R. v. K.F.

R. v. K.F. Collection Decisions of the Court of Appeal Date 2025-02-20 Neutral citation 2025 ONCA 134 Docket numbers COA-24-CR-0747, M55712 Judges Zarnett, Benjamin Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. K.F., 2025 ONCA 134[1] DATE: 20250220 DOCKET: M55712 (COA-24-CR-0747) Zarnett J.A. (Motions Judge) BETWEEN His Majesty the King Respondent and K.F. Applicant/Appellant Eric S. Neubauer, for the applicant Gavin MacDonald, for the respondent Heard: January 31, 2025 ENDORSEMENT [1] On April 4, 2024, the applicant was convicted, after trial by judge and jury, of six offences committed against his former intimate partner: assault, assault by choking, assault with a weapon, forcible confinement, sexual assault, and uttering threats. On June 21, 2024, the trial judge accepted the applicant’s guilty plea to one count of failing to comply with a release order. On the same date, the trial judge imposed a global custodial sentence of 78 months less 3 months credit for pretrial custody. [2] The applicant applies for, and the Crown opposes, bail pending his appeal of his April 2024 convictions and the sentence that was imposed. [3] For the reasons that follow, I dismiss the application. The Offences [4] For the purposes of describing the circumstances of the offences, the parties rely on the summary of the complainant’s evidence that was provided by the trial judge in her charge to the jury. According to that summary, the offences occurred during the period between Thursday, January 20, 2022 and Sunday, January 23, 2022 at the apartment the complainant shared with her three children, and included the following: (i) On the Thursday evening, the applicant physically abused the complainant, hitting her with his hand in the face and stomach. On Friday, he hit her again in the face with a closed fist. During the weekend, he spat in her face, choked her, bit her right arm, and urinated on her leg. At one point, he wrapped his belt around his hand and hit her in the face and later stomped on her head. On Sunday, the applicant punched the complainant in the ribs and hit her with an open hand in the face. (ii) During the period of offences, the applicant carried a knife he had taken from the complainant’s kitchen; on Sunday, January 23, he used it to stab her in the palm. (iii) At one point the applicant sexually assaulted the complainant, forcing her to engage in anal intercourse even after she had clearly told him she did not want to. (iv) At another point the applicant told the complainant: “If I find out you’re cheating I’m going to fucking kill you.” (v) While they were in her apartment, the applicant controlled the complainant’s movements – he carried the knife around and watched her while she made food for her children. His assaults and threats generated fear and stress; she obeyed because he had a knife and because she felt unable to leave, especially since she did not want to leave her children behind. (vi) The episode ended on January 23 when, after stabbing the complainant’s hand, the applicant left the apartment for a cigarette. The applicant had smashed the complainant’s cellphone, but she was able to message her sister using her child’s tablet and ask her to contact the police. The police arrived and the applicant was arrested. [5] In addition to the evidence of the complainant, there was corroborating evidence, including photographs taken at the apartment of a knife, belt, and hammer, and photographs of the injuries the complainant suffered. As well, a DNA expert analyzed a blood swab taken from the applicant’s right hand and testified that it strongly supported the conclusion that the DNA in the swab came from the complainant. [6] The applicant did not testify at trial. [7] At the time of these offences, the applicant was bound by terms of release relating to other offences, which included obligations to keep the peace and be of good behavior, and a prohibition on carrying or using a weapon. Criminal Record [8] On November 26, 2024, the applicant was convicted of a different assault and theft committed in 2016 in Montreal. He was sentenced to 3 months in custody. The Release Plan [9] After a period of time in custody following his arrest, the applicant was granted bail pending his trial on the charges that give rise to this appeal and was also released on bail between the time of his conviction in April 2024 and sentencing in June 2024. The terms of that bail required him to live with his sureties – his mother and father – in Montreal. That bail was complied without incident. [10] The proposed release plan for bail pending this appeal largely mirrors the plan that was in place pending trial and sentencing. The applicant’s proposed sureties are his parents. He is to reside with them in Montreal and abide by “the rules of the home.” He may not leave the residence except for medical emergencies or in the presence of one of his sureties. He can have no contact with, among others, the complainant, and may not attend in Ontario except for