COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smithen-Davis, 2020 ONCA 759

DATE: 20201201

DOCKET: M51636 (C65661)

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

(Applicant)

and

Haldane Smithen-Davis

Appellant

(Respondent)

Susan Reid and Megan Petrie, for the applicant

Alan D. Gold, for the respondent

Heard: October 1, 2020 by videoconference

Watt J.A.:

Background

[1]

Three men invaded a home. The home was occupied by
    its owners, a married couple, and their two small sleeping children.

[2]

The invasion did not go as planned. The invaders
    encountered resistance. One died. The other two fled. Left at the scene were a
    pair of gloves and a pair of shoes. DNA testing of the gloves and shoes led to
    two arrests.

[3]

Haldane Smithen-Davis (the respondent) and Jason
    Hamilton were each charged with a single count of break and enter with intent
    arising out of the home invasion. After a joint trial before a judge of the Ontario
    Court of Justice, each was convicted and sentenced to imprisonment for a term
    of nine years. Each appealed conviction and sentence.

[4]

About a year ago, after hearing argument on the
    merits, this panel dismissed both appeals.

[5]

The appellant has applied to the same panel to re-open
    his appeal against conviction. He proposes to adduce evidence that, if
    believed, denies his participation in the home invasion of which he stands
    convicted.

[6]

By this application, the Crown asks us to quash
    the respondent's application. The Crown says that we have no jurisdiction to re-open
    an appeal which has been heard and decided on the merits, or if we have any
    jurisdiction to do so, we should not exercise it in favour of the respondent in
    this case.

[7]

These reasons explain why I would dismiss the Crown's
    application. I would permit the respondent to proceed with his application to
    re-open in accordance with a schedule to be established by the appeal
    management judge.

The Background Facts

[8]

A brief overview of the case as it was presented
    at trial and the procedural history preceding the respondent's application to re-open
    and this response by the Crown will provide a frame of reference for the
    discussion that follows.

The Circumstances of the Offence

[9]

Shortly after midnight one December evening,
    three men broke into a house. The residence was home to a family including
    their two young children who were asleep in their bedrooms. The intruders had
    at least one firearm with them.

[10]

During the invasion, the male homeowner resisted
    the three intruders. During the struggle, he shot one of the intruders who
    subsequently died of his wounds. The other two intruders fled. One left behind a
    pair of gloves, the other, a pair of white shoes.

[11]

None of the occupants of the home could identify
    either of the fleeing intruders.

The Case Against the Respondent

[12]

The case for the Crown at trial consisted of
    several strands of circumstantial evidence. There were BlackBerry Messenger
    messages to support the inference that the respondent was involved in the
    planning of the home invasion in association with others including the man who
    was shot by the homeowner. The respondent's DNA was found on a pair of gloves
    located outside the residence where the home invasion occurred. Shortly after
    the offence, the respondent left Canada on a flight to the U.K. At Canada's
    request, he was extradited to Canada to face trial with his co-accused,
    Hamilton.

[13]

Neither the respondent nor Hamilton testified or
    called a defence at trial.

The Appellate Proceedings

[14]

On October 24, 2019, the appeals of the
    respondent and Hamilton were heard by this panel. At the conclusion of
    argument, the appeals from conviction and sentence were dismissed with reasons
    to follow. Those reasons were released on November 21, 2019.

[15]

On January 17, 2020, the respondent changed
    lawyers. His new counsel, Mr. Gold, inquired of the Registrars office whether
    the formal order dismissing the appeals from conviction and sentence had been
    entered. Advised that the order had been issued in connection with Hamilton,
    but not the respondent, Mr. Gold asked that the formal order not be issued so
    that he could apply to re-open the appeal.

[16]

No formal order dismissing the respondents
    appeals was entered.

The Application to Re-open

[17]

On April 27, 2020 counsel for the respondent
    filed an application to re-open his appeal against conviction. If permitted to re-open
    the appeal, the respondent will seek to have new evidence of his innocence
    admitted. The proposed evidence consists of affidavits from the respondent and
    the co-accused Hamilton. Each asserts that the respondent is innocent of the offence
    of which he has been convicted.

[18]

The application to re-open the appeal from conviction is grounded on
    the principle that the court is not
functus officio
since the final
    order dismissing the appeal has not been issued. It follows that the court has
    the authority to re-open the appeal and should exercise it in these
    circumstances to prevent a miscarriage of justice.

This Application

[19]

Rather than simply contest the merits of the application, the Crown
    applies to quash the application to re-open. It is that application to which
    these reasons respond. The Crown advances two grounds:

i.

the court lacks jurisdiction to permit re-opening
    because it is
functus officio
with the issuance of reasons, the
    failure to enter a formal order being irrelevant to the application of the
    doctrine; and

ii.

in the alternative, if the court has jurisdiction to permit re-opening
    because it is not
functus officio
in the absence of issuance of a
    formal order, it is not in the interests of justice to do so in the
    circumstances of this case.

Ground #1:
Functus Officio
as a Bar

[20]

The principal basis upon which the Crown relies to deny re-opening
    invokes the doctrine of
functus officio
. The competing arguments may be
    summarized briefly.

The Positions of the Parties

[21]

The Crown contends that a court of appeal has no jurisdiction to
    permit re-opening an appeal that has been heard and decided on the merits.
    Appeals are exceptional. They are wholly creatures of statute. The Criminal
    Code provides neither express nor implied authority to permit re-opening. This
    court, as a creature of statute, has no inherent jurisdiction to permit re-opening.
    Nothing statutory. Nothing inherent. Therefore, no jurisdiction.

[22]

The doctrine of
functus officio
, the Crown says, becomes
    engaged and erects a bar to re-opening once the court of appeal has provided
    reasons for its decision. The authorities from other provinces holding that the
    doctrine of
functus officio
does not become engaged until the formal
    order dismissing the appeal is entered have not been followed in Ontario and
    are wrong in law. No Ontario authority requires issuance of a formal order as a
    condition precedent to the operation of the doctrine of
functus officio
as
    a bar to re-opening appeals decided on their merits.

[23]

In any event, the Crown continues, the authorities that permit re-opening
    despite the absence of a formal order are limited to cases in which the
    decision has been based on a misapprehension of the trial record, or where re-opening
    is necessary to avert a miscarriage of justice. That is simply not this case.
    All that said, in this province, the dispositive factor in the engagement of
    the doctrine of
functus officio
is the issuance of reasons disposing of
    the appeal on its merits. The issuance or entry of the formal order is of no
    moment.

[24]

The respondent rejects the Crown's analysis. The single event which
    engages the application of the doctrine of
functus officio
to bar the
    remedy he seeks is issuance of the formal order dismissing the appeal. Without
    more, the issuance of reasons imposes no bar. No Ontario authority denies the
    significance of entry of the final order. What is more, entry of the final
    order provides a bright line point of demarcation.

[25]

In this case, it was perfectly proper to inquire of the Registrar whether
    the formal order dismissing the appeals had issued. In its absence, as the
    authorities that have examined the issue make clear, it remained open to the
    respondent to apply to re-open the appeal from conviction based on new evidence
    which had not been tendered for admission before the court on the hearing of
    the appeal. The application to quash the application to re-open should be
    dismissed.

The Governing Principles

[26]

The parties occupy common ground that this Court has jurisdiction to
    permit re-opening of an appeal. They disagree about the scope of that jurisdiction;
    whether it extends to appeals heard and decided on the merits, and if it does,
    when that jurisdiction ends. Upon delivery of reasons for the decision? Or only
    when the formal order recording the disposition is entered?

[27]

As a matter of first principle, appellate rights, procedures on
    appeal, and jurisdiction of appellate courts are wholly creatures of statute.
    From this principle, it follows that, if a power to re-open appeals exists, it
    must be anchored in some statutory authority, whether expressly stated or
    arising by necessary implication:
Kourtessis v. M.N.R
., [1993] 2 S.C.R.
    53, at pp. 69-70;
R. v. H. (E.F.); R. v. Rhingo
(1997), 115 C.C.C. (3d) 89
    (Ont. C.A.), at pp. 95-96, leave to appeal refused, [1997] S.C.C.A. No. 256.

