CITATION: R. v.

Ururyar, 2016 ONSC 5056

COURT FILE NO.: CR-10000187-00BR
DATE: 20160809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:

)
)

) Robert Wright, for the Crown

)
)
Respondent )
)
)

HER MAJESTY THE QUEEN

-and-

MUSTAFA URURYAR

) MarkHalfyardandBreana Vandebeek,
) for the Defendant/Applicant
)

Defendant/Applicant )
)
)

) HEARD: July 29 and August 2, 2016,

) at Toronto, Ontario

Michael G. Quigley J.
Reasons for Ruling
Re: Post-Conviction Bail Review Pending Appeal
Introduction and background to this application

[ 1]
On this application, Mustafa Ururyar seeks an order pursuant to section 520 of the
Criminal Code (the "Code") granting his application to set aside the detention order that was
made against him by Zuker J. of the Ontario Court of Justice, sitting at Toronto (Old City Hall),
on July 25, 2016.
[2]
On July 21, 2016, Zuker J. convicted the applicant of a single count of sexual assault. The
sexual assault for which the applicant was convicted involved sexual intercourse with the

-2complainant, Mandi Gray 1, without her consent; "rape" as the trial judge repeatedly described it
in his reasons.
[3]
Following a detention hearing held on July 25, the trial judge granted the request of trial
Crown counsel, Ms. Lofft, to revoke Mr. Ururyar's bail. That order required the applicant to be
detained in custody until he is sentenced. Although initially scheduled for a date in October
2016, the hearing for Mr. Ururyar's sentencing was moved up following the granting of the postconviction detention order and it is presently scheduled for September 14, 2016. That detention
order is the sole subject of this application.
[4]
This application raises s. 520 of the Criminal Code as one claimed basis for the relief
sought, but more importantly the applicant also asks that this court hear the applicant's
application for bail pending appeal, but prior to sentencing. He seeks directions and a ruling on
the interpretation of section 813(1) of the Criminal Code and Rule 40.05(1) of the Criminal
Proceedings Rules for the Superior Court ofJustice (Ontario), SI/2012-7, pursuant to Rule 40.03
(2). As well, although it is largely a formality in the circumstances and one that I grant with no
objection by the Crown, the applicant seeks an order abridging the time required under the Rules
to file these applications.
[5]
The applicant was charged in February 2015 with the sexual assault offence for which he
has now been convicted. When he was arraigned in the Ontario Court, however, Crown counsel
chose to proceed summarily rather than by way of indictment. Mr. Ururyar was released on a
promise to appear at the time he was charged.
[6]
In the seventeen months that passed from the time he was charged until his trial, the
applicant complied fully and without exception with the bail terms that were established at that
time. In particular he has attended court as required and has not communicated with or been near
the complainant. For most of the time since he was charged until his trial, the applicant resided in
Vancouver and Montreal. He is a PhD student with no prior criminal record.
[7]
The decision of Crown counsel to proceed summarily against the applicant is important
in the context of this matter. It is of importance because regardless of the facts and perceived
egregiousness of the offence, the maximum sentence that may be imposed on Mr. Ururyar is
imprisonment for eighteen months. Given that no minimum sentence for the offence is
stipulated, however, the provisions of the Criminal Code also provide that this offender is
potentially eligible for a conditional sentence of imprisonment to be served in the community.

[8]

I was advised on this application that trial Crown counsel will seek an upper level

custodial sentence of fourteen to eighteen months in the reformatory. To frame the circumstances
of this application at the outset, I emphasize that the applicant's summary conviction in the
Ontario Court of Justice in this case precludes the imposition of a penitentiary sentence, limits
any custodial or non-custodial sentence to a maximum of eighteen months, and thereby leaves
the potential for a conditional sentence of imprisonment to be imposed.
1

Unlike the more usual custom in sexual assault cases where non-publication orders are sought and granted to
protect the identity of the complainant, in this case Ms. Gray specifically chose to waive her rights to such an order,
and thus her identity is not protected by a non-publication ban.

-3(9]
Section 742.1 ofthe Code permits a conditional sentence to be imposed and the decision
of the Supreme Court in R. v. Proulx2 and other authorities that have followed it, provide
authority for a conditional sentence even though our Court of Appeal has made clear that in cases
of egregious sexual assaults, particularly involving children, a conditional sentence will be
appropriate in only the most rare and exceptional of circumstances. Nevertheless, the applicant's
counsel has provided a number of authorities to support his claim that the trial judge can and
should impose a non-custodial conditional sentence in this case. 3 Thus, the fundamental
difference that can be anticipated between the Crown and defence positions at the upcoming
sentencing hearing will focus on whether this is a case where a conditional sentence is
appropriate or whether a custodial sentence is required.

[10] Following the bail revocation hearing held after Mr. Ururyar was convicted, the trial
judge found that there were no concerns with the proposed sureties after hearing their testimony.
He found they could be relied upon to supervise Mr. Ururyar and ensure that he complied with
any terms of release. Neither did the trial judge express any concern about flight risk, the plan of
release, that the applicant would re-offend, or that the applicant would not surrender himself into
custody prior to his sentencing. Nevertheless, the trial judge ordered that the applicant be
detained.
[ 11] The trial judge appears to have based his detention order on (i) his expressed views
during the bail revocation hearing that a sentence of incarceration must necessarily be imposed
given his perception of the egregiousness of the offence, (ii) his strongly stated views of
contempt for the applicant and his conduct, and (iii) his view that the public's perception of the
administration of justice would be called into question were he not to revoke the applicant's bail
having convicted him of rape. He provided insight into his perspective when he admonished
defence counsel for suggesting that a conditional sentence could ever be imposed in such a case,
and when he succinctly and firmly stated that:
"I am not aware of any rape cases in this country ... That a person convicted of
rape or sexual assault of using rape, hasn't gone to jail."

[12] I wish to emphasize that the sentence that the trial judge may choose to impose against
Mr. Ururyar is a matter within his sole discretion. It is not the subject of this hearing. But given
his statements at the revocation hearing and in his reasons for detention, it remains important and
relevant to this hearing that a non-custodial conditional sentence is available and will at least be
required to be considered by the court if counsel submits that it would be fit and appropriate in
all of the circumstances. It is important for this decision that during the bail revocation hearing
and prior to hearing submissions on sentence, the trial judge expressed his view that such a
sentence could never be a fit sentence for rape.

(2000] 1 S.C.R. 61.

SeeR. v. Sampson, [2008] O.J. No. 209 (S.C.J.); R. v. Kang, [2004] OJ. No. 3629 (C.J.); R. v. Tu/k, [2000] O.J.
No. 4315, 48 W.C.B.(2d) 135 (Ont. C.J.); R. v. Pecoskie, [2000] O.T.C. 278, 46 W.C.B.(2d) 144 (S.C.J.), afrd
(2002] O.J. No. 4056, 170 O.A.C. 396; R. v. Cooney (2000), 45 W.C.B.(2d) 612 (Ont. S.C.J.); R. v. Killam (1999),
126 O.A.C. 281, 29 C.R.(5th) 147 (C.A.); R. v. Roberts (2000), 46 W.C.B.(2d) 504 (S.C.J.), affd [2000] O.J. No.
3750 (C.A.).
3

-4[ 13] This is the background against which I am called upon to consider whether the trial
judge's bail revocation order can or should be permitted to stand. This review hearing was to
have been conducted on Friday, July 29, but in light of the matter having been put on my list at
the last minute and the extensive application record filed by the applicant, as well as extensive
books of authorities filed by both the applicant and the Crown, I adjourned the matter to return
on Tuesday, August 2 for argument. The next morning, I advised counsel that this application
would be granted and that Mr. Ururyar would be released on bail pending appeal prior to the
imposition of sentence by the trial judge. I promised that my written reasons would follow as
quickly as I was able to prepare them. These are the reasons for that decision.