court appearances or pre-arranged visits with counsel. Each of the sureties makes a financial commitment of $1,500. ANALYSIS The Test for Bail Pending Appeal [11] To obtain bail pending appeal, the applicant must establish that: (1) the appeal is not frivolous; (2) he will surrender himself into custody in accordance with the terms of the order; and (3) his detention is not necessary in the public interest: Criminal Code, R.S.C. 1985, c. C-46, ss. 679(3)(a)(b) and (c). [12] The Crown concedes that the grounds of appeal are not frivolous. The Crown opposes bail on the basis that the applicant has failed to show he will surrender into custody and that his detention is not necessary in the public interest. On the public interest ground the Crown relies on both the public safety and the public confidence in the administration of justice branches. The primary emphasis in argument was, however, on the public confidence branch of the public interest ground, in which residual flight risk and public safety concerns play a role. In my view, that is the appropriate way to analyze this case. [13] Public confidence in the administration of justice involves balancing the reviewability interest (that a person is entitled to a meaningful review process before having to serve all or a substantial part of their sentence) and the enforceability interest (that judgments should be immediately enforceable). The balancing is to be measured through the eyes of a reasonable member of the public: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-27 and 47; R. v. I.W., 2021 ONCA 628 at paras. 16, 24. The Enforceability Interest [14] In this case, the enforceability interest is considerably elevated due to two factors – the seriousness of the crimes and the fact they were committed while the applicant was on release. [15] The seriousness of the crime, including the gravity of the offence and the circumstances of its commission, plays an important role in the consideration of the enforceability interest. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if a person is released on bail pending appeal: Oland, at para. 37. [16] The applicant has been convicted of very serious crimes, involving sexual and other violence against a former intimate partner, committed in the presence of or in close proximity to her children over a three-day period in which he kept the complainant confined. The Crown’s characterizations are apt: “the applicant took over an intimate partner’s home and held her there at knifepoint, victimizing and demeaning her, physically and sexually, again and again over the course of three days during which he kept her, and her children, confined to their apartment”. There were a “myriad [of] violent and degrading assaults”; the applicant “subjected a vulnerable victim to a vicious and continual campaign of abuse. Throughout, he paid no heed to the presence of children in the very apartment where he was committing his crimes”. [17] The length of the sentence imposed underscores their seriousness. [18] As this court recognized in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74: “All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity and dignity are harmfully impacted while being treated as nothing more than an object.” That seriousness is here accentuated by the other assaults, their degrading nature, the extended period over which they took place, the threats, and the confinement, all in the presence of the victim’s children. [19] The enforceability interest is also heightened in this case by the fact that the offences were committed in violation of the terms of the applicant’s release on other charges. The public’s interest in the immediate enforcement of the custodial sentence imposed by the trial judge is higher in the case of a person who committed the offence while in violation of an existing release order: R. v. R.B.-M., 2024 ONCA 787, at para. 21. [20] Terms of release are intended to protect public safety. The complainant and her children were not protected because the applicant did not obey the terms of his release. As noted in Oland, at para. 39, even where public safety concerns “fall short of the substantial risk mark”, they remain relevant in assessing public confidence in the administration of justice and “can, in some cases, tip the scale in favour of detention”. Here, the commission of serious crimes while on release gives rise to those kind of public safety concerns if the applicant were to be released pending appeal. [21] Residual flight risks also elevate the enforceability interest: Oland, at para. 39. Terms of release are intended to ensure the person will surrender into custody as required. Disobedience with any aspect of a release order casts doubt on whether the surrender provisions of a future order will be obeyed. This kind of residual flight risk also elevates the enforceability interest in this case. The Reviewability Interest [22] Where the enforceability interest is thus engaged, weighing the reviewability interest requires a “more pointed consideration” of the strength of the appeal beyond the “very low bar” set by the “not frivolous” standard: Oland, at paras. 