[28]

The statutory rights of appeal for which the
Criminal
    Code
makes provision furnish no authority for re-opening appeals, whether
    heard and decided on the merits or otherwise. Nor does the rule-making
    authority of ss. 482 and 482.1. The power to make rules is limited to matters
    which are already within the jurisdiction of the court. Likewise, the
    referential incorporation by s. 683(3) of the powers exercisable in civil appeals
    is of no service on this issue. Nor is it advanced as such by either party in
    this case:
H. (E.F.)
;
Rhingo
, at pp. 97-100.

[29]

A potential source of authority to permit re-opening
    inhabits the inherent or ancillary jurisdiction of a court, including a
    statutory court like the court of appeal, to control its own process. This
    jurisdiction includes the authority to regulate the manner in which the parties
    exercise any statutory right of appeal:
H. (E.F.)
;
Rhingo
, at
    pp. 100-101.

[30]

The jurisdiction of an appellate court to re-open
    an appeal has been authoritatively recognized. The scope of that authority,
    however, less clearly marked out.

[31]

In
H. (E.F.)
;
Rhingo
, two unrelated
    parties sought to have their appeals re-opened. Each appeal had been argued on
    the merits and decided. Formal orders dismissing each appeal had been issued.
    This court concluded that the jurisdiction to re-open an appeal was limited to
    appeals that had not been heard on their merits. The jurisdiction did not
    extend to permit re-opening of appeals that had been heard and decided on the
    merits:
H. (E.F.)
;
Rhingo
, at pp. 106-107.

[32]

In a footnote, the court in
H. (E.F.)
;
Rhingo
,
    appears to accept that a court is not
functus officio
when it delivers
    its reasons for decision, but only when the order recording the courts
    disposition has been entered:
H. (E.F.)
;
Rhingo
, at footnote
    10, p. 106. In other words, for the purpose of determining whether a court is
functus
    officio
, there is a difference between giving reasons for decision and
    entering the formal order reflecting the disposition of the appeal:
R. v.
    Hummel
, 2003 YKCA 4, 175 CCC (3d) 1 at para. 11, leave to appeal refused,
    [2002] S.C.C.A. No. 434.

[33]

In courts that have considered the issue, the
    prevailing view is that the defining event for the purposes of the application
    of the doctrine of
functus officio
is the entry of the order disposing
    of the appeal not the giving or release of reasons for the decision:
Hummel
,
    at para. 11;
H. (E.F.)
;
Rhingo
, footnote 10 at p. 106;
R.
    v. Chudley
, 2015 BCCA 391, 125 W.C.B. (2d) 129 at para. 9;
R. v.
    Villeda
, 2010 ABCA 410, 44 Alta. L.R. (5th) 300 at para.
7;
R. v. Moura
(2003), 172 C.C.C. (3d) 340 (Ont. C.A.), at para.
20.

[34]

Where an appellate court hears an appeal on its
    merits and issues reasons for its dismissal of that appeal, but does not issue
    a formal order recording that dismissal, the court is not
functus officio
.
    Thus,
functus officio
does not erect a bar to re-opening. The
    authorities support the existence of a discretion in those circumstances to
    permit re-opening:
Hummel
, at paras. 3, 14-15;
Chudley
, at para.
    7;
R. v. Chow
, 2003 BCCA 248, 57 W.C.B. (2d) 297 at para. 10;
R.
    v. Blaker
(1983), 6 C.C.C. (3d) 385 (B.C. C.A.), at p. 387. See also,
R.
    v. Adams
, [1995] 4 S.C.R. 707, at para. 29.

[35]

The circumstances in which a court may exercise
    its authority to permit re-opening are closely circumscribed. The core question
    is whether the applicant has established a clear and compelling case that a
    miscarriage of justice will likely occur absent re-opening. This requires a
    searching evaluation of the importance of the issues the applicant seeks to
    raise on the re-opening:
Chow
, at para. 11;
Villeda
, at para.
    11.

[36]

Among the relevant factors a court might
    consider in deciding whether to permit re-opening of an appeal previously
    argued and decided on the merits are:

i.

the principle of finality;

ii.

the interests of justice including finality and the risk of a
    miscarriage of justice;

iii.

whether the applicant has established a clear and compelling case to
    justify a re-opening;

iv.

whether, in hearing and deciding the appeal on the merits, the court
    overlooked or misapprehended the evidence or an argument advanced by counsel;
    and

v.

whether the error alleged concerns a significant aspect of the case.

See,
Hummel
,
    at para. 24;
Chow
, at paras. 9, 11.

[37]

What emerges from the authorities is a rule prohibiting
    re-opening of an appeal when the court is
functus officio
. The court
    is
functus officio
when:

i.

the appeal has been argued and decided on the
    merits;

ii.

the court has issued reasons for its decision; and

iii.

a formal order has been entered or issued recording the disposition
    of the appeal.

This principle
    is consistent with the Ontario cases of
H. (E.F.)
;
Rhingo
;
Moura
;
R. v. Dennis
(2005)
, 208
    O.A.C. 8 (C.A.); and
R. v. Perkins
, 2017 ONCA 152, 347 C.C.C. (3d) 58.

[38]

What remains less clear in this province is
    whether, absent a formal order recording the disposition of an appeal, the
    court has jurisdiction to permit re-opening where the appeal has been argued and
    decided on the merits.

The Principles Applied

[39]

As I will explain, I would not quash the
    application to re-open the appeal on the basis that we lack jurisdiction to do
    so because the appeal has been heard and decided on the merits.

[40]

My analysis is grounded on the fundamental
    principle that a court has a limited power to reconsider its judgment disposing
    of a case as long as the court is not
functus officio
:
Adams
,
    at para. 29. A court continues to be seized of the case and is not
functus
until
    the formal judgment has been drawn up and entered:
Adams
, at para. 29.

[41]

Consistent with this fundamental principle that
    a court is not
functus
until a formal judgment has been drawn up and
    entered, courts in other provinces and territories have held that a court of
    appeal has authority to permit re-opening of an appeal heard and decided on the
    merits until the formal order has been issued:
Hummel
, at paras. 3,
    15;
Chow
, at paras. 10-11;
Villeda
, at paras. 6-8. The source
    of the authority to re-open is the inherent jurisdiction of the court, even a
    statutory court like a court of appeal, to control its own process and to
    prevent an injustice:
Hummel
, at para. 14.

[42]

At first light, it may appear that my conclusion
    is at odds with some of the language in the prior decisions of this Court in
H.
    (E.F.)
;
Rhingo
, and more recently in
Perkins
. In my
    view, neither is controlling in the circumstances of this case.

[43]

In
H. (E.F.)
;
Rhingo
, the order
    dismissing the appeals had been entered. The court was
functus officio
as a result. The all-encompassing statement that re-opening was confined to
    appeals not argued on the merits is contradicted by footnote 10, in which the
    court endorsed the view that a panel is not
functus
when the judgment is
    released, but only upon formal entry of the order. Further, the
    all-encompassing statement is

inconsistent with the earlier decision of
    the Supreme Court of Canada in
Adams
, to which reference does not
    appear to have been made. Finally, the court in
H. (E.F.); Rhingo
did
    not have the benefit, unlike this court, of the later authorities from other
    courts of appeal considering the issues raised here.

[44]

In
Perkins
, there are unqualified
    statements that there is no jurisdiction to re-open an appeal heard on the
    merits: for example, at paras. 11-13. Yet in para. 12, the court refers to the
    bar against re-opening operating when all appeal rights have been exhausted
    and the final court is
functus officio
". In support of its
    unqualified statement that "there is no jurisdiction to re-open an appeal
    heard on its merits", the court cites,
R. v. Purdy
, 2010 BCCA 413,
    261 C.C.C. (3d) 33, leave to appeal refused, [2011] S.C.C.A No. 431;
R. v.
    Widdifield,
2016 BCCA 412, 134 W.C.B. (2d) 9, leave to appeal refused, 2017
    CarswellBC 978; and
R. v. Akinbiyi,
2008 SKCA 92, 78 W.C.B. (2d) 694.
Purdy
at para. 30 makes it clear that the bar only applies if the appeal has been
    decided on its merits
and the order entered
" [Emphasis mine.]
Widdifield
and
Akinbiyi
are distinguishable as, in those cases, a formal order had
    already been entered.