Jurisdictional Issues
[ 14] On July 26, 2016, the applicant filed his notice of appeal against conviction, and an
application for bail pending appeal, returnable on July 29, 2016. Both documents were received
and stamped as filed by the Registrar. However, the Registrar and Crown counsel took the
position that the applicant's Notice of Appeal was premature since the applicant had not yet been
sentenced. That position was taken based on the contention that this Court, acting in its capacity
as the Summary Conviction Appeal Court, cannot accept a notice of appeal until after sentence.
Defence counsel observed in the records filed in support of this application that no authority was
or has been provided for that position.
[ 15] It might reasonably have been thought that it should be open to the applicant to bring an
application for judicial interim release from Zuker J.'s detention order under s. 520 of the Code
based on the primary, secondary and tertiary grounds set out in ss. 515( 10)(a), (b) and (c), just as
such a review can be brought pre-trial. However, I find that the language of the Code precludes
that possibility.

[ 16] A pre-trial application for interim judicial release and review of an existing detention
order is brought under s. 520 of the Code. Where an application for detention review is brought
under that provision, s. 515(1 0) spells out the only statutory grounds that are available to support
the continuing pre-trial detention of an accused. It states that:
For the purposes of this section, the detention of an accused in custody is justified
only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in
order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public,
including any victim of or witness to the offence, or any person under the age of
18 years, having regard to all the circumstances including any substantial
likelihood that the accused will, if released from custody, commit a criminal
offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of
justice, having regard to all the circumstances, including: (i) the apparent strength
of the prosecution's case; (ii) the gravity of the offence; (iii) the circumstances

- 5surrounding the commission of the offence, including whether a firearm was used;
and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy
term of imprisonment or, in the case of an offence that involves, or whose subjectmatter is a firearm, a minimum punishment of imprisonment for a term of three
years or more.
[17] In R. v. St-Cloutf, Wagner J. of the Supreme Court was clear and forceful in his
description of the judge's powers at a detention review hearing brought under s. 520 and 521 of
the Code:
121 It will be appropriate to intervene ifthejustice has erred in law. It will also
be appropriate for the reviewing judge to exercise this power if the impugned
decision was clearly inappropriate, that is, if the justice who rendered it gave
excessive weight to one relevant factor or insufficient weight to another. The
reviewing judge therefore does not have the power to interfere with the initial
decision simply because he or she would have weighed the relevant factors
differently. I reiterate that the relevant factors are not limited to the ones
expressly specified in s. 515(10)(c) Cr.C. Finally, where new evidence is
submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C.,
the reviewing judge may vary the initial decision ifthat evidence shows a material
and relevant change in the circumstances of the case. (my emphasis)

[ 18] That is the framework that governs in determining whether an accused is entitled to bail
or must be detained before trial, but it is inapplicable in circumstances like these where the trial
judge made the detention order after the accused has been convicted but before sentence is
imposed.
[ 19] In this case, after he was found guilty of one count of sexual assault following a summary
conviction trial, the Crown applied to the trial judge for revocation of the applicant's bail.
Following a bail revocation hearing, the trial judge ordered that the applicant be detained in
custody to await sentencing under s. 523(1)(b)(ii) of the Code.
[20] The procedure that applies to bail reviews under s. 520 is unavailable to the applicant in
this case because the order of detention made by the trial judge at the conclusion of the
revocation hearing is not reviewable under that section. Detention orders, such as this one, made
under s. 523(1)(b)(ii) of the Code, are not included amongst those enumerated under s. 520 and
which are made before the trial of the charge. The only s. 523 order that may be reviewed under
the s. 520 procedure is a detention order made under s. 523(2)(b) to detain the accused after the
completion of the preliminary inquiry in respect of a charge for which the accused has yet to
stand trial.
[21] This makes sense, in my view, because such review proceedings are conducted before
trial. However, this review is being sought after trial and conviction where it is the trial judge
who has revoked bail pending sentence. Despite some initial skirmishing over the point, both
Crown and defence counsel on this application ultimately agreed on that limitation to the scope
4

[2015] S.C.J. No. 27, 2015 SCC 27, at para. 121.

-6of the s. 520 bail review power. Thus, if this bail review is to proceed, raised post-conviction but
pending sentence, it can only be under the rules that apply to bail pending appeal.
[22] In contrast to the tests that apply under the s. 520 regime, the tests that must be applied
for bail to be granted pending the determination of an appeal are set out in s. 679 of the Code.
They require (i) that the appeal or application for leave to appeal is not frivolous; (ii) that the
applicant will surrender himself into custody in accordance with the terms of the
and (iii)
that his detention is not necessary in the public interest.
[23] The applicant contends that this application for bail pending appeal may properly be
brought at this time, even though sentence has yet to be imposed, on the basis that his appeal
against conviction has been properly commenced. That position is based on counsel's
interpretation ofs. 813 ofthe Code and on the wording of Rule 40.05(1).
[24]

Section 813(a) provides that except where otherwise provided by law,

(a) the defendant in proceedings under this Part [Summary Convictions] may
appeal to the court
(i) from a conviction or order made against him;
(ii) against a sentence passed on him; or
(iii) against a verdict of unfit to stand trial or not criminally responsible on
account of mental disorder;

[25]

Rule 40.05(1) stipulates that:

The appellant shall serve and file the notice of appeal,
(a) where the appeal is from a conviction or sentence or both, within 30 days after
the day on which the sentence was imposed; or,
(b) in any other case, within 30 days after the date on which the adjudication
under appeal was made. (my emphasis)

[26] The applicant takes the position in this court, consistent with the practice at the Ontario
Court of Appeal, that this rule simply sets out the last day on which the notice of appeal can be
filed, that is, that it establishes a deadline date. It is contended that the same position should
apply here since the Court of Appeal's rules in the Criminal Appeal Rules, SI/93-169 set out in
Rule 4, subsection (2) are nearly identical to the rules of this court. It reads as follows:
Where the appeal is from conviction, sentence, or both, the notice of appeal shall
be served within 30 days after the day of the sentence.

-7[27] Counsel for the applicant contends that there is good appellate authority in this province
that not only permits an appeal from conviction to be commenced before sentence, but that also
allows for a
application for bail pending appeal: seeR. v. McNei/5, R. v. Smale6 , and
R. v. Morris.
[28] McNeil addresses the very question of whether appeals against conviction may be
commenced before and separate from appeals against conviction and sentence. The decision of
Dubin J.A., later C.J.O., sitting with Martin and Blair JJ.A., following the decision of the B.C.
Court of Appeal in R. v. Benson8, explains that conviction appeals and sentence appeals are
separate proceedings and that the applicant does not have to wait until the accused is sentenced
in order to file his appeal against conviction.
[29] In Smale, the accused was convicted of manslaughter on October 5, 1979. He was to be
sentenced on November 16. The trial judge remanded him into custody pending his sentencing,
but on October 25 he appealed his conviction and on November 1 applied to the Chambers Judge
for his release pending appeal. The Chambers Judge dismissed the application when advised by
counsel that there appeared to be conflicting appellate jurisprudence respecting his jurisdiction to
grant an order of interim release after conviction but before sentencing. By direction of the Chief
Justice, this caused the matter to come up for review on November 14, only two days before the
sentencing was to be held, before MacKinnon A.C.J.O., Arnup and Martin JJ.A.

