R. v. Aquino

2026 BCCA 48 R. v. Aquino COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Aquino, 2026 BCCA 48 Date: 20260122 Docket: CA51287 Between: Rex Respondent And Jean Carlo Lombardero Aquino Appellant Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Justice Griffin (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated October 21, 2025 (conviction) (R. v. Aquino, Vancouver Docket 32986-2). Oral Reasons for Judgment Counsel for the Appellant: T.C. Paisana Counsel for the Respondent: M. Shah Place and Date of Hearing: Vancouver, British Columbia January 22, 2026 Place and Date of Judgment: Vancouver, British Columbia January 22, 2026 Summary: The appellant was convicted of sexual assault and sentenced to 30 months' imprisonment. He seeks bail pending his appeal from conviction and sentence, and the Crown does not oppose his application. Held: Application for bail granted, on terms. The appeal is not frivolous. The risk that the appellant may flee to Mexico where he has significant connections is mitigated by the assurances he has provided and conditions of release. The appellant has complied with previous bail conditions and is not a risk to public safety. GRIFFIN J.A.: Introduction [1] On October 21, 2025, the appellant, Mr. Aquino, was convicted of sexual assault. He was sentenced to 30 months' incarceration on December 15. [2] He has filed an appeal of his conviction and will also seek to appeal his sentence. He applies for judicial interim release pending his appeal. Applicable Law [3] A judge of this Court may release an appellant pending appeal pursuant to s. 679(1) of the Criminal Code, R.S.C. 1985, c. C-46: Release pending determination of appeal 679 (1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, (a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678; [4] In the case of a conviction appeal, the relevant considerations are laid out in s. 679(3) of the Criminal Code: Circumstances in which appellant may be released (3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [5] Because the presumption of innocence no longer applies following conviction, the onus is on the appellant to establish the statutory criteria on a balance of probabilities: R. v. Oland, 2017 SCC 17 at paras. 19, 35. [6] The requirement that the appeal not be frivolous is a very low bar: Oland at para. 20. It requires merely that the appeal not be wasting the court's time or be devoid of merit: United States of America v. Bennett, 2014 BCCA 159 at para. 14 (Chambers). [7] The second requirement, that the appellant show he will surrender himself, requires the appellant to show he will not flee the jurisdiction and will surrender as required: Oland at para. 21. Relevant considerations include the history of attendance in court, past compliance with court orders, age, health, employment and housing status, and family circumstances: see e.g., Italy v. Seifert, 2007 BCCA 420 at para. 21 (Chambers). Where the appellant has a foreign passport and ties to another jurisdiction, the Court may look to enhanced bail terms as in R. v. Khojsteh Kashani, 2025 BCCA 454 (Chambers). [8] The final criterion requires the appellant to show their detention is not necessary in the public interest. This consists of two components: public safety and public confidence in the administration of justice: Oland at para. 23. The public confidence component involves a balancing of two competing societal interests, namely enforceability and reviewability: Oland at para. 24. Public confidence is measured through the eyes of a reasonable member of the public, who is "thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values": Oland at para. 47, citing R. v. St-Cloud, 2015 SCC 27 at paras. 74-80. Application [9] The appellant has put together a detailed application, supported by evidence. The Crown agrees that the appellant meets the requirements for bail and satisfies the elements in s. 679(3). Therefore, the Crown does not oppose bail on the proposed terms and conditions. [10] I agree that the appellant meets the requirements for bail set out in s. 679(3). [11] As for the merits of the appeal, the appellant's notice of application for judicial interim release thoroughly canvasses grounds of appeal that are not frivolous. In summary, the appellant intends to argue that inadmissible evidence was placed before the jury, including text messages. He submits, among other things, that the text messages were improperly seized by police in violation of Mr. Aquino's s. 8 Charter rights and that a decision by a case management judge that ruled them admissible was wrongly decided. He submits that a subsequent decision of the Supreme Court of Canada in R. v. Campbell, 2024 SCC 42, establishes that the case management judge's approach in admitting the text messages was in error. He advances other grounds that are not frivolous concerning evidence he submits was wrongly admitted at trial because, he says, it was more prejudicial than probative. [12] As for the flight risk, I note that when first convicted, and before sentencing, the trial judge was not satisfied with the appellant's bail plan and revoked his bail, in reasons reported at R. v. Aquino, 2025 BCSC 2445. The appellant is a Mexican citizen who moved to Vancouver in 2019. His mother and birth father live in Mexico. He has a child living in Mexico. He has a Mexican passport. [13] On today's application, the appellant has provided significantly more assurances that the Crown agrees alleviate the flight risk. [14] The appellant was released on an undertaking with conditions in December 2021, complied with those conditions, and attended court as required for the next four years. While that was before his conviction, he has provided evidence that support his submission that he is not at risk of fleeing. [15] He is engaged to a Canadian woman. This is the same person with whom he was living at the time of sentencing, at the home of her mother, Ms. Gaiga. His fiancée and her mother are both aware of his conviction and attended his sentencing hearing. His fiancée has provided evidence that Mr. Aquino proposed to her in 2023, before his conviction, when his mother was visiting, using his grandmother's engagement ring which his mother had brought with her to Canada. She