[45]

In the result, I am satisfied that the
    jurisdiction to permit re-opening an appeal heard and determined on the merits
    remains until the order reflecting the disposition has been entered. In other
    words, the jurisdiction remains until the court is
functus officio
.

Ground #2: The interests of justice Test

[46]

The Crown advances an alternative argument in
    support of its motion to quash the application to re-open the hearing. This
    submission focuses on the interests of justice which, the Crown says, warrant
    the order it seeks.

[47]

A brief reference to the circumstances in which the
    application to re-open arises provides a helpful frame for the submissions of
    counsel and an assessment of their merits.

The Evidentiary Foundation

[48]

If permitted to pursue his application, the
    respondent seeks to introduce the evidence of his former co-accused Hamilton,
    together with his own evidence. The essence of the proposed evidence is that
    the respondent was not present at the scene of the home invasion and did not
    participate in it. Hamilton acknowledges that he was in the immediate vicinity
    of the home but says that he did not enter it or participate in what occurred
    inside.

The Positions of the Parties

[49]

The Crown contends that the discretion to permit
    re-opening is limited to cases in which it is warranted by the interests of
    justice. The interests of justice require balancing the interest of an accused
    in having an adjudication of their potential guilt determined on the basis of
    all available evidence against the public interest in finality and the
    integrity of the criminal justice process. In addition, since the application
    to re-open is grounded on the proposed introduction of fresh or new evidence,
    the court must consider, and the respondent meet the requirements for the
    introduction of fresh evidence on appeal. Those requirements  admissibility,
    cogency, and due diligence  can be assessed in a preliminary way on this
    motion to quash.

[50]

In this case, the Crown continues, the interests
    of justice favour quashing the application. To permit re-opening would be to
    allow the respondent to revisit and reverse tactical decisions made by very
    experienced counsel on the basis of evidence that is patently self-serving and
    incredible. Although the proposed evidence would be admissible if tendered at
    trial, it beggars belief, thus lacking cogency. It is both riddled with implausibilities
    and of dubious origin.

[51]

The respondent says that the interests of
    justice warrant a hearing of his application to re-open. Two persons attested
    to the respondent's innocence of the offence of which he stands convicted. A
    hearing is required to avoid a potential miscarriage of justice.

[52]

The respondent says that scepticism about the
    legitimacy of the affiants claims warrants investigation by the Crown and
    searching cross-examination on the affidavits. This will provide a fulsome
    record for review and a determination on the merits. That the respondent is
    unaware of his precise whereabouts at the time of the home invasion is scarcely
    remarkable. The extraordinary, for example, involvement in a home invasion in
    which a person was killed, is memorable. The mundane, another day
    indistinguishable from the next, is not.

[53]

This is not a case, the respondent continues, in
    which the affiants have nothing to lose by swearing false affidavits. Neither
    is serving a life sentence. A conviction of perjury or obstructing justice
    would attract a substantial penitentiary sentence delaying their release from
    custody for a considerable time. Nor is the absence of an affidavit from trial
    counsel of any consequence since it could add nothing of importance on the
    issues to be decided.

The Governing Principles

[54]

The basis upon which the respondent seeks to
    have the appeal re-opened is to permit the introduction of new evidence. That
    evidence, if believed, tends to show that the respondent was not a party to the
    offence of which he stands convicted.

[55]

The principles which control our decision in
    these circumstances fall into two discrete groups. Some are concerned with the
    standard to engage the discretion to permit re-opening. Others have to do with
    the basis upon which new evidence may be received on appeal. Common to each
    discretionary exercise is the interests of justice", a phrase of frequent
    incidence in statutory provisions and one that, like a chameleon, takes its
    colour from its surroundings.

The Decision to Permit Re-Opening

[56]

The re-opening decision requires consideration
    of all the circumstances. Two competing principles are at work. The need for
    finality in criminal litigation favours a restrictive approach. Prevention of
    potential miscarriages of justice, on the other hand, supports a more expansive
    approach:
Hummel
, at para. 17. The interests of justice includes
    both the interest of the accused in having their guilt adjudicated on the basis
    of all the available evidence, and that of the state in the integrity of the
    criminal justice process including its finality and order:
R. v. M. (P.S.)
(1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411;
R. v. Manasseri
,
    2016 ONCA 703, 132 O.R. (3d) 401 at para. 200, leave to appeal refused, [2016]
    S.C.C.A. No. 513.

[57]

The interests of justice" standard to
    permit re-opening of an appeal heard and determined on its merits requires a
    case-specific examination of all the circumstances. An all-inclusive list of
    relevant factors eludes composition, but among those a court might consider are
    these:

i.

the principle of finality;

ii.

the risk of a miscarriage of justice;

iii.

the cogency of the case for re-opening;

iv.

the nature of the error or omission alleged to require re-opening;
    and

v.

the significance of the error to the disposition of the appeal.

See,
Hummel
,
    at para. 24;
Chow
, at para. 9.

The Admissibility of Fresh Evidence

[58]

Under s. 683(1)(d) of the
Criminal Code
,
    a court of appeal may receive the evidence of any witness if the court
    considers it in the interests of justice to do so. Where the proposed new
    evidence relates to an issue of fact contested at trial, in this case, the
    respondent's participation in the events charged, three factors govern the
    decision:

i.

admissibility;

ii.

cogency; and

iii.

due diligence.

See,
Truscott
    (Re),
2007 ONCA 575
, 225 C.C.C.
    (3d) 321, at para. 92;
Manasseri
, at para. 203.

[59]

Admissibility and cogency are conditions
    precedent which a proponent must meet before the proposed new evidence may be
    received. The new evidence must be
admissible
under the governing
    rules of evidence. To satisfy the
cogency
requirement, the new
    evidence must be:

i.

relevant, in that it bears upon a decisive or
    potentially decisive issue at trial;

ii.

credible, in that it is reasonably capable of belief; and

iii.

probative, such that if believed, it could reasonably, when taken
    with the other evidence adduced at trial, be expected to have affected the
    result.

See,
Truscott
,
    at para. 99;
Manasseri
, at para. 205.

[60]

Due diligence is not a precondition to the
    reception of new evidence tendered on appeal. Rather, it exists to ensure
    finality and order. It only enters the analysis when the admissibility and
    cogency conditions have been satisfied. The due diligence inquiry requires the
    court to consider why the evidence was not adduced at trial. It yields where
    its rigid application might lead to a miscarriage of justice but remains an
    important factor in the totality of the circumstances in each case:
R. v.
    Hay
, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 64;
Manasseri
, at
    paras. 206, 219-222.

The Principles Applied

[61]

I would not quash the respondents application
    for re-opening on the basis that it is not in the interests of justice that it
    be permitted to proceed.

[62]

As I have already concluded, the respondent's
    application for re-opening is not barred by the application of the doctrine of
functus
    officio
. This court has the authority to permit the appeal previously
    heard, determined, and dismissed to be re-opened if it is in the interests of
    justice to do so. In this case, whether re-opening may be permitted, for all
    practical purposes, depends upon whether the court decides to receive the new
    evidence the respondent tenders for admission.

[63]

In principle, it should be open to the opposing
    party to quash an application to re-open an appeal heard, decided, and
    dismissed on the merits where the application to re-open has no reasonable
    prospect of success. A similar authority exists at the trial level. For example,
    where the presiding judge may dismiss any pre-trial or other application on the
    basis of the materials filed, without further hearing or inquiry, if satisfied
    that there is no reasonable prospect that the application could succeed. See, r.
    34.02 of the
Criminal Proceedings Rules
of the Superior Court of
    Justice.

[64]

In this case, the motion to quash seeks to
    abrogate the re-opening of an appeal in which evidence from two persons will be
    tendered purporting to show that the respondent did not participate in the offence
    of which he stands convicted. The proposed evidence relates to the single
    controverted issue at trial  the identity of the respondent as one of the
    persons responsible for the home invasion.

[65]

The re-opening application is inextricably bound
    up with the tender of new evidence for reception on the rehearing. The
    determination of whether new evidence will be received is made by the panel hearing
    the re-opening application. That panel determines whether the interests of
    justice warrant reception of that evidence.

[66]

In this case, there is no doubt that the new
    evidence is admissible under the governing rules of evidence. If believed, it
    tends to show that the respondent was not present and did not participate in
    the home invasion charged in the indictment. The cogency of the new evidence is
    controversial, especially in light of the expert evidence about DNA identified
    at the scene of the home invasion. Also controversial is the influence of the
    due diligence factor.