[30] The Crown argued, on the authority of Rex v. Tille/, that the Court of Appeal did not
have jurisdiction to consider an application for bail pending an appeal against conviction prior to
the imposition of sentence, but the appeal justices in Smale relegated that decision to its own
facts and preferred the decision of Brooke J.A. in R. v. Bencardino and De Carlo. 10 Ultimately,
the court in Smale declined to exercise the jurisdiction to make the interim release order sought,
because by the time the matter came before them, the sentencing hearing was only two days
away. However, at paras. 4-5, MacKinnon A.C.J.O expressed the view of the court that it had the
necessary jurisdiction:
4 In our view s. 608(l)(a) is perfectly clear in its terms when it states that a
judge of the Court of Appeal may release an appellant from custody pending
determination of his appeal against conviction. The provisions of our provincial
rules respecting criminal proceedings cannot and do not alter or limit that power.
As Mr. Justice Brooke pointed out in R. v. Bencardino and De Carlo, supra:
...the whole question of guilt or innocence has been placed in issue by the
appeal and the jurisdiction of this court invoked with all of its powers as
provided by the Criminal Code over the liberty of the applicants.

R. v. McNeil, [1979] O.J. No. 1794 (C.A.).

(1979), 51 C.C.C. (2d) 126 (Ont. C.A.).
7
(1985), 21 C.C.C. (3d) 242 (Ont. C.A.).
8
40 c.c.c. {2d) 271.
9
[1951] O.W.N. 871.
6

10

(1973), 11 C.C.C. (2d) 549 (Ont. C.A.).

-85 We are all of the opinion that a judge of the Court of Appeal does have the
jurisdiction to grant an order of interim release on an appeal from conviction
being taken and before a sentence has been imposed. That jurisdiction should
only, it appears to us, be exercised in unusual and limited circumstances but it
does exist. It should be noted that Mr. Justice Brooke, although holding that he
did have jurisdiction to grant the order requested, refused to grant it, feeling
compelled in the circumstances ofthat case to await the decision ofthe trial judge
as to sentence. (my emphasis)
[31] In Morris, Morden J.A. confirmed this position although he acknowledged that the
jurisdiction is not general but should be reserved for and exercised only in the rare cases that call
for its application.

[32] The applicant's position before me is that the Rules of the Superior Court and the Court
of Appeal are substantively identical, as they appear to be, and that the Court of Appeal has
found that there is jurisdiction to file a notice of appeal before sentence is imposed. Further, a
decision of this court following conviction to revoke bail pending sentence on a matter that
proceeded in this court on indictment can be reviewed before sentence is imposed. If that is so,
even if the jurisdiction is to be exercised only in unusual and limited cases, I find that an
applicant whose bail has been revoked in a summary conviction proceeding before the Ontario
Court of Justice does not have to wait until after sentence is imposed to file a notice of appeal in
this court, in its capacity as the Summary Conviction Appeal Court, and only then be able to
bring an application for bail pending appeal.
[33]

Crown counsel sought to distinguish between the jurisdiction of this court when it sits as
a Summary Conviction Appeal Court, and when it sits generally in criminal matters, including on
bail reviews. It was suggested to me that this court cannot have the same jurisdiction as the Court
of Appeal to review a detention order pending appeal to this court as the Summary Conviction
Appeal Court, because this court is limited by binding technical language in the Rules, as
contrasted to a suggested "inherent" jurisdiction of the Court of Appeal.
[34] Neither counsel were able to find an Ontario or other decision across Canada where a
superior court of record, sitting in appeal of a summary conviction of an accused by a judge of a
statutory provincial court, has been asked to grant bail pending appeal but before sentence in the
court below. However, the problem with Crown counsel's position on jurisdiction is that the only
courts in this country that have inherent jurisdiction are the superior courts of record established
by s. 96 of the Constitution Act, 1982, as amended. Nevertheless, just as the Court of Appeal is a
statutory court whose jurisdiction is established and defined by statutory rules, so are the
virtually identical rules governing Summary Conviction Appeals to this court, which are also
statutory and equally limiting in nature. In that sense, the rules in this court can be seen to be
parallel to the statutory rules governing the operation of the Court of Appeal.
[35] The Summary Conviction Appeal Rules in this court mirror those that apply to the Court
of Appeal and establish the precise framework within which summary conviction appeal matters
are to be determined. This includes the question of bail pending appeal, including postconviction bail review applications pending appeal. As such, the appellate jurisprudence of this
province on the subject, and to a lesser extent of other provinces, is relevant and determinative of

-9not only whether this court has jurisdiction to entertain this bail review pending appeal, but also
under what circumstances.
[36] I make no finding on the question whether this court has the ability to resort to its general
inherent jurisdiction to provide relief against detention in these circumstances. Even if it does
not, the parallel and substantially identical provisions of the rules operative in the Court of
Appeal and those operative in this court when it sits in appeal of summary conviction matters,
makes plain the legislative intent that both courts would operate in their appellate capacities on a
similar foundation and within the same framework.
[37] Finally, I note that while Crown counsel on this application advanced several appeal
cases that focus on the meaning of "conviction" and suggest that there is no conviction to be
appealed from until sentence is imposedu, he also fairly included in his materials the Smale,
Morris and McNeil decisions relied upon by counsel for the applicant and which provide the
better authority, in my view, for the opposite conclusion. Against that background, and taking
account of these authorities, I conclude that I do have jurisdiction to conduct a bail review
pending appeal from conviction even though the applicant has not yet been sentenced.

Principles Governing Bail Pending Appeal

[38] Section 816 of the Code applies to Summary Conviction Appeals. It permits the release
of an applicant who was a defendant at trial conducted by way of summary conviction pending
the determination of an appeal under section 813. The supposition under the provision, however,
is that it applies to a defendant who is in custody at the conclusion of the trial. The general rule is
that in such a case, the defendant shall remain in custody pending the determination of the
appeal, but may be released by the appeal court under subsection 816( 1) on giving an
undertaking, or entering into a recognizance in accordance with subsections 816(1)(a)-(c). The
provision contains no express language governing burden of proof, but the language requiring
the defendant to give the undertaking or recognizance would appear to suggest that the onus to
establish grounds for release rests on the defendant. 12 However, neither does the provision state
criteria that are to be applied in determining whether grounds for release are established.
[39] Given my conclusion that this court has jurisdiction to entertain this application for
judicial interim release pending appeal but prior to sentence, in the absence of stipulated criteria
in section 816 to apply in determining whether release ought to be granted, the parallel statutory
frameworks applicable to the Court of Appeal and this court sitting as a Summary Conviction
Appeal Court, provides strong direction that principles governing release pending the

determination of an appeal at the Court of Appeal ought to apply. Those tests are set out in
section 679 of the Code.
[40] Under s. 679(3), where an applicant has appealed against a conviction under s. 679(l)(a),
the parallel circumstance to this case, a judge of the Court of Appeal may order that the appellant
11

R. v. Mcinnis, [1973] OJ. No. 2124 (C.A.), R. v. Hofer, [1977] M.J. No. 309 (Man. County Ct.)., R. v. Benson,
(1978] B.C.J. No. 1104 (B.C.C.A.), R. v. Payne, [2002] M.J. No. 485 (Man. C.A.), R. v. C. V.S., [2002] N.B. J. No.
429 (N.B.C.A.) and R. v. Mcintosh, [2010] N.S.J. No. 448 (N.S.C.A.).
12

See annotations to s. 816 in Tremeears Criminal Code.