20, 40-41. [23] Although the applicant raises a number of grounds of appeal, in argument emphasis was put on one, namely that the trial judge improperly limited the cross-examination of the complainant. [24] As noted above, the complainant testified that the offences occurred in the period January 20 to 23, 2022 and that they involved, in addition to other assaults, her being stabbed once. A memo book of an investigating officer, Officer Wood, contained point form notes that the applicant had arrived at the apartment on January 16, 2022, the abuse had started that evening, and the complainant had been stabbed twice. The location, in the memo book, of the notes that contained the reference to when the applicant arrived and when the abuse started were under a note that appears to indicate the officer had entered the scene and spoken to the victim. The point form note about the number of stabbings were under an earlier point form note that referenced the complainant’s sister (who had called the police). [25] Defence counsel suggested in cross examination that the complainant had told several officers that the applicant had arrived on January 16, 2022 and started assaulting her for a week. The complainant denied the suggestion. The Crown then objected to defence counsel impeaching the complainant with Officer Wood’s notes, on the basis they were point form not direct quotes, and it would be dangerous to make an assertion, in front of the jury that they reflected a statement by the complainant. [26] On the issue of when the appellant arrived at the complainant’s apartment, the trial judge was prepared to allow defence counsel to ask these questions: “Did you tell Officer Wood that he arrived on the 16th?" or “Did you speak to any other officer that night with respect to when he arrived?” But the trial judge agreed with the Crown that the notes could not be put to the witness as a statement by her and used to contradict or impeach the answer given. [27] When defence counsel asked the complainant if she told any officer that she had been stabbed twice, the trial judge accepted the Crown’s objection that the question was improper as there was no good faith basis for asking it. The reference to being stabbed twice was in a portion of the notes of Officer Wood that referenced the complainant’s sister. The trial judge also refused to allow defence counsel to ask the complainant whether she told her sister she was stabbed twice, after enquiring into whether the sister would be called to testify and being told that she was not expected to as she was evading service. The Crown had earlier advised that due to illness, Officer Wood was not going to be called to testify. [28] The trial judge cited several reasons for her rulings, including that the memo book recorded utterances were not formal statements, did not include quotations, and/or were double or triple hearsay. She concluded that a suggestion that the notes contained statements that were made by the complainant, which counsel did not have the ability to prove with evidence, would mislead the jury and that could not be undone by a corrective instruction. [29] The applicant argues that by so ruling the trial judge limited defence counsel to asking open-ended questions on the topics in Officer Wood’s notes that were inconsistent with aspects of the complainant’s trial testimony, improperly restricting cross examination. [30] It is arguable that, given the content of the notes, counsel had a good faith basis to suggest to the complainant( without putting the notes to her) that she had made certain statements to Officer Wood or to her sister, and that the trial judge’s restrictions may have gone beyond what was necessary to prevent that type of questioning from being misleading. As the Supreme Court has explained in R. v. Lyttle, 2004 SCC 5, 1 S.C.R. 193, at para. 48, a good faith basis is: [A] function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. Information falling short of admissible evidence may be put to the witness. In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition. The purpose of the question must be consistent with the lawyer’s role as an officer of the court: to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply in a manner that is calculated to mislead is in our view improper and prohibited. [31] However, an appeal ground that surpasses the not frivolous standard—a very low bar – is not to be equated with a ground that will necessarily succeed. The notes may have provided a good faith basis to make a suggestion to the complainant about what she said rather than asking her an open-ended question, but the main emphasis of the applicant’s argument is less about that than it is about the refusal to allow Officer Wood’s notes to be put to the complainant as a prior inconsistent statement that she had made. The Crown submits that the trial judge was entitled to make that ruling. [32] There is support for the view that it was within the trial judge’s discretion to disallow use of a third person’s notes as a prior inconsistent statement of the witness when there is no evidence the witness has refreshed their memory by using the notes; nor that they have ever seen, read, signed or acknowledged the notes; nor that the note-taker was attempting to quote or record the words of the witness: see R. v. B. (S.) (1996), 28 O.R. (3d) 409, at p. 415. In R. v. Mitchell, 2018 BCCA 52, paras. 