[67]

As we have already seen, whether new evidence
    proposed for reception will be admitted is an issue to be decided by the panel
    before whom the evidence is tendered. Further, this determination is made on
    the basis of a mature record, including cross-examination of the affiants and,
    in many instances, other evidence.

[68]

To succeed in quashing the respondent's
    application to re-open the appeal, the Crown must be able to establish on the
    record, as it currently exists, that the application to re-open has no
    reasonable prospect of success. On this issue, the Crown fails, as it did in
    advancing a similar argument in
R. v. Forcillo
, 2018 ONCA 402, 141
    O.R. (3d) 752, leave to appeal refused, [2018] S.C.C.A. No. 258.

Disposition

[69]

For these reasons, I would dismiss this
    application. The application for a re-opening of the appeal is not barred by
    the doctrine of
functus officio
. Nor is quashing it in the interests
    of justice on the ground that it lacks any reasonable prospect of success.

[70]

The application to re-open the respondent's
    appeal may proceed in accordance with the schedule to be set by an appeal
    management judge.

Released:
    JS December 1, 2020

David Watt J.A.

I agree. Janet Simmons J.A.

I agree. B.W. Miller J.A.


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. T.A., 2020 ONCA 783

DATE:
    20201211

DOCKET:
    C67552

Simmons,
    Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty
    the Queen

Respondent

and

T.A.

Appellant

Lauren M.
    Wilhelm, for the appellant

Jerry
    Brienza, for the respondent

Heard:
    November 16, 2020 by video conference

On appeal from the conviction entered on
    June 28, 2019 by Justice Catrina D. Braid of the Superior Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was charged with indecent assault
    of his niece,
[1]
B.F., and sexual assault and sexual interference in relation to B.F.'s son,
    J.F. The charges involving B.F. related to the period January 1, 1976 to
    January 1, 1978; those involving J.F., January 1, 2011 to January 1, 2015.

[2]

Following a 2019 trial, the trial judge found
    the appellant not guilty of the charge involving B.F., but guilty of the
    charges involving J.F. The sexual assault charge was ultimately conditionally
    stayed pursuant to
Kienapple.
[2]

[3]

The appellant appeals from his conviction for
    sexual interference. The main issues on appeal are whether the trial judge
    erred by approaching the conflicting evidence as a credibility contest and
    further erred by misapplying the principles in
J.J.R.D
.
[3]

[4]

For the reasons that follow, the appeal is
    allowed, the conviction set aside and a new trial is ordered.

Background

[5]

J.F. testified he was about six years old when
    the incident giving rise to the charges occurred. Together with his other
    evidence, this likely placed the events in the early summer of 2013.

[6]

The appellant lived next door to J.F.'s
    grandparents. On an occasion when he was visiting his grandparents, J.F. went
    to the appellant's house with his Hot Wheels Collectors Catalogue intending to
    assess the value of a collection of toy cars at the house.

[7]

According to J.F., he was sitting on the floor
    in an upstairs bedroom where the cars were located. The appellant came into the
    room, scooped him up, put him on the bed, pulled down his pants and underwear
    and then rubbed, licked and kissed J.F.'s penis. The incident lasted about two
    to three minutes. It ended abruptly when J.F.'s grandmother arrived at the appellants
    home and called J.F. downstairs. J.F. did not see the appellant again that day.
    And he did not discuss the cars with the appellants wife on that occasion.

[8]

J.F. testified that he did not immediately tell
    anyone about the incident because, some time previously, the appellant read him
    a book about monsters and whispered to J.F. that he could control monsters.
    J.F. said that scared him. When asked if anything else scared him, J.F.
    testified the assault may have happened twice. He was not sure, events had blended
    together into one big blob. If there was a second time, it was the same as
    the first time except he did not have his Hot Wheels Collectors Guide with him.

[9]

J.F. disclosed the incident to his mother in
    March 2018 after similar allegations were made by the appellant's granddaughter
    and grandson, J.F.s best friend. Those charges were ultimately withdrawn. J.F.
    knew that his mother was upset about the charges being withdrawn.

[10]

J.F.'s grandmother, S.P., testified that B.F.
    had instructed her not to let J.F. go to the appellant's home alone when the
    appellant was present. S.P. recalled that, on one occasion during the summer,
    when J.F. was about six, she sent J.F. to the appellant's house while she
    finished baking a cake, believing the appellant was not there. However, when
    she went over to the house and called upstairs for J.F. to come home, to her
    surprise, the appellant came down the stairs.

[11]

The appellant testified and denied the
    allegations. He explained that he worked in the aircraft industry and traveled
    globally to provide aircraft engineering and other services in several sectors,
    including the U.S. military sector. When he traveled, he could be away for a
    long time, as much as a year or more. He said he had never been upstairs alone
    with J.F., and had never read him a book about monsters, or for that matter any
    other book. Indeed, he said that he had never read books to his own children.

[12]

In cross-examination, the appellant was asked
    where he was working between 2011 and 2015. He said recently he had spent a lot
    of time in El Paso, Texas and San Marcos, Texas. When asked by the trial judge to
    focus on 2011 to 2015, he said those were the places where he was consistently.
    But he had also been to other places. When asked about duration, he said in
    2015 he spent over a year in El Paso. In response to the Crowns suggestion
    that the timeline concerning when he was home between 2011 and 2015 was a
    little fuzzy, he responded that he would be in and out a lot, so he did not
    keep a record of time.

[13]

The appellant's wife, C.A., said J.F. came to
    their home unaccompanied around four times. She was home alone on those
    occasions and the appellant was not present. When asked during examination
    in-chief if the day S.P. was baking a cake provided her with any point of
    reference, C.A. said that could be the day J.F. was playing upstairs with her
    grandchildren.

[14]

However, C.A. did recall a day when J.F. came
    over with his Hot Wheels Catalogue. She testified that happened once. When
    referred to the 2011 to 2015 timeframe in the indictment, she thought it would
    be closer to the 2014, 2015 years. C.A. testified that the appellant was not
    present on the occasion when J.F. came over with the Hot Wheels Catalogue. He
    was either in Texas or Wyoming or Ohio. Depending on the year, he could have
    been away anywhere from a year to six months.

[15]

C.A. recalled that she was in the living room reading
    a book. While looking at the cars, J.F. came downstairs from time to time to
    tell her about the value of the cars.

[16]

In cross-examination, C.A. confirmed that J.F.
    came over unaccompanied four times. She described the purpose of his visit on
    each occasion and clarified that she did not know about any day that S.P. was
    baking a cake. However, she agreed that the day J.F. came over with his Hot
    Wheels Catalogue was a memorable detail.

[17]

Although C.A. initially testified that she
    thought the Hot Wheels visit happened in 2014 or 2015, she agreed J.F. would
    have been six in the summer of 2013. In response to the suggestion that she did
    not know where the appellant was when the alleged incident happened, she
    asserted that she knew where he was in 2013, 2014 and 2015. In 2013, he was in
    El Paso, Texas from May until the following May. After he came home, the couple
    separated for a while. In 2015, the appellant was in Wyoming from October until
    March 2016. C.A. reiterated that the appellant was not home on the day of the
    Hot Wheels visit.

The trial judge's reasons

[18]

The trial judge focused the initial part of her
    analysis on J.F.s testimony and the reliability and credibility of his
    evidence. During the course of that portion of her analysis, she considered the
    [c]onflicting evidence regarding when J.F. was upstairs in [the appellants
    home]. She noted that defence counsel had argued that J.F. said he was only at
    the appellants home with his Hot Wheels Catalogue on one occasion. She said if
    this were true and she was unable to reject C.A.s evidence that the appellant
    was not home on that day, C.A.s evidence may give rise to a reasonable doubt.

[19]

As for C.A.s evidence that the appellant was
    not home on the day that J.F. came over with his Hot Wheels Catalogue, the trial
    judge noted that J.F. did not say that the day the incident occurred was the
only
day he
    went over with his Catalogue. Further, J.F. said he did not show the
    appellant's wife the cars and the Catalogue on the day the offence occurred.
    Concerning this evidence, the trial judge concluded:

I am not satisfied that C.A.s evidence
    provides a reasonable doubt or definitively tells me what occurred on this
    particular occasion. It may be that she was talking about a different occasion,
    I cannot be certain.