- 10be released pending the determination of his appeal if the appellant establishes (i) that the appeal
or application for leave to appeal is not frivolous, (ii) that he will surrender himself into custody
in accordance with the terms of the order, and (iii) that his detention is not necessary in the
public interest.
Only two days before this application was argued, Gillese J.A. of the Court of Appeal
[41]
succinctly reviewed the criteria for release pending appeal in R. v. Forcillo 13 , a case that, like this
case, has attracted much public and media interest, albeit for different reasons. In that case, a
Toronto police officer who had been on bail pending trial and who continued to be on bail
following conviction for attempted murder in the Sammy Yatim case, was sentenced to serve six
years in the penitentiary. Gillese J.A. released him on bail following sentence and pending his
appeal.
[42] As in that case, so too in this case I find that there are no issues on the first two criteria
and that the application before me must turn on whether the applicant's detention is necessary
"in the public interest", as Gillese J.A. found in her reasons in that case.
Dealing briefly with the first criteria, R. v. Mannaseri 14 establishes that an appeal is not
frivolous if the proposed grounds of appeal raise arguable issues. The threshold is low. Watt J.A.
observed that the applicant does not need to 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."

[43]

[44]
Crown counsel on this application concedes that the appeal brought by this applicant is
not frivolous. However, as discussed further below, I agree with Crown counsel that a higher
threshold should apply when considering the merits of the appeal, given that an application for
bail pending agpeal before sentence should be granted only rarely and in unusual or limited
circumstances. 5
[45]
On the second test, Crown counsel concedes that the applicant's strict compliance with
his pre-trial terms of recognizance shows that there is no real risk that the applicant will not
surrender into custody in accordance with the terms of any order that may be made.
[46]
Thus, as in Forcillo, the focal question that arises on this application is whether the
applicant's detention is necessary in the public interest. Gillese J.A. notes that there are two
components to the "public interest" criteria: public safety and public confidence in the
administration of justice. At paras. 10-14 ofher endorsement, she states as follows:
[10] Public safety is concerned with the risk that the Appellant, if released,
would commit further offences by posing a risk to others or to the administration
of justice: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32
(Ont. C.A.). There is no suggestion that the Appellant would re-offend if released
and the Crown concedes this. He does not pose a risk to the public safety.
13

2016 ONCA 606.

2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38.
15
R v. Smale and R. v. Morris, above
14

- 11 [ 11] Determining whether detention is required based on public confidence in

the administration of justice requires the court to balance the conflicting
principles of reviewability and enforceability. That is, the public interest criterion
requires a judicial assessment of the need to review the conviction (reviewability)
and the need to respect the general rule of immediate enforceability of judgments
(enforceability): Farinacci, at para. 43.
[12] In performing this assessment, the court must consider the seriousness of
the offence for which the Appellant has been convicted and assess the merits of
the appeal.
[13] The Appellant has been convicted of a very serious offence: attempted
murder. He faces the prospect of a lengthy period of incarceration: six years.
[14] It must be remembered that this court's role in assessing the merits is not
to decide the appeal. My role is limited to assessing whether the merits of appeal
are sufficiently strong to shift the balance in favour of release. On my assessment,
the merits of the appeal shift the balance in favour of reviewability. Public
confidence in the administration of justice requires that judgments be reviewed
and that errors, if any, be corrected: see Farinacci, at para. 43.

[47] In this case, the applicant has not been convicted of attempted murder, but he has been
convicted of a very serious offence: non-consensual sexual intercourse with the complainant. He
does not face a period of incarceration of six years as in Forcillo, but he may be sentenced to
imprisonment for eighteen months. In this case, however, unlike in Forcil/o, the applicant is also
statutorily eligible to be considered for a conditional sentence of incarceration to be served in the
community. The first component of public interest is not in issue since there has been no
suggestion that public safety would be put at risk if this applicant were to be released pending
sentence. It is the second component, the public's confidence in the administration of justice, that
is front and centre here.
[48]
Before turning to consider the merits of the appeal, in determining whether those merits
engage a public interest for the applicant to be released, I found the decision of this court in R. v.
Green 16 to be helpful and instructive, given that its focus is on whether the public interest
permits the release of an applicant or requires his continuing detention pending sentence. That

case is also akin to this one because it concerned an order under s. 523 of the Code, albeit
paragraph (2 )(a) rather than subsection ( 1)(b)(ii) as in this case.
[49] That decision is useful because it reminds me as the decision maker that the liberty of a
subject is a central value of the Canadian legal system, as reflected in s. 11 (e) of the Canadian
Charter of Rights and Freedoms. Persons charged with offences have the right not to be denied
reasonable bail without just cause. Pre-trial detention is the exception, not the norm in our

16

[2006] OJ. No. 3240 (S.C.J.).

- 12system of criminal justice. 17 However, as Farinacci shows, the right to reasonable bail under s.
11 (e) of the Charter also applies to a person who has been convicted.
[50] In considering whether the public interest permits release or requires the applicant's
detention, as Ducharme J. notes at paras. 13 and 14 of Green, it is also important to keep in mind
that:
... the revocation of bail can have a significantly detrimental impact on the
offender's ability to prepare for sentencing. If the offender is in custody, contact
with his or her counsel will be more onerous; it will complicate the gathering of
materials, such as letters of reference and the like, which are routinely relied upon
by the courts at the time of sentencing; and it will preclude the offender from
getting his or her affairs in order before being incarcerated. Thus, the trial judge
hearing an application for revocation of bail should first consider, where the
Crown has legitimate concerns, whether these could be met by varying the terms
of the release. Of course, any doubt about whether or not the offender will receive
a custodial sentence would be another important factor militating against the
revocation of bail.
Finally, neither public safety nor maintaining public confidence in the
administration of justice requires that bail be routinely revoked following
conviction. Parliament has sought to ensure public safety in two ways: first, by
providing that, for the most serious offences, those enumerated in s. 469, bail will
automatically be revoked following conviction; and second, by providing for the
revocation of bail under s. 524 where the accused has not complied with the terms
of the judicial interim release order. The important question of public confidence
in the administration of justice must be assessed from the perspective of a public
that is both informed about our system of bail and the facts of the particular case.
This includes an appreciation of the fact that the offender, although convicted, has
already been granted judicial interim release and has complied with the terms of
that release, usually for a considerable period of time. It is difficult to understand
how public confidence in the administration ofjustice will be undermined by the
continued release of an offender who has demonstrated that he or she is not a
threat to public safety and does not pose a risk of/light nor interference with the
administration of justice. This is particularly true given that the time between
conviction and sentencing rarely exceeds two months. (my emphasis)

[51] In this case, it is argued that the three highlighted portions of these paragraphs are at play.
Again I note there are no public safety or risk of flight concerns engaged here, that the applicant
has complied with the prior terms of his release without incident for seventeen months, and that
the time from conviction on July 21, 2016 to the presently scheduled sentence date of September
14, 2016 is just less than two months.