says they have not yet married because of the costs associated with the wedding. [16] At the time of conviction, her mother, Ms. Gaiga, was willing to post surety in the amount of $50,000, but the trial judge did not consider that to provide a significant incentive to act as a responsible surety given Ms. Gaiga's net worth. [17] On today's application, Ms. Gaiga repeats that she is willing to act as surety for Mr. Aquino, to have him live with her under house arrest pending his appeal, and to support him. I observe that her current affidavit is a model affidavit in terms of the detailed information she provides regarding her assets and her understanding of the implications of acting as surety. She is willing to post $200,000 and deposes of her understanding that this may be forfeited if the appellant fails to comply with any condition of release. [18] I note that Ms. Gaiga's assurances come not from a blood relative of the appellant, and so they carry considerable weight. [19] Furthermore, the appellant's mother and stepfather are in the process of moving to British Columbia on a temporary basis. [20] In addition, the appellant has surrendered his Mexican passport, and the Mexican Consulate in Vancouver has provided a letter giving assurances that they will not provide him with any travel documents while court-ordered prohibitions remain in place. [21] The appellant has agreed to very strict bail terms in addition to the surety of $200,000: strict reporting requirements, 24-hour house arrest, and a term that he surrender himself on the date set for hearing of the appeal. [22] Based on his evidence and plan, I am satisfied that the appellant will surrender himself as and when required by this Court. [23] Finally, I am satisfied that the appellant's detention is not necessary in the public interest. [24] Although his conviction is serious, there is no evidence he poses a risk to public safety, and the terms of release are designed to address any concerns in this regard. [25] Similarly, public confidence in the administration of justice would not be compromised by releasing him pending appeal. A reasonable member of the public would view the societal interest in reviewing criminal decisions for errors as outweighing the interest in enforcing the conviction immediately. [26] In fact, the public's confidence may be undermined by not releasing him, since there is an argument that a good part of his sentence could be served before the appeal is heard. Conclusion [27] For these reasons, the appellant's application for release pending the outcome of his appeal is granted. [28] The terms are: 1. The appellant shall keep the peace and be of good behaviour. 2. The appellant shall report in person to a bail supervisor at 3019 4th Ave, Port Alberni, BC, within two working days of his release from custody, and thereafter shall report to the bail supervisor once per week in person. 3. The appellant shall reside at [address redacted], and provide his telephone number to his bail supervisor. The appellant must not change his address or telephone number without an application to this Court. 4. The appellant shall have no contact or communication, directly or indirectly, with [L.R., T.K., D.E., and U.R.]. 5. The appellant shall not go or be within 100 metres of any place where [L.R., T.K., D.E., or U.R.] live, work, attend school, or worship, or happen to be. If the appellant sees them, he must leave their presence immediately without any words or gestures. 6. The appellant must remain within the province of British Columbia. 7. The appellant must surrender all travel documents in his possession, including any passport, Nexus card, or travel visa, to a peace officer within 48 hours of his release. 8. The appellant shall not apply for any travel documents, including any passport, Nexus card, or travel visa. 9. Upon his release from custody, the appellant shall travel as soon as practicable to [address redacted]. Thereafter, the appellant must obey house arrest by being on the property at [address redacted] (the "Property"), 24 hours a day, 7 days a week. The exceptions are: a. With the prior written permission of the bail supervisor. Such permission is to be given only for compelling reasons. If permission is given, the appellant must carry it on him in paper or electronic format at all times when he is away from the Property. b. Going directly to, or returning directly from, a healthcare facility because of a medical emergency. c. Going directly to, or returning directly from, his in-person reporting with the bail supervisor. d. Between the hours of 10:00 a.m. and 2:00 p.m. each Saturday for the purposes of attending to the necessities of life. 10. The appellant must obey a curfew by being inside the residence at [address redacted], between 10:00 p.m. and 7:00 a.m. The exceptions are: a. Going directly to, or returning directly from, a healthcare facility because of a medical emergency. b. With the prior written permission of the bail supervisor. Such permission is to be given only for compelling reasons. If permission is given, the appellant must carry it on him in paper or electronic format at all times when he is away from the Property. 11. The appellant must present himself immediately at the door when any peace officer or bail supervisor attends to check on him during the curfew. 12. The appellant shall not possess, directly or indirectly, any weapon as defined in the Criminal Code, including without limitation any firearm, crossbow, prohibited and restricted weapon, ammunition or explosive substance, any imitation firearms or weapons, and any related authorizations, licenses, or registration certificates. 13. The appellant must file and serve proof that he has ordered transcripts by February 10, 2026. 14. The appellant shall diligently pursue his appeal. 15. The appellant shall surrender himself into custody at the Sheriff's Office, the Law Courts, 800 Smithe Street, Vancouver, British Columbia, at 9:00 a.m. on August 4, 2026, unless, by that date, the appellant has filed his factum and the conviction appeal has been set down for hearing, in which case the appellant shall surrender at 9:00 a.m. on the date fixed for the hearing of his conviction appeal. "The Honourable Justice Griffin"