[20]

In response to a defence argument that there was
    no opportunity for the appellant to read the book about monsters to J.F. and
    that the evidence was fabricated, the trial judge said she accepted J.F.s
    version of events as credible on this point. She said she would return to the
    issue later in her reasons.

[21]

Although J.F. testified he was moderately
    confident that a second incident occurred, the trial judge was not satisfied
    that was the case. She noted that J.F. was certain that the first event
    occurred and was clear and articulate in his description of that event. She
    concluded that the fact that J.F. said there may have been a second incident
    that occurred in exactly the same fashion did not undermine his reliability and
    credibility in relation to the first incident.

[22]

Ultimately, the trial judge found J.F. a
    credible witness. While she acknowledged some inconsistencies in his evidence
    in relation to other evidence, she found they related generally to peripheral
    matters such as timing and sequence and that the core details of his account
    were corroborated by the evidence of adult witnesses. She concluded he was both
    reliable and credible.

[23]

After reaching this conclusion, the trial judge
    turned to the defence evidence. She identified some minor issues with that evidence:

·

the appellant gave an inaccurate answer to the
    police when he said no in response to a question whether J.F. came over to
    visit. However, his explanation that J.F. was not visiting him but rather his
    grandchildren was not unreasonable;

·

the appellant's evidence about his work schedule
    and travel especially concerning the time of the alleged events was vague; and

·

the defence evidence concerning where the
    appellant was working at the time of the alleged events was inconsistent, the
    appellant saying Texas, his wife, C.A., saying Wyoming.

[24]

The trial judge concluded her reasons with a section
    she titled
W.(D.)
Analysis.
    She began this analysis by saying:

The testimony of J.F. and [the appellant] are
    diametrically opposed. They cannot both be telling the truth.

[25]

She then stated that because the appellant called
    evidence, she was required to apply
W.(D.)
[4]
. She
    began by noting that the appellant adamantly denied the allegations and that
    there was nothing more he could do or say in a case of this nature. However,
    she found herself in the same position as the trial judge in
J.J.R.D
.
    There was nothing in the substance of the appellant's evidence or in the manner
    in which he testified that would cause her to reject his evidence. Nonetheless,
    she said,

However, based on the totality of evidence
    which I do accept, I must reject it.
It simply cannot be true.
I am
    entitled to take into account the strength of the Crown's case and reject [the
    appellant's] evidence based on a considered and reasoned acceptance of the
    conflicting evidence from the Crown's witnesses. This is a sufficient basis upon
    which to reject an accused's evidence.

I therefore find the Crown has proven, beyond
    a reasonable doubt, [the offences]. [Emphasis added; citations omitted.]

Discussion

[26]

We accept the appellants argument that the
    trial judge erred by approaching the conflicting evidence in this case as a
    credibility contest and failing to properly consider reasonable doubt.

[27]

It is noteworthy in our view, that the trial
    judge began her
W.(D.)
analysis by observing that the evidence of the appellant and J.F. was
    diametrically opposed and stating, [t]hey both cannot be telling the truth.
    Such a statement is the antithesis of a
W.(D.)
analysis, which requires the trier of fact to consider whether,
    even if she does not accept the defence evidence, she is still left with a
    reasonable doubt by it.

[28]

It is not the task of a trier of fact to
    determine which of two versions of an event is true. Rather, the triers task
    is to determine whether the Crown has met its burden of proving the elements of
    an offence beyond a reasonable doubt. As Cory J. held at p. 757 of
W.(D.)
:

It is incorrect to instruct a jury in a
    criminal case that, in order to render a verdict, they must decide whether they
    believe the defence evidence or the Crown's evidence. Putting this either/or
    proposition to the jury excludes the third alternative; namely, that the jury,
    without believing the accused, after considering the accused's evidence in the
    context of the evidence as a whole, may still have a reasonable doubt as to his
    guilt.

[29]

A finding that a complainant is both reliable
    and credible is not sufficient to satisfy the burden of proof beyond a
    reasonable doubt. As noted by this court in
R. v.
    J.W.
, 2014 ONCA 322, 316 O.A.C. 395, at para. 26: a
    reasonable doubt can survive a finding that the complainant is credible.

[30]

Here, the trial judge purported to rely on
J.J.R.D.
to support her rejection of
    the appellants evidence and to justify her finding that the Crown met its
    burden of proof. However, what the trial judge failed to do was consider
    whether the evidence, as a whole, raised a reasonable doubt.

[31]

Nowhere in her
W.(D.)
analysis does the trial judge refer to reasonable doubt. In both
    the opening and concluding statements of her analysis, she refers to the fact
    that the two versions of the event (namely, that it happened and that it did
    not happen) cannot both be true. Although that may be accurate as far as it
    goes, it fails to address the fundamental issue of reasonable doubt or reflect
    an appreciation that what was at issue was not a credibility contest. Rather,
    it was whether the Crown had proven guilt beyond a reasonable doubt.

[32]

Further, although she referred to reasonable
    doubt elsewhere when she recognized the possibility that C.A.s evidence could
    raise a reasonable doubt if J.F. had been to the house with his Hot Wheels
    Catalogue on only one occasion, the trial judge assessed the question whether
    C.A.s evidence raised a  reasonable doubt in relation to only one aspect of
    the evidence.

[33]

Specifically, in closing submissions, defence
    counsel asserted that J.F. testified he went to the appellants house with his
    Hot Wheels Catalogue only once. In her reasons, the trial judge said she
    relistened to J.F.s evidence and he did not make such a statement. However, in
    considering this issue, the trial judge did not refer to C.A.s evidence that
    J.F. had been to her house with the Hot Wheels Catalogue on only one occasion. Had
    she considered that evidence, she would also have had to consider the lack of specific
    evidence from J.F. concerning how many times he had been to the house with his
    Hot Wheels Catalogue.

[34]

The trial judge also mistakenly concluded that
    the appellants evidence and C.A.s evidence were inconsistent on the issue of
    where the appellant was when the offence was alleged to have occurred.

[35]

The trial judge said the appellant was in Texas
    while C.A. said he was in Wyoming. However, that does not accurately reflect
    their evidence. On J.F.s evidence, the offence most likely occurred in the
    summer of 2013. The appellant and C.A. both identified Texas as the appellants
    destination in 2013.

[36]

To invoke
J.J.R.D.
, a trial judge must assess the whole of the evidence and reject the
    defence evidence based on a considered and reasoned acceptance of the Crowns
    evidence:

An outright rejection of an accused's evidence
    based on a considered and reasoned acceptance beyond a reasonable doubt of the
    truth of conflicting credible evidence is as much an explanation for the
    rejection of an accused's evidence as is a rejection based on a problem
    identified with the way the accused testified or the substance of the accused's
    evidence:
J.J.R.D.
, at
    para. 53.

[37]

Here, we are not satisfied that the trial judge
    fulfilled the
J.J.R.D.
requirements. She failed to assess the whole of the evidence or to do so
    accurately in considering whether it was capable of raising a reasonable doubt.

[38]

Further, we conclude that the trial judge
    approached the
W.(D.)
analysis as a credibility contest rather than what it is: a method of assessing
    whether the Crown has met its burden of proving guilt beyond a reasonable
    doubt.

[39]

Based on the foregoing reasons, we allow the
    appeal.

Conclusion

[40]

The appeal is allowed, the conviction is set
    aside, and a new trial is ordered.

Janet
    Simmons J.A.

P.
    Lauwers J.A.

I.V.B.
    Nordheimer J.A.

[1]
The appellants wifes sister is B.F.s mother.

[2]

Kienapple v. The Queen
,
    [1975] 1 S.C.R. 729.

[3]

R v. D. (J.J.R.)
(
2006)
, 215 C.C.C. (3d) 252
(Ont. C.A.),
leave to appeal refused, [2007]
    S.C.C.A. No. 69.

[4]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.


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. T.S.D., 2020 ONCA 773

DATE: 20201203

DOCKET: M51923 (C68717)

Jamal
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

T.S.D.