17

R. v. Morales (1992), 77 C.C.C. (3d) 91 (S.C.C.) at I 01 per Lamer C.J.C.

- 13Analysis and Application of the Principles

[52] I begin this analysis by observing that the focus ofthe trial judge following the detention
hearing was plainly on "public confidence in the administration of justice", looked at in the
context of a bail review pending appeal under s. 679 of the Code. This is clear from the first
paragraph of his reasons. He stated:
With respect to the submissions, as to whether Mr. Ururyar should be detained or
not, several questions have arisen as to whether any order that this court makes,
short of detaining Mr. Ururyar, is sufficient, and I would say sufficient in terms of
the administration of justice.
The question for the trial judge was whether the applicant's detention was necessary to maintain
confidence in the administration of justice having regard to all the circumstances.
[53] The trial judge made his view on that question known, plainly and in strong words. He
concluded his brief decision by simply stating that the detention of the accused was required. In
reaching that conclusion he focused on the need for any sentence imposed on Mr. Ururyar to
reflect the key sentencing principles of "deterrence, rehabilitation, retribution and denunciation."
In his strong verbal exchanges with defence counsel on the hearing, he stated that he was not
aware of any rape cases in this country where the person convicted of rape has not gone to jail.
As the trial judge stated in his reasons, "the court found Mr. Ururyar guilty of rape, I don't know
how else to spell it out."
[54]

The trial judge continued:

The problem, of course, with this definition is that rape is about power and
control. Mr. Ururyar, with his PhD on the horizon, was not worrying about
foreseeability. If he was, we wouldn't be here today. It was about power. It was
about control. I am in control.
If those who commit rape appreciated for one moment the psychological or
emotional harm that they cause on a permanent basis, PhD or not, then perhaps
we would have less rapes.

[55] The trial judge found that in all of the circumstances it was appropriate to detain the
applicant in custody pending sentence. I note that in reaching that conclusion he did not appear
to directly or clearly address the issue of public confidence in the administration of justice and
whether a reasonable member of the public fully informed of the circumstances would conclude
that the maintenance of confidence in the judicial system required Mr. Ururyar to be detained
pending sentence. Arguably, while not plainly evident, it may be inferred from his statement that
"sentencing is not only with respect to protecting individuals, protecting institutions but the
values, the values of Canadian society," that he had that test in mind, but regrettably it is clouded
by his overwhelming sense, directly stated, that the needs of victims of sexual assaults was what
required that the applicant be required to step into custody.

- 14[56] As it is conceded that the appeal is not frivolous and that there is no concern about public
safety or flight risk, I tum fmally to the grounds of appeal. In doing so I have reminded myself
that my role is limited to assessing whether the merits of appeal are sufficiently strong to shift
the balance away from enforcement of the trial judge's post-conviction detention order in favour
of release. I have also reminded myself, as Trotter J. observes in his seminal text, the Law of
Bail in Canada, at s.l0.2(c), that the exercise of discretion to grant bail pending appeal but
before sentence where the trial judge has revoked a prior release ought to be exercised in
"unusual or limited circumstances" or only "rarely." The learned author continues:

It is not clear in what circumstances bail pending appeal prior to the imposition of
sentence will be granted. Perhaps the applicant must establish overwhelming
hardship in being detained pending the imposition of sentence, or it is clear that
the appeal will succeed. The prospect of a lengthy delay between conviction and
sentencing is also a relevant consideration.
[57]
The focus here is on the likelihood of success on appeal. Not only are the grounds not
frivolous, but Crown counsel conceded on the application that they may be found to have merit.
Nevertheless, he argued there was no basis for this court to interfere with the decision of the trial
judge and to order the applicant to be released, since in his submission it is not clear that the
appeal would clearly succeed, as Trotter J. suggests is the test that ought to be met. Crown
counsel also acknowledged, however, that the list of grounds for granting the relief sought by the
applicant here as described in Justice Trotter's text is not closed. There may well be other
grounds that would justify release.
[58]

18

The grounds of appeal are the following:

(i)

There was a reasonable apprehension of bias on the part of the trial judge that
resulted in a failure to critically evaluate the evidence and the credibility of the
complainant;

(ii)

The trial judge applied different standards of scrutiny to the evidence of the
complainant and that of the appellant;

(iii)

The trial judge failed to provide any critical analysis into the inconsistencies in
the complainant's evidence;

(iv)

The verdict is unreasonable in the sense that it is based on illogical and/or

irrational reasoning processes on the part of the trial judge; 18

(v)

The trial judge materially misapprehended the evidence concerning text messages
sent from the complainant to the appellant and failed to consider the impact of this
evidence on her credibility;

SeeR. v. Beaudry, [2007] 1 S.C.R. 190; R. v. Sinclair, [20 11) S.C.J. No. 40).

- 15(vi)

The trial judge materially misapprehended the evidence of the appellant's

disinterest in the complainant's public displays of affection and overemphasized
the impact of this evidence in rejecting the appellant's testimony that the sexual
contact that occurred later in the evening was consensual;

(vii)

The trial judge erred in his assessment of whether the Crown had proven the
sexual contact was non-consensual; and

(viii) The trial judge erred in relying on academic literature and secondary sources that
were the product of his own research and in not providing the parties with an
opportunity to address these issues in submissions.

[59] The foundation for the applicant's grounds of appeal are set out in the 31-page Affidavit
of Merits sworn by Ms. Bristow who was trial counsel for the applicant. The claimed merit of
each of these grounds is addressed in detail in that document.
[60]

Looking first at grounds (ii), (iii), (iv), (v), (vi) and (vii), all involve different avenues of
attack against the factual findings made by the trial judge and his assessment ofthe evidence.

[61]

In considering the evidence to determine whether Crown counsel had proven the sexual
assault beyond a reasonable doubt, the trial judge was required to apply the principles in the
controlling decision of the Supreme Court of Canada in R. v. W. (D.). 19 That case sets out the tests
that must be applied in a case like this where a complainant accuses a person of non-consensual
sexual assault and that accused person chooses to testify. In those circumstances, a trial judge
must first consider the evidence of the accused and determine whether he believes that
testimony. If he does, then the accused must be acquitted. Even if the trial judge does not believe
the evidence of the accused, if it nevertheless leaves him in a state of reasonable doubt, he must
acquit. Finally, even if he does not believe the testimony of the accused and is not left in a state
of reasonable doubt by it, he can convict the accused of the charge only if he is satisfied, on the
whole of the other evidence that he does accept, that the Crown has proven all of the elements of
the offence beyond a reasonable doubt.

[62] One of the applicant's appeal claims is that it is difficult to decipher from the trial judge's
reasons whether he properly applied the R. v. W.(D.) framework in assessing the witnesses'
credibility. That deficiency is claimed to require a new trial. There is also a claim that the trial
judge applied different standards of scrutiny to the evidence of the defence and the evidence of
the Crown, relating his credibility assessment of the accused's evidence in paragraphs 438-484
of his reasons, while limiting his assessment of the credibility and reliability of the complainant's
evidence to two paragraphs: part of paragraph 483 and paragraph 485.
The claim of differing levels of scrutiny is a ground of appeal that is recognized20 , but as
Laskin J.A. observed in R. v. Aird:

[63]

19
20

[1991] 1 S.C.R. 742.

