Her Majesty the Queen v. K.M.
[Indexed as: R. v. M. (K.)]
2017 ONCA 805
Court of Appeal for Ontario, Strathy C.J.O. (in Chambers)
October 20, 2017
Criminal law — Bail — Bail pending appeal — Application pursuant to
s. 680 of Criminal Code for an order that a panel of appellate court
review a decision of single judge denying bail pending appeal —
Accused appealing conviction for sexual interference on two daughters
over a period of years — Accused arguing on appeal that having
innocent explanation for sexual touching and also arguing innocent collusion and tainting of complainants’ evidence — Bail judge not committing material errors of fact or law in finding that merits of appeal were
weak, that offences were serious and that accused’s detention was necessary to maintain public confidence in administration of justice — Bail
judge’s decision not clearly unwarranted.
The accused was convicted on two counts of sexual interference in relation to
his daughters. He appealed, relying on innocent explanations for the sexual
touching and alleging innocent collusion and tainting of the complainants’ evidence. His application for bail pending appeal was dismissed. The bail judge, noting the absence of trial transcripts, found that the first ground of appeal did not
pass the “not frivolous” threshold but that the ground based on innocent collusion
and tainting was not frivolous. She found that accused’s conviction for sexually
assaulting two of his daughters over several years was sufficiently serious to
warrant a more probing inquiry into the merits of the appeal was required and
that the grounds of appeal had to clearly surpass the minimal standard required
to meet the “not frivolous” criterion. She found that the innocent collusion and
tainting ground did not meet that standard because it would depend on a successful challenge of the trial judge’s weighing and assessment of the evidence.
She found that the applicant did not represent a threat to the public. However,
she found that the accused had not established that his detention was not necessary in the public interest. The accused applied for an order pursuant to s. 680 of
the Criminal Code, R.S.C. 1985, c. C-46 directing a review of the bail judge’s
order by a panel of the Court of Appeal.
Held, the application should be dismissed.
The bail judge did not commit any material errors of fact or law. The bail
judge’s assessment of the seriousness of the offences was consistent with the trial
judge’s conclusion. This court has previously denied bail in cases involving sexual
offences against children which were characterized as “serious offences”. In
assessing the strength of the ground of innocent tainting and collusion, it is relevant that the defence at trial appears to have been an allegation that the children were lying and deliberately colluded against him. It would be difficult to
mount the innocent tainting defence on appeal if it was not raised at trial. Further, the trial judge’s reasons explored the circumstances surrounding the allegations being made and she found that there was no collusion by the complainants.
The absence of trial transcripts does not preclude a judge considering bail pending appeal from applying a higher standard than the low bar of frivolousness.
The accused can support the grounds of appeal by other means such as an affidavit from trial counsel or providing the electronic recordings of the trial. The trial
judge did not adopt an overly expansive reading of the “public confidence” test