Applicant

Jonathan Shulman, for the applicant

Jennifer Trehearne, for the respondent

Heard: November 13, 2020 by video conference,
    with supplemental submissions in writing

REASONS
    FOR DECISION

A.

introduction

[1]

The applicant pleaded guilty to sexual assault and
    distributing intimate images without consent. He and another male had
    videotaped each other sexually assaulting the complainant at a house party while
    she was unconscious. The applicant then circulated the video on a group chat on
    Snapchat. The applicant was sentenced to 18 months imprisonment followed by
    two years probation and various ancillary orders.

[2]

The applicant now applies for bail pending his
    conviction and sentence appeal. He alleges that his guilty plea was not
    informed and claims ineffective assistance of counsel.

[3]

For the reasons that follow, the application is
    dismissed.

B.

background

(a)

The sexual assault

[4]

On May 19, 2018, the applicant (then aged 19) was
    at a house party attended by 15 to 20 people at the house of the complainant
    (then aged 18), whom he knew from high school. Her parents were away. Everyone
    was drinking, including the complainant. She had also been smoking marijuana.
    At about 1:40 a.m., she felt intoxicated and dizzy, so she went upstairs, lay
    on her parents bed, and fell asleep, fully clothed in jeans and a T-shirt.

[5]

When she awoke, she was naked from the waist
    down. She had pain in her lower abdomen and was bleeding from her vagina. A
    friend told her he had received sexual videos of her and some males through a
    group chat on Snapchat. She did not recall engaging in sexual activity, but remembered
    seeing the applicant in the bedroom, and thought it must have been he who recorded
    the videos because she recalled seeing him through the flash of a camera. She
    also remembered waking up and seeing three or four people in the room laughing.
    She told them to get out and fell asleep again.

[6]

The next day, the complainant reported the sexual
    assault to the police.

(b)

The applicant is arrested and his phone is seized

[7]

Two days later, the police arrested the applicant
    at his apartment. They charged him with gang sexual assault and distributing
    intimate images without consent.

[8]

When the police arrested the applicant, they
    seized his cellphone incident to arrest and later obtained a warrant to search it.
    They found the videos on his phone, which showed the applicant penetrating the
    complainants vagina with a brush handle while laughing and another male
    digitally penetrating the complainant while the applicant filmed. The
    complainant appeared to be unconscious.

(c)

The court appoints counsel for the applicant
    under s. 486.3 of the
Criminal Code

[9]

On June 10, 2019, at the Crowns request, Botham
    J. of the Ontario Court of Justice appointed counsel for the applicant under s.
    486.3 of the
Criminal Code
, R.S.C. 1985, c. C-46, to conduct any
    cross-examination of the complainant at the applicants preliminary inquiry, scheduled
    for July 8, 2019. The applicant previously had a lawyer but could no longer
    afford him.

(d)

The applicant pleads guilty

[10]

On July 8, 2019  the first day of the applicants
    preliminary inquiry, scheduled before Maxwell J. of the Ontario Court of
    Justice  the applicants counsel asked for the matter to be held down until
    after a break to explore resolution. It appears from the record before me that
    by July 6, 2019, the applicant had personally retained her since she later
    issued an invoice to the applicant himself. On the afternoon of July 8, the
    applicants counsel advised the court that the applicant would plead guilty to the
    lesser included offence of sexual assault
simpliciter
(rather than
    gang sexual assault) and distributing intimate images without consent.

[11]

The applicants counsel advised Maxwell J. that the
    applicants guilty plea was an informed plea, reached after the applicant had
    several opportunities to meet with counsel and review the Crown disclosure with
    her:

So, I can advise Your Honour that

this is an informed plea; that Mr. [T.S.D.] has an
    opportunity, several opportunities to meet with me and review the disclosure.
    He does understand that in entering a guilty plea today he is giving up his
    right to a trial and any defences that may be available to him.

He does understand that whatever position on
    sentence the Crown takes
is not going to be
the
    same position as the defence and that ultimately the position on sentence
is going to be
up to Your Honour. He does understand
that
these convictions, likely convictions,
    that will result from his guilty pleas will form part of his criminal record.
    And he is doing so voluntarily
without any
pressure
    from any outside sources. Is all of that correct, Mr. [T.S.D.]?

[T.S.D.]: Yes, maam.

[12]

Maxwell J. then conducted a plea inquiry to
    ensure that the applicant was pleading guilty with full knowledge of what
    youre giving up. The applicant confirmed to the court that he understood that:

·

He was pleading guilty to sexual assault and distributing
    intimate images of someone without her consent, that he had had sexual contact
    with someone without her consent, and then distributed or allowed to be
    distributed intimate images of her without her consent;

·

The Crown would likely seek an upper reformatory
    sentence (which was explained to him as in the range of 18 months to two years
    less a day), though the sentence imposed by the court could he higher;

·

The convictions would form part of his criminal
    record and he would have to register with a sex offender registry and be
    subject to reporting requirements; and

·

There might be other consequences for the
    applicant, such as immigration consequences, being unable to work in certain
    fields, or restrictions on travel, all of which he had considered.

[13]

The applicant was then arraigned and pleaded
    guilty. An agreed statement of facts was read into the record, which the
    applicant admitted was substantially correct. Maxwell J. then found the
    applicant guilty.

(e)

The applicant is sentenced

[14]

Sentencing submissions were made on March 3,
    2020. The Crown sought a sentence of imprisonment of two years less a day followed
    by two years probation, and various ancillary orders, including a mandatory
    order for 20 years under the federal
Sex Offender Information Registration
    Act
, S.C. 2004, c. 10 (SOIRA), because the Crown had proceeded by
    indictment:
Criminal Code
, s. 490.022(3)(b). The applicants counsel
    urged a sentence of 9 to 12 months imprisonment, followed by two years
    probation. She noted the applicant would be subject to a lengthy SOIRA order.
    Mr. [T.S.D.] likely wont be able to work in his chosen field [of health and
    fitness] or face an extremely uphill battle to do so.

[15]

After submissions on sentence, the sentencing was
    adjourned to April 14, 2020, but did not proceed then because of the pandemic. The
    applicant was on bail throughout this period.

[16]

The court ultimately pronounced sentence on September
    22, 2020. The applicant was sentenced to 18 months imprisonment, followed by
    two years probation, a weapons prohibition for 10 years, a SOIRA order for 20
    years, and a DNA order.

(f)

The applicant appeals and applies for bail
    pending appeal

[17]

The applicant is represented by new counsel
    before this court. His notice of appeal, dated October 16, 2020, asserts that his
    guilty plea was not informed and alleges ineffective assistance of counsel. His
    notice of appeal states the following grounds:

1.
July 08
th
, 2019 Change of election and guilty plea over
    lunch time break; Incompetency of 486 counsel;

2.
The 486 counsel failed to have one judicial pre-trial on behalf of
    the appellant
prior to
, or after changing his
    election.

3. Submission of counsel and Book of
    authorities were
completely
absent material
    for an 18 month sentence. S.486 Counsel was under prepared.

4. S.486 Counsel did not spend time,
    presenting all mitigating circumstances but rushed through submission.

5. Charter defenses were not presented to the
    court or the appellant.
Moreover, it
was not considered
    a mitigating factor by the [sentencing] judge in her reasoning.

[18]

During the oral hearing of this application, applicants
    counsel referred to several documents not filed on the application, some of
    which the Crown had not seen before. The Crown did not object to applicants
    counsel providing these documents to the court after the hearing. I therefore
    allowed them to be filed and both parties filed further written submissions on their
    import.

[19]

I should add that the applicants current counsel
    and Crown counsel have been unable to resolve whether or under what conditions Crown
    counsel should be permitted to speak to the applicants former counsel to
    explore the claim of ineffective assistance of counsel. Applicants current counsel
    also advised that the applicants former counsel obtained the applicants
    instructions in writing for the guilty plea, but a copy of those instructions
    has not been filed because the applicant claims they are privileged and he has been
    unable to agree with the Crown on how to address this issue.

C.

discussion

[20]

To obtain bail pending appeal under 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)).

[21]

Parliament saw fit to place the onus on the
    applicant for bail pending appeal because the applicant has now been convicted
    and sentenced, and therefore no longer benefits from the presumption of
    innocence:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 35.

[22]

I will address each of these three elements
    below.

(1)

Has the applicant established the appeal is not
    frivolous?