R. v. Gravesande, 2015 ONCA 774 at paras. 18-20.

- 16The "different standards of scrutiny" argument is a difficult argument to succeed

on in an appellate court. It is difficult for two related reasons: credibility findings
are the province of the trial judge and attract a very high degree of deference on
appeal; and appellate courts invariably view this argument with skepticism, seeing
it as a veiled invitation to reassess the trial judge's credibility determinations. 21
[64] For an appellant to successfully advance this ground of appeal, he must identifY
something clear from the trial judge's reasons or the record indicating that a different standard of
scrutiny was applied, and it must be something sufficiently significant to displace the deference
that is due to the trial judge's credibility assessments.
[65] Here it is claimed the trial judge materially misapprehended the evidence, failed to
consider the evidential significance of the text message evidence relative to the complainant's
credibility, failed to consider the significance of the applicant's testimony about an aversion to
public displays of affection and the alleged significance of that evidence in the context of the
evidence as a whole, and failed to properly assess the issue of consent.
[66] In my view, each of these grounds may be arguable. They may have merit. But the nature
of these grounds all relate to the trial judge's factual findings and assessments of the credibility
and reliability of the evidence of the complainant and the evidence of the accused. As such, in
my view Laskin J .A.'s practical observation must limit the ability of these grounds to play out on
the question here of whether there is a strong likelihood of the appeal succeeding on those
grounds.
[67] One or more of those claims may attract unfavourable appellate scrutiny when the appeal
is ultimately heard, but in my view, those are not the grounds, even if potentially successful, that
provide a rationale to override the trial judge's post-conviction, pre-sentence detention order.
Further, it is not my province on this application to determine the issues in appeal but merely to
assess whether the merits of the appeal shift the balance in favour of reviewability. I would not
interfere with or presume to conclude that the trial judge's findings of fact and his assessment of
the evidence of the parties can support this application, taking account of the deference that is
due to the trial judge's factual determinations pending appeal. I find that this ground of appeal is
not clearly due to succeed and thus is not a ground to vacate the trial judge's detention order of
the applicant.
[68] I then turn to ground (viii): that the trial judge erred in relying on academic literature and
secondary sources that were the product of his own research and in not providing the parties with
an opportunity to address these issues in submissions. This is an appeal ground of an entirely
different character.
[69] Trial judges are entitled to conduct their own research to ensure they apply the law
correctly, but the confines of that ability is markedly narrowed when it comes to adjudicative
issues and factual fmdings. Absent evidence on an issue, a trial judge cannot assume the role of
an advocate or investigator, nor can he or she raise their own issues without proper notice to the
parties.
21

(2013) O.A.C. 183 at para 39.

- 17[70] Justice Doherty, writing unanimously for the Ontario Court of Appeal in R. v. Hamilton
and Mason 22 , dealt directly with this issue in the context of a sentencing hearing at paras. 62-72.
Because of the scope of his analysis and its equal application to a trial, I have included those
paragraphs in their entirety:
(b) Did the trial judge go too far?
I will first address the respondents' argument that this court should not reach the
merits of this ground of appeal. The respondents contend that the Crown's
allegation comes down to one of a reasonable apprehension of bias flowing from
the trial judge's conduct of the proceedings. I think this is a fair description of at
least part of the submissions made by the Crown in support of this ground of
appeal...
The Crown's argument does not however rest entirely on the reasonable
apprehension of bias claim. Crown counsel contends that the trial judge, in
overstepping his role, fundamentally altered the nature of the proceedings.
Counsel contends that the trial judge turned the proceedings from one designed to
determine a fit sentence for individual offenders, to one designed to enquire into a
variety of societal problems which the trial judge, through his experience, had
come to associate with the sentencing of black women who courier drugs into
Canada from Jamaica. Crown counsel contends that this fundamental alteration
of the essential purpose ofthe proceeding in and of itself invalidates the result.
I would not accept the Crown's bias argument, however I think there is merit to
the second component of the Crown's submission. The nature of the proceedings
was fundamentally changed and this change contributed to the errors in principle
reflected in the sentences imposed.
Having read and reread the transcripts, I must conclude that the trial judge does
appear to have assumed the combined role of advocate, witness and judge. No
doubt, the trial judge's extensive experience in sentencing cocaine couriers had
left him with genuine and legitimate concerns about the effectiveness and fairness
of sentencing practices as applied to single poor black women who couriered
cocaine into Canada for relatively little gain. The trial judge unilaterally decided
to use these proceedings to raise, explore and address various issues which he
believed negatively impacted on the effectiveness and fairness of current
sentencing practices as they related to some cocaine importers. Through his
personal experience and personal research, the trial judge became the prime
source of information in respect of those issues. The trial judge also became the
driving force pursuing those issues during the proceedings.

22

(2004), 186 C.C.C. (3d) 129 (Ont. C.A.).

- 18No one suggests that a trial judge is obliged to remain passive during the
sentencing phase of the criminal process. Trial judges can, and sometimes must,
assume an active role in the course of a sentencing proceeding ...
Recognition that a trial judge can go beyond the issues and evidence produced by
the parties on sentencing where necessary to ensure the imposition of a fit
sentence does not mean that the trial judge's power is without limits or that it will
be routinely exercised. In considering both the limits of the power and the limits
of the exercise of the power, it is wise to bear in mind that the criminal process,
including the sentencing phase, is basically adversarial. Usually, the parties are
the active participants in the process and the judge serves as a neutral, passive
arbiter. Generally speaking, it is left to the parties to choose the issues, stake out
their positions and decide what evidence to present in support of those positions.
The tria/judge's role is to listen, clarifY where necessary and, ultimately, evaluate
the merits ofthe competing cases presented by the parties.
The trial judge's role as the arbiter of the respective merits of competing positions
developed and put before the trial judge by the parties best ensures judicial
impartiality and the appearance of judicial impartiality. Human nature is such that
it is always easier to objectively assess the merits of someone else's argument.
The relatively passive role assigned to the trial judge also recognizes that judges,
by virtue of their very neutrality, are not in a position to make informed decisions
as to which issues should be raised, or the evidence that should be led. Judicial
intrusion into counsel's role can cause unwarranted delay and bring unnecessary
prolixity to the proceedings.
.. . Where an issue may or may not be germane to the determination of the
appropriate sentence, the trial judge should not irifect that issue into the
proceedings without first determining from counsel their positions as to the
relevance of that issue. If counsel takes the position that the issue is relevant, then
it should be left to counsel to produce whatever evidence or material he or she
deems appropriate, although the trial judge may certainly make counsel aware of
materials known to the trial judge which are germane to the issue. If counsel
takes the position that the issue raised by the trial judge is not relevant on
sentencing, it will be a rare case where the trial judge will pursue that issue.

is also important that the trial judge limit the scope of his or her intervention
into the role traditionally left to counsel. The trial judge should frame any issue
that he or she introduces as precisely as possible and relate it to the case before
the court ...

