acknowledging the veracity of the Crowns account, counsel submits
    that he was upset about his fathers death.

[21]

Taken together:

a)

the appellants criminal past with multiple
    convictions for violent offences and many breaches of court orders;

b)

these serious convictions;

c)

the appellants agreement to enter a peace bond
    upon withdrawal of the charge of uttering a threat without providing any
    explanation as to why he elected to do so; and,

d)

the enhanced strength of the case after review
    of the transcripts of the evidence at trial,

satisfy me that the change in
    circumstances does not represent a material change such that the decision as to
    whether to grant bail should be revisited. This is especially so given that the
    first bail judge determined that the granting of bail was a close call before
    the trial transcripts were made available.

The second issue: Is there a public safety
    concern that warrants continued detention?

[22]

In any event, I find the public interest
    concerns justify the appellants continued detention.

[23]

The public interest criterion under s.
    679(3)(c) considers the protection and safety of the public: (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 p. 737;
R. v. Stojanovski
, 2020 ONCA 285, at para.
    18.

[24]

Public confidence ought to be considered when
    the offences are serious:
Oland
, at paras. 29-30. The question of
    public confidence must be assessed from the perspective of an informed member
    of the public who understands our bail system, and the facts of the case.

[25]

The public confidence component involves
    weighing enforceability, or the need to respect the general rule of the
    immediate enforceability of all judgments, and reviewability, which concerns
    the need to provide for a meaningful review process, such that the process does
    not require persons convicted of offences to serve all or a significant part of
    their sentence only to have their conviction overturned on appeal:
Oland
,
    at paras. 24-26.

[26]

The more serious the crimes, the greater the
    risk that public confidence in the administration of justice will be undermined
    if the person convicted is released on bail pending appeal:
Oland
, at
    para. 37. The absence of flight or public safety risks will attenuate the
    enforceability interest. Other factors should also be considered where appropriate:
Oland
, at para. 39.

[27]

The appellant was convicted of a serious sexual
    assault, forcible confinement and assault in the context of a domestic
    relationship. At that time, he was on probation.

[28]

He was also convicted of criminal harassment and
    pled guilty to trafficking cocaine. These convictions are not affected by his
    argument on appeal that the trial judge erred in assessing credibility.

[29]

Moreover, the six-year sentence underscores the
    seriousness of the offences:
R. v. S.M.
, 2020 ONCA 427, at para 13.

[30]

Finally, the appellants threats to the
    complainant engage public safety concerns weighing in favour of enforceability
    against release:
Stojanovski
, at paras. 24-27.

[31]

Lastly, in respect of the trial judges
    credibility assessment, while it is possible that the court could accept the
    homeowners evidence that he did not believe the appellant ever brought the
    complainant to his house, it could also accept the complainants evidence that
    she was assaulted there. I note that the homeowner said that he did not know what
    happened when he was not at home.

CONCLUSION

[32]

For these reasons, I find the change in the
    strength of the appellants case is not material and that in any event, the
    public interest favours his continued detention pending the hearing of his appeal.
    The application for bail pending appeal is therefore denied.

J.A.
    Thorburn J.A.