36 to 38, the court observed that: [N]otes made by a third party should not be regarded as a witness’ statement unless there is some indication that they accurately set out the witness’ evidence. Notes that record brief snippets of what the witness has said provide selective pieces of information, often without a proper context, and may be of uncertain reliability. Cross-examination on such statements may be unfair and may potentially mislead the trier of fact. […] Ultimately, it is within the discretion of the trial judge to determine, in the particular circumstances of each case, whether a document prepared by a third party is sufficiently reliable to be considered a witness’ statement and if so, whether cross-examination on that statement is to be permitted. [Citations omitted.] [33] Accordingly, in order for the main thrust of the applicant’s argument to succeed, it will have to be shown that the trial judge improperly exercised that discretion in a manner that permits appellate interference. That is a more difficult argument for the applicant to make successfully, given the stated bases for the trial judge’s ruling. [34] Overall, I evaluate the reviewability interest in this case as significant because there are aspects of the ground of appeal that surpass the not frivolous standard. But that significant reviewability interest must be balanced against the elevated enforceability interest. The Final Balancing [35] As indicated above, the enforceability interest in this case is high due to the seriousness of the offences and the circumstances of their commission, and the breach of the prior release order which leaves residual public safety and flight concerns. [36] The applicant points to the fact that after his arrest for these offences, he was released on bail without incident. He argues that this recent history should provide confidence that his proposed bail pending appeal conditions will be obeyed. I do not accept that argument. [37] First, although there is an uninterrupted record of compliance with the terms of the applicant’s bail pending trial for the offences that are the subject of the appeal, he has a record of non-compliance with the terms of the bail that were to govern him when he committed the offences in January 2022. That record is recent, not dated. He committed the offences that are the subject of the appeal in violation of the prior order. [38] In light of that track record, a reasonable member of the public would not have the necessary degree of confidence that bail pending appeal conditions would be obeyed. [39] Second, I agree with the Crown that the terms of release proposed by the applicant are not sufficient to overcome the enforceability concerns. I accept that the applicant’s parents would do their best to ensure he would comply with bail conditions. However, their ability to do so if the applicant chose not to comply is unknown. They have proposed giving a very limited financial commitment. While it is fair to infer they have limited financial means, their precise financial status is not disclosed. While they indicate that a larger financial commitment could be imposed on them, they give no parameters of what would be realistic or affordable given their means. In the end, confidence in the applicant’s compliance with bail terms is very much a function of the ability to trust his intention to comply, and in that regard, his commission of serious offences while previously on release cuts sharply against that trust. [40] Moreover, in balancing the enforceability and reviewability interests, the timing of the appeal is relevant: Oland, at para. 48. The appeal could be heard when the applicant will still have considerable time left to serve on his sentence. Accordingly, the reviewability interest may be partially preserved even without release until the appeal is heard. [41] Viewed from the perspective of a reasonable member of the public, the enforceability interest predominates and outweighs the reviewability interest – even given the nature of one of the grounds of appeal – given the seriousness of the crimes and the lingering public safety and flight risk concerns: Oland, at para. 50. DISPOSITION [42] The application for bail pending appeal is therefore dismissed. Upon perfection of the appeal, the applicant may apply for an expedited hearing date. “B. Zarnett J.A.” [1] This appeal is subject to a publication ban pursuant to ss. 486.4, 517 and 539 of the Criminal Code, R.S.C. 1985, c. C-46.