It

The manner in which the proceedings were conducted created at least four
problems. First, by assuming the multi-faceted role of advocate, witness and
judge, the trial judge put the appearance of impartiality at risk, if not actually
compromising that appearance. For example, the trial judge introduced the issues
of race and gender bias into the proceedings, and then, through the material he

- 19-

produced and the questions he addressed to Crown counsel, the trial judge
appeared to drive the inquiry into those matters towards certain results. Those
results are reflected in his reasons. Looking at the entirety of the proceedings,
there is a risk that a reasonable observer could conclude that the trial judge's
findings as to the significance of race and gender bias in fixing the appropriate
sentences had been made before he directed an inquiry into those issues. At the
very least, the conduct of the proceedings produced a dynamic in which the trial
judge became the Crown's adversary on the issues introduced by the trial judge.
Although the appearance of impartiality was put at risk by the conduct of these
proceedings, the trial judge did take steps to try and preserve the appearance of
fairness. He gave counsel clear indications of his concerns and any tentative
opinions he had formed. He also provided the material to counsel to which he
planned to refer in considering the issues he had raised. This procedure was
much fairer to the parties and much more likely to produce an accurate result
than had the trial judge simply referred to the material without giving counsel any
notice... Much of the material produced by the trial judge was not suggestive of
any particular answer to the questions raised by the trial judge in the course of the
proceedings. The scrupulous fairness with which the trial judge conducted the
proceedings went some way towards overcoming the potentially adverse effects
of the extraordinary role he assumed in the conduct of the proceedings ... (my
23
emphasis, citations omitted).
[71] Similarly in Cronk v. Canadian General Insurance Co. 24, Justice Weiler (dissenting in
part) noted the following:
It is not an easy task for a judge to know when it is possible to take judicial notice of
studies which are not before the court without having to hear submissions from counsel.
The answer depends on the use to be made of the research and the type of case before the
court. In "Re-examining the Doctrine of Judicial Notice in the Family Law Context"
(1994), 26 Ottawa L. Rev. 551, Justice L'Heureux-Dube examines the role of social
science research with respect to issues before the courts and she discusses the doctrine of
judicial notice in Canada in general terms before dealing with its potential application in
the area of family law. In her article, L'Heureux-Dube J. adopts a structure and
definitions, which I will also employ here, that divides social science research into three
categories: (1) social authority; (2) social framework; and (3) social facts.
Where social science relates to the lawmaking process in the same way as judicial
precedent then it may be treated in the same manner as courts treat legal precedents.
Such materials are useful background when dealing with policy or constitutional
questions. The second category, social framework, refers to research that is used to
construct a frame of reference or background context for deciding a case. Used as a social
framework, the generality of social research causes it to bear greater resemblance to
social authority than it does to social facts. When social science studies are used as social
23
24

Also seeR. v. V.H.M, [2004) N.B.J. No. 364 (C.A.) at para. 24.
[1995] O.J. No. 2751 (C.A.).

-20authority or as a social framework by a trial judge or tribunal without giving the parties
an opportunity to comment on the studies it is usually considered to be an error but not
one which will itself result in reversal... On the other hand, where social science

research is used to resolve a dispute that is specific to the proceedings, the social science
research takes on a character akin to the judge making a finding offact based on it. If
used in this manner, it appears to be necessary for trial courts to ensure that an
opportunity is provided to the parties to properly introduce the evidence and to have it
tested through cross- examination. (my emphasis, citations omitted).
[72] It appears to me that the trial judge's approach in this case fell into the same errors
described in R. v. Hamilton and Mason and Cronk v. Canadian General Insurance Co. There is
at least a strong appearance that he assumed the role of advocate, witness and judge. Whether he
turned the applicant's sexual assault trial into a rebuke of how, in his view, the trial courts treat
complainants in sexual assault prosecutions and so called "rape myths" is a matter to be decided
on appeal, not by me. However, he plainly relied on academic commentary as a social fact,
which he appears to have used to resolve issues before the court, without receiving any input
from the parties. Unlike in Hamilton and Mason, however, the trial judge here did not provide
any notice to counsel about the materials he intended to rely on, and no evidence was called on
any of those materials.
That causes the concern to be even more serious than was present in Hamilton and
Mason. The concern is that without notice to counsel and without inviting submissions on that
material, the trial judge may have, as it is argued, formed his opinions of the issues, and the
complainant's credibility, at least in part on social science articles and research of his own
choosing. Moreover, to the extent that those materials were not tested before the Court and that
the sources included publications by the U.S. State Department and District Attorney's Office,
the introduction of those materials in his reasons for judgment without input does raise questions
of partiality.
[73]

[74] I agree with counsel for the applicant, on the authority of Hamilton and Mason and
Cronk, that there are strong grounds in this case to support a finding of a clear error in law on
this point. That error, if found to be present, may also reasonably be found to have impacted and
undermined trial fairness and on its face it contributes to concerns of an apprehension of bias,
unconscious or otherwise. In my view, on its own, the strength of this ground of appeal and its
probability of success meets the requirements of the "rare and unusual" case referred to in Smale
and Morris where it was found it was open to an appeal judge to grant an application for release
pending appeal but before sentence was imposed.
[75]
That leads directly to the final claimed ground of appeal, set out as the first ground in the
applicant's record. Ground (i) for the applicant's appeal alleges that there was a reasonable
apprehension of bias on the part of the trial judge that resulted in a failure to critically evaluate
the evidence and the credibility of the complainant.
[76] When I questioned Crown counsel whether allegations of a reasonable apprehension of
bias against the trial judge might well be added to the list of permissible grounds to grant release
post-conviction but pending appeal, or compound the seriousness of the other factors referenced
by Trotter J. in his text, Crown counsel agreed that it could form or enhance the foundation for a

- 21 release order to be granted. Nevertheless, he insisted that it is not clear on the record filed either
that the trial judge was biased or that other grounds of appeal would necessarily succeed.
[77]

The Supreme Court set out the law respecting reasonable apprehension of bias in R. v.

R.D.S.:zs
31

The test for reasonable apprehension of bias is that set out by de Grandpre J.
in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R.
369. Though he wrote dissenting reasons, de Grandpre J.'s articulation of the test
for bias was adopted by the majority of the Court, and has been consistently
endorsed by this Court in the intervening two decades ... De Grandpre J. stated, at
pp. 394-95:
... the apprehension of bias must be a reasonable one, held by reasonable
and right-minded persons, applying themselves to the question and
obtaining thereon the required information.... [T]hat test is "what would an
informed person, viewing the matter realistically and practically -- and
having thought the matter through -- conclude. Would he think that it is
more likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly."
The grounds for this apprehension must, however, be substantial and I ...
refus[ e] to accept the suggestion that the test be related to the "very
sensitive or scrupulous conscience".
32
.. . Although judicial proceedings will generally be bound by the
requirements of natural justice to a greater degree than will hearings before
administrative tribunals, judicial decision-makers, by virtue of their positions,
have nonetheless been granted considerable deference by appellate courts
inquiring into the apprehension of bias. This is because judges "are assumed to be
[people] of conscience and intellectual discipline, capable of judging a particular
controversy fairly on the basis of its own circumstances ... The presumption of
impartiality carries considerable weight, for the law will not suppose a possibility
of bias or favour in a judge, who is already sworn to administer impartial justice,
and whose authority greatly depends upon that presumption and idea". Thus,
reviewing courts have been hesitant to make a fmding of bias or to perceive a
reasonable apprehension of bias on the part of a judge, in the absence of
convincing evidence to that effect ...
33
Notwithstanding the strong presumption of impartiality that applies to
judges, they will nevertheless be held to certain stringent standards regarding bias
- "a reasonable apprehension that the judge might not act in an entirely impartial
manner is ground for disqualification"

25

[1997] 3 S.C.R. 484.

-22The Court futiher noted in R. v. R.D.S.Z 6 that if our system of justice and the judges who
preside over it are to enjoy "the respect and confidence of its society", then fairness and
impartiality must be both subjectively present and objectively demonstrated "to the informed and
reasonable observer."