[23]

The first element requires the applicant to
    establish that the grounds of appeal are not frivolous. This is a very low
    bar:
Oland
, at para. 20. The applicant must establish that the proposed
    grounds of appeal raise arguable issues. An applicant need not establish a
    likelihood, much less a certainty of success on appeal, but must be able to
    point to a viable ground of appeal that would warrant appellate intervention if
    established:
R. v. Manasseri
, 2013 ONCA 647, 312 C.C.C. (3d) 132, at
    para. 38.

[24]

The purpose of the not frivolous threshold is
    to require the applicant to demonstrate that the appeal has some merit. If
    this were not so, the appellate process could be abused by those intent on
    forestalling the execution of a custodial sentence: Justice Gary T. Trotter,
The
    Law of Bail in Canada
, loose-leaf, 3rd. ed. (Toronto: Thomson Reuters,
    2017), at pp. 10-13 (footnote omitted).

[25]

The Crown contends the applicant has not
    established any arguable grounds of appeal. As I explain below, based on the
    material before me, I agree.

[26]

I will first deal with the applicants claim
    that his guilty plea was not informed, and then address his claim of ineffective
    assistance of counsel.

(i)

Is it arguable the guilty plea was not
    informed?

[27]

In his affidavit on this application, the applicant
    alleges that his guilty plea was not informed because he and his counsel did
    not discuss SOIRA or how long I could be designated a sexual offender. He also
    claims he was not aware of what the maximum penalty was for each offence for
    which he pleaded guilty.

[28]

To be valid, a guilty plea must be voluntary,
    unequivocal, and informed. To be informed, the accused must be aware of the
    nature of the allegations made against him, the effect of his plea, and the
    consequence of his plea:
R. v. Wong
, 2018 SCC 25, [2018] 1 S.C.R.
    696, at para. 3, citing
R. v. T.(R)
(1992), 10 O.R. (3d) 514 (C.A.),
    at p. 519. The consequences of the plea include the criminal consequences and the
    legally relevant collateral consequences:
Wong
, at para. 4.

[29]

An accused seeking to withdraw their guilty plea
    because they were unaware of criminal consequences at the time of the plea must
    demonstrate prejudice by filing an affidavit establishing a reasonable
    possibility that [they] would have either (1) pleaded differently, or (2)
    pleaded guilty, but with different conditions:
Wong
, at para. 19. An
    accused need not show a viable defence to the charge in order to withdraw a
    plea on procedural grounds:
Wong
, at para. 23.

[30]

The applicants affidavit on this application focuses
    mainly on the alleged ineffective assistance of counsel. As the Supreme Court
    of Canada cautioned in
Wong
, however, the ineffective assistance of
    counsel framework is not relevant to whether a guilty plea is informed. The
    ineffective assistance of counsel framework focuses on the
source
of
    the misinformation (or incomplete information) rather than the misinformation
    itself. Assessing whether prejudice arises from misinformation does not depend
    upon its source:
Wong
, at para. 24 (emphasis in original); see also
    para. 60,
per
Wagner J. (as he then was) (dissenting, but not on this
    point). I will therefore focus on the misinformation the applicant alleges.

[31]

As noted, the specific misinformation the
    applicant alleges is: (1) he was unaware he would be subject to a SOIRA order
    or for how long; and (2) he did not know the maximum penalty for the offences
    for which he pleaded guilty.

[32]

Neither claim raises an arguable ground of
    appeal.

[33]

The trial judge canvassed the SOIRA issue with
    the applicant at length at the time of his plea:

THE COURT:  One of the other things that will
    flow from these convictions is that
youll have to
register
    on a Sex Offender Registry. Did you know that?

[T.S.D.]: No, I did not.

THE COURT: Okay. So,
you
    should
know that because its an important consequence of the things
    that youre pleading guilty to. Do you want to take some time to speak to your
    counsel about what that means and

[T.S.D.]: If that is possible, then yes.

THE COURT: Yes.

[T.S.Ds counsel]: So, Your Honour, we had
    discussed it under another name but he is aware. Thank you.

THE COURT: Okay. Alright. So, now youve
    refreshed
your thoughts on
what youve
    discussed before, do you understand what that means?

[T.S.D.]: Yes, maam.

THE COURT: Okay. And therell be, you know,
    reporting requirements
as a result of
that
    which Im sure your counsel has explained to you but you understand how that
    will work?

[T.S.D.]: Yes, maam.

THE COURT: Okay. And then
lastly,
I dont know your personal circumstances so,
    you know, for some people when theyre pleading guilty to offences it might
    have immigration consequences, for example. It might not apply to you if youre
    a citizen but it could have other consequences related to
being able to work
in certain fields,
being able to travel
, things like that. Have you
    thought about those
kinds of
consequences
    other than the fact that theres going to be entries on your record or give you
    a record if you dont have one?

[T.S.D.]: Yes, maam.

THE COURT: Okay. And, if having thought about
    all those other potential consequences and the registering on the Sex Offender
    Registry, are you still prepared to go forward with your plea?

[T.S.D.]: Yes, maam.

[34]

I accept that this exchange did not mention the SOIRA
    order being for 20 years, but neither did it misinform the applicant about its duration.
    Instead, the applicant acknowledged to the court he understood how the reporting
    requirements of the sex offender registry worked and that he had discussed this
    issue with his counsel.

[35]

Even though I must assess the applicants
    awareness of the criminal consequences of his conviction at the time of his
    guilty plea on July 8, 2019, I am fortified in my conclusion that there is no
    arguable ground of appeal by what was said during sentencing submissions on March
    3, 2020. Crown counsel stated: Given that the Crown has proceeded by
    indictment, a SOIRA order is also mandatory for 20 years. The applicants counsel
    then reiterated this: we also need to take into account the other consequences
    of this conviction; a criminal record and a lengthy SOIRA order. The sentence was
    not imposed until September 22, 2020  seven months later. Yet there is no
    evidence that between the sentencing submissions and when the sentence was
    imposed the applicant expressed any concern about the SOIRA order. To the
    contrary, at the close of the sentencing submissions, the applicant apologized
    and expressed remorse for the offence.

[36]

The applicant has thus not raised an arguable
    issue of misinformation or incomplete information. Nor has he expressly stated that
    absent any such misinformation or incomplete information he would have pleaded
    differently or insisted on different conditions.

[37]

I reach the same conclusion about the
    applicants claim that his guilty plea was not informed because he allegedly did
    not understand his maximum sentence exposure. When he pleaded guilty, the applicant
    acknowledged he understood the sentence to be sought by the Crown, and that, as
    Maxwell J. explained to him, [i]t could go higher than what the Crown is
    asking for.

[38]

The applicant has therefore not raised an
    arguable issue that his guilty plea was not informed.

(ii)

Is it arguable there was ineffective
    assistance of counsel?

[39]

The applicants second principal ground of
    appeal alleges ineffective assistance of counsel. He says that he did not
    receive competent legal advice about whether to plead guilty.

[40]

The legal principles governing a claim of
    ineffective assistance of counsel were recently summarized in
R. v.
    Hartling
, 2020 ONCA 243, 150 O.R. (3d) 224, at paras. 72-74:

An ineffective assistance of counsel claim has
    two components: performance and prejudice. The appellant must show that (i)
    trial counsels acts or omissions amounted to incompetence, and (ii) a
    miscarriage of justice occurred:
R. v. Prebtani
, 2008 ONCA 735,
243 O.A.C. 207
, at paras. 3-4.

To establish a claim of ineffective assistance
    of counsel, the appellant must establish:

1. The facts that underpin the claim;

2. That counsels
    representation was inadequate; and,

3. That counsels inadequate representation
    resulted in a miscarriage of justice.

This test presents a high bar
that is
not easily met:
R. v. Cherrington
, 2018
    ONCA 653,
at
    para. 25.
As Watt J.A. explained, once the first
    step of the test is established, the analysis turns to the third step, or the
    prejudice component, of whether there was a miscarriage of justice. If there
    was no prejudice, then it is undesirable for the court to proceed to the
    second step, or the performance component, of the test:
R. v. Girn
, 2019
    ONCA 202,
373
    C.C.C. (3d) 139
, at para. 92
. The analysis
    under the performance component proceeds upon a strong presumption that
    counsels conduct fell within the wide range of reasonable professional
    assistance:
R. v. G.B.D.
, 2000 SCC 22
,
[2000] 1 S.C.R. 520
, at para. 27
. The presumption of competence is tested against a standard of
    reasonableness, and accords no place to hindsight:
Cherrington
, at
    para. 26; see also
G.B.D.
, at para. 27.