[78]

[79] The Quebec Comi of Appeal in R. v. Ro/7 noted that lack of bias requires a " ... standard
of fairness ... that a court hold its hearings in a serene manner, without bias or appearance of bias,
allowing each party the opportunity to ji1lly and adequately present his or her case." (my
emphasis)
[80] An apprehension of bias does not necessarily require a finding of actual bias. The
impugned conduct must be assessed in light of the whole trial proceedings and all other portions
of the judgment.28 Comments made in the reasons for judgment and/or later during sentencing or
during later proceedings, such as the bail revocation hearing conducted here, can all be relied on
to assess the claim of an apprehension of bias, and "[t]his analysis does not necessarily involve
"reasoning back."29
[81] The issues in this case were whether or not the Crown had proven a lack of consent
beyond a reasonable doubt and the trial judge's proper application of the R. v. W (D.) framework
to assess credibility. The judgment, particularly the analysis portions from pg. 155-179, are
replete with references in the language of "rape", misogyny and battered women syndrome, and
various academic articles that the trial judge either relied on or took judicial notice o The trial
judge may then have used concepts drawn from these atiicles to rebut the arguments made by the
defence as to why the complainant's version of events had problems and should not be believed.
[82] I agree with counsel for the applicant that the manner in which the trial judge appears to
have looked at these issues, in patiicular the tone of voice that is evident on the face of his
reasons for judgment and on the bail revocation hearing, could suggest to a reasonable observer
that he allowed these social science sources to cloud his objective assessment of the evidence
and the issue of credibility that was the issue he had to decide. The breadth and depth of his
immersion in these topics, of the trial judge's own accord, may also have engendered and
developed in him the sympathy for the complainant and sexual assault victims generally that
appears to predominate in his reasons.
[83] This may well be his personal view, and understandable in the context of his personal life
informed by his years of experience as a trial judge, but as we tell juries, like all triers of fact, he
was obliged to assess the evidence without bias, sympathy, or prejudice. As I expect most trial
judges would, I agree with the trial judge that it is disturbing if sexual assault is as underreported
and unsuccessfully prosecuted as many statistics seem to indicate. However, that does not
alleviate his or my responsibility as a trial judge to properly review and evaluate the evidence
presented at trial in a fair, balanced and impartial manner.
26

Ibid, at para. 91.

(2008), 167 C. C. C. (3d) 203 (Que. C. A.) at p. 208.
28
SeeR. v. A.G. (1998), 130 C.C.C. (3d) 30, aff'd [2000]1 S.C.R. 439, at para. 42.
29
SeeR. v. Griffin, 2016 ONSC 2448; R. v. Brown (2003), 64 O.R. (3d) 161, (C.A.) at paras. 94 and 98.
27

-23[84] Judges are permitted to comment on public policy and the law needs to evolve on a caseby-case basis, but I fmd that a reasonable observer could and likely would conclude that this case
was significantly tainted by the trial judge's views of the perceived inequities that face sexual
assault complainants in the criminal justice system, as opposed to having fairly and
dispassionately reviewed and assessed the evidence and the credibility and reliability of that
evidence.
[85] There is a further aspect to this ground of appeal that arises out of the revocation hearing
itself, and that adds weight to concerns about the trial judge having a predisposed mind.
[86] At the bail revocation hearing, the trial judge indicated that he was unaware of any "rape"
cases, that is, cases of sexual assault involving sexual intercourse without consent, where the
offender had not been sentenced to a term of incarceration. Without having heard submissions of
counsel on sentencing, at which time he would have been advised of the case law referenced
above where persons convicted of serious sexual assaults were given non-custodial conditional
sentences to be served in the community 30, and without considering whether those cases had any
application in the case before him, the trial judge forcefully stated his opinion during the bail
revocation hearing that a sentence of incarceration must necessarily be imposed given his
perception of the egregiousness ofthe offence.
[87] I recognize that in the second paragraph of his reasons for revoking the applicant's bail,
the trial judge stated that:
We haven't dealt with the formal submissions with respect to sentencing, and
certainly, the court doesn't want to make any unilateral decisions without
submissions as to the ultimate sentencing.
Notwithstanding his disclaimer, by that point in the proceedings he had already provided a plain
indication that in his opinion a conditional sentence could never be appropriate in circumstances
like these. On this basis, he could be perceived by a reasonable person to have had a predisposed
mind on the question and to not be open to the sentencing submissions that he has yet to hear.
[88] Finally, the trial judge appears to have concluded that his perception of the egregiousness
of the applicant's conduct demanded that his bail be revoked and that he be detained to maintain
confidence in the administration of justice. This was a strong position to take, as I am sure the
trial judge would acknowledge. However, in reaching that conclusion, he did not take account of
the fact that it is not uncommon for serious offenders in high profile crimes - even ones
prosecuted by indictment, to remain on bail after conviction pending their sentence hearing.
[89] One example provided by applicant's counsel on this hearing was the decision in R. v.
1
Doodnaughf , where a medical doctor who sexually assaulted not one victim, but twenty-one
patients, and who was ultimately given a ten-year sentence, was still released on bail pending the
imposition of sentence, unlike this applicant. This applicant convicted in summary conviction
30
31

See note 3 above, and cases cited there.

R. v. Doodnaught, 2013 ONSC 8022; R. v. Doodnaught, 2014 ONSC 1196.

-24proceedings has plainly been found guilty of a serious sexual assault offence, but unlike Dr.
Doodnaught who was prosecuted on indictment and sentenced to a ten-year term of
imprisonment, the applicant's potential sentence is capped at eighteen months because the
Crown proceeded summarily.

[90] For all of these reasons and given the manner in which the case preceded, I find that the
personal opinions that are evident on the face of his reasons and the trial judge's ultimate
revocation of the applicant's bail pending sentencing, all support a claim of a reasonable
apprehension of bias in favour of the complainant. I consider this will be a strongly arguable
ground of appeal that may reasonably be expected to warrant and incite appellate intervention.

Conclusion
[91] Consistent with R. v. Smale and R. v. Morris, I accept that bail should be granted pending
appeal before sentence only rarely, and in unusual or limited circumstances. While that
discretion should be exercised sparingly and only in rare circumstances, I find this to be one case
that calls out for that relief to be granted. There are at least two grounds of appeal that appear to
me to be strongly arguable if not decisive, involving errors of law that go to trial fairness, both of
which manifest a strong likelihood that appellate intervention will result.

[92] Moreover, in circumstances where one of the grounds of appeal raises real and
meaningful concerns about whether the trial judge might reasonably be apprehended to have had
a predisposed mind or to have been biased in favour of one party over the other, it is plain to me
that the public interest in such, hopefully, rare circumstances, will always favour reviewability. It
will always favour the granting of bail to the applicant pending his appeal, rather than
enforcement ofthe trial judge's detention order given its questionable foundation.
[93] The application is granted. The applicant will be released on bail, comply with the terms
of his release pending his sentence and will surrender himself into custody on a date preceding
his sentencing hearing as counsel may agree.

Released:

August 9, 2016

CITATION: R. v. Ururyar, 2016 ONSC 5056

COURT FILE NO.: CR-10000187-00BR
DATE: 20160809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent

andMUSTAFA URARYAR
Applicant

REASONS FOR RULING

Michael G. Quigley J.

Released:

August 9, 2016