[41]

Under the prejudice component, the applicant
    need not establish a viable defence to the charges against him. He need only
    show that, had he received competent legal advice, he would not have pleaded
    guilty:
R. v. Cherrington
, 2018 ONCA 653, at para. 46;
R. v. Quick
,
    2016 ONCA 95, 129 O.R. (3d) 334, at paras. 36-38.

[42]

Here, the applicant raises several complaints in
    his affidavit about counsels representation, but does not expressly state that
    had he received competent legal advice he would not have pleaded guilty. Even
    had the applicant so stated, nothing in the evidence before me at this stage
    raises an arguable issue that counsels competence was inadequate or that it
    caused a miscarriage of justice:

·

The Crown had a formidable case. The applicant was
    recorded on videos sexually assaulting the complainant and distributed the
    videos to others. The complainant herself recalled seeing the applicant through
    the flash of the camera. The videos were found on his phone, which the police seized
    incident to his arrest and then searched only after obtaining a search warrant.

·

The applicants counsels
    dockets reveal that she reviewed the Crown disclosure with the applicant several
    times, met with him to prepare for the preliminary inquiry, and spent time
    preparing to cross-examine witnesses. She reviewed the law on consent, intoxication,
    and voluntariness. She discussed the applicants jeopardy with him at length.
    Her dockets also record his instructions to her to plead guilty on the day of
    his plea. She then prepared for sentencing and delivered what
, in my view,
was an effective sentencing submission.

·

By negotiating a plea
    before the preliminary inquiry began, the complainant did not have to testify,
    which even the Crown acknowledged was incredibly mitigating for the applicant.
    The applicant was then sentenced to 18 months imprisonment, which was below
    the sentence sought by the Crown and at the low point of the range mentioned to
    him at the time of his plea.

[43]

I thus conclude that the applicants claim of
    ineffective assistance of counsel, like his claim of an uniformed guilty plea,
    does not raise an arguable ground of appeal. These two conclusions provide a
    sufficient basis for me to dismiss this application. Even so, I will consider
    the two other branches of the test for bail pending appeal.

(2)

Has the applicant established he will surrender
    himself into custody
in accordance with
the
    terms of any release order?

[44]

I am satisfied the applicant has established
    that he would surrender himself into custody in accordance with the terms of
    any release order. The Crown accepts that the applicant was on bail pre-sentence
    without incident. Under the applicants release plan, he proposes to live with
    his parents under their supervision. He also proposes to wear an ankle monitor.
    On this basis, I conclude that the applicant meets the second criterion for
    bail pending appeal.

(3)

Has the applicant established his detention is
not necessary
in the public interest?

[45]

The Crown also opposes bail on the third criterion
    for bail pending appeal, the public interest criterion under s. 679(3)(c). The Crown
    submits that the applicant has failed to establish that his detention is not
    necessary in the public interest.

[46]

The public interest criterion under s.
    679(3)(c) has two elements: public safety and public confidence in the
    administration of justice:
Oland
, at paras. 23, 26.

(a)

Public safety

[47]

Public safety considerations under s. 679(3)(c)
    relate to the protection and safety of the public, which tracks the secondary
    ground requirements of s. 515(10)(b) governing an accuseds release
    pending trial:
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 p. 737;
R. v.
    Stojanovski
, 2020 ONCA 285, at para. 18.

[48]

Public safety considerations alone can justify
    refusing bail in the public interest. And even when an applicant meets the
    public safety threshold, residual public safety concerns or the lack of any
    public safety concerns should still be considered as part of the public
    confidence analysis:
Oland
, at para. 27.

[49]

I am satisfied that public safety considerations
    alone do not justify the applicants continued detention. Nor does the Crown
    contend this. The applicant is a first-time offender. There is no evidence of a
    substantial likelihood that he would commit another offence or interfere with
    the administration of justice. However, his offences were serious, so I cannot
    say his release would pose no public safety concerns. In any event, I am satisfied
    that his proposed release plan would address any residual public safety
    concerns.

[50]

I now turn to the public confidence component.

(b)

Public confidence in the administration of
    justice

[51]

The public confidence component involves
    weighing two competing interests: enforceability and reviewability.
    Enforceability concerns the need to respect the general rule of the immediate
    enforceability of all judgments. Reviewability concerns the need to provide for
    a meaningful review process, one that 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.

(i)

The enforceability interest

[52]

In assessing the enforceability interest, the
    seriousness of the crime plays an important role. The more serious the crime,
    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.

[53]

Here, I find the enforceability interest is
    significant. The applicant was convicted of two serious sexual offences. He sexually
    assaulted the complainant when she was incapacitated and vulnerable. He
    assaulted her in her home, a place where she should have felt safe. He used an implement
    to violate her in a way that was especially degrading and humiliating. He did so
    with others, recorded the encounter, and then circulated it to a group. He revealed
    a callous demeanour during the assault, laughing and smiling as he continued. All
    this has had a lasting impact on the complainant, as she revealed in her victim
    impact statement. The applicant disputes none of these essential facts.

[54]

The enforceability interest is, however, attenuated
somewhat by the lack of flight risk and the
    substantially reduced public safety risk that I have mentioned.

[55]

I now turn to consider the reviewability
    interest.

(ii)

The reviewability interest

[56]

In assessing the reviewability interest, the
    strength of the appeal plays a central role:
Oland
, at para. 40. A
    preliminary assessment of the strength of the appeal is made by reviewing the
    grounds in the notice of appeal for their general legal plausibility and
    foundation in the record, to determine whether those grounds clearly surpass
    the not frivolous criterion:
Oland
, at para. 44. A broader public
    interest in reviewability transcends an individuals interest in any given case:
Oland
, at para. 45.

[57]

Here, the reviewability interest is weak. Even
    if I am wrong in my earlier conclusion that the grounds of appeal are not
    arguable, they do not clearly surpass the not frivolous criterion.

(iii)

Balancing the public interest in
    enforceability and reviewability

[58]

In conducting a final balancing of the
    enforceability and reviewability interests, public confidence in the
    administration of justice is measured through the eyes of a reasonable member
    of the public, someone who is thoughtful, dispassionate, informed of the
    circumstances of the case and respectful of societys fundamental values:
Oland
,
    at para. 47. Anticipated delay in deciding an appeal, relative to the length of
    the sentence, is also a consideration, to ensure that the reviewability
    interest remains meaningful:
Oland
, at para. 48.

[59]

The COVID-19 pandemic is also a factor that may be
    considered as part of the public interest criterion, though the weight to be
    given to it depends on the particular circumstances of each case: see e.g.,
R.
    v. Kazman
, 2020 ONCA 251, 386 C.C.C. (3d) 424, at paras. 17-21;
R. v.
    Omitiran
, 2020 ONCA 261, at para. 26; and
R. v. Jesso
, 2020 ONCA
    280, at para. 36. Here, the applicant is young and in apparently good health.
    This factor was not invoked, and I give it little weight.

[60]

On the record before me, I conclude there is a
    strong public interest in enforceability and only a weak interest in
    reviewability. That tips the scales decisively in favour of the applicants
    continued detention pending appeal.

[61]

I appreciate that the anticipated delay in
    scheduling and deciding the appeal relative to the length of the sentence (18
    months) must be considered to ensure that the applicants reviewability
    interest remains meaningful. I therefore order this appeal to be expedited
    under s. 679(10) of the
Criminal Code
.
The parties may arrange an
expedited
date
    with the courts Appeal Scheduling Unit.

[62]

While this application was under reserve, counsel
    for the applicant emailed the court and sought to rely on new grounds of appeal
    and new evidence on this application. The Crown objected. As noted above, I
    have already permitted the applicant to adduce additional evidence and
    submissions after the oral argument. In the context of this application, I am
    not prepared to do so again.

D.

disposition

[63]

The application for bail pending appeal is
    dismissed. The appeal is expedited under s. 679(10) of the
Criminal Code
.

M.
    Jamal J.A.