R v Belval, 2024 ABCA 45

In the Court of Appeal of Alberta Citation: R v Belval, 2024 ABCA 45 Date: 20240212 Docket: 2303-0126A Registry: Edmonton Between: His Majesty the King Respondent - and - Joseph Rene Skylar Belval Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 By Court Order, information that may identify the victims must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of The Honourable Justice Michelle Crighton _______________________________________________________ Application for Judicial Interim Release _______________________________________________________

Reasons for Decision of The Honourable Justice Michelle Crighton _______________________________________________________ Introduction [ 1 ] The applicant was convicted of three counts of sexual assault on three separate female complainants, who ranged from 14 to 16 years old. The assaults occurred over a two-month period and were comparable in their method. The applicant, who was 24 years of age at the time of the offences, was found guilty after trial and given a global sentence of 12 years.

He has appealed the convictions and the sentence and applies for judicial interim release pending his appeals. [ 2 ] In convicting the applicant, the trial judge found the applicant’s testimony lacked reliability and credibility. The judge found all three complainants credible and accepted their evidence. He rejected the defence of honest but mistaken belief in consent and found no evidentiary foundation for collusion by the complainants.

In imposing sentence, while the trial judge acknowledged that the applicant was a youthful offender with no prior record, this did not reduce his moral culpability in exploiting the vulnerabilities of the three young complainants through a power imbalance and grooming behaviour, and referenced the principles set down by the Supreme Court of Canada in R v Friesen , 2020 SCC 9 , [2020] 1 SCR 424 [ Friesen ], relating to sexual offences against children. He ultimately imposed a four-year sentence in respect of each 16-year-old complainant, and 6 years in respect of the 14-year-old complainant, all consecutive.

That global 14-year sentence was reduced by two years to account for totality. [ 3 ] In his factum on the conviction appeal, the applicant asserts the trial judge erred in his credibility findings, in rejecting the defence of honest but mistaken belief in consent, and by improperly placing a burden on the defence to prove actual collusion.

Further, the applicant challenges a mid-trial ruling about the admission of evidence. [ 4 ] In the Notice of Appeal in relation to his sentence appeal, the applicant states the trial judge failed to apply the parity principle, placed undue emphasis on grooming and the Supreme Court’s direction in Friesen , and engaged in stereotypical reasoning about male defendants of the applicant’s age. [ 5 ] In this application for judicial interim release, the applicant proposes a release plan which consists of residing at the Calgary Mustard Seed, with some financial support from friends and family, while he seeks employment and mental health services.

The Test for Judicial Interim Release [ 6 ] The test for judicial interim release pending a conviction appeal is set out in s 679(3) of the Criminal Code , as considered by the Supreme Court in R v Oland , 2017 SCC 17 , [2017] 1 SCR 250 [ Oland ]. Applicants under s 679 do not enjoy the presumption of innocence; the onus is on them to demonstrate that: (

a) their appeal is not frivolous, (

b) they will surrender themselves into custody in accordance with the terms of any release order , and (

c) that their detention is not necessary in the public interest. [ 7 ] As set out in s 679(4), for a sentence appeal, the first part of the test is whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were to be detained in custody.

The second and third parts of the test (whether the applicant will surrender himself into custody and whether the applicant’s detention is not necessary in the public interest) mirror those of a conviction appeal under s 679(3). [ 8 ] The applicant maintains that his grounds of appeal have a reasonable likelihood of success, his previous compliance with release conditions establishes that he will surrender himself as required, and that his release plan adequately addresses any public safety concerns.

While the Crown concedes that the applicant has satisfied his burden that he will surrender into custody, it submits that the applicant’s appeals are frivolous and that his detention is necessary in the public interest. Analysis [ 9 ] While the applicant meets the first two parts of the test set out in s 679(3) of the Criminal Code , he has not satisfied me that his detention is not necessary in the public interest. Nor has it been shown that considering the merits of his sentence appeal, it would cause unnecessary hardship if the applicant were not released (s 679(4)(a)).

Has the applicant shown that his appeal is not frivolous? [ 10 ] The requirement that an applicant’s appeal is not frivolous is a “very low bar”: Oland at para 20 . This requirement “weeds

out” those applications that will “necessarily” or “inevitably” fail: R v Haevischer, 2023 SCC 11 at para 67 , 480 DLR (4 th ) 477. [ 11 ] The applicant has raised several grounds of appeal that largely challenge the trial judge’s credibility and other fact findings. These findings are subject to a highly deferential standard of review: R v Bowers , 2022 ABCA 149 at para 27 .

The Crown argues the applicant has not pointed to specific errors, the trial judge’s credibility findings are owed deference, and the evidence supported the trial judge’s findings. [ 12 ] The applicant's additional grounds of appeal raise questions of law, including the admission of evidence and the evidentiary onus for collusion. The legal merit of these grounds must be considered.

The disputed evidence relates to a single complainant, and as argued by the Crown, the trial judge found insufficient evidence of collusion even to support an air of reality. [ 13 ] Given the “very low bar” to satisfy s 679(3)(a), I am satisfied the grounds raised are not frivolous and the first part of the test has therefore been met. However, the same cannot be said as it relates to s 679(4)(a). In my view, the applicant has not established that his sentence appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody.

As will be further addressed below under the public interest portion of the test, the applicant’s position at the time of sentencing was that a sentence of 5 to 6.5 years was fitting for these offences. To date he has served less than 9 months. In addition, there is nothing in his personal circumstances nor his release plan that establish it would be an unnecessary hardship if the applicant were to remain in custody while pursuing his sentence appeal. [ 14 ] The Crown concedes the applicant will surrender himself into custody in accordance with the terms of any release order.

The obstacle the applicant must overcome under s 679(3)(

c) and s 679(4)(

c) is to satisfy me that his detention is not necessary in the public interest. Has the applicant proved his detention is not necessary in the public interest? [ 15 ] As stated in Oland and R v Iyer , 2016 ABCA 407 at paras 15-16 , the public interest component considers two concerns: (

i) whether detention is necessary to protect public safety and (ii) whether detention is necessary to maintain public confidence in the administration of justice. Public safety is concerned with any risks to the safety and protection of the public if the applicant is released, particularly considering the nature of the offences.

Public confidence in the administration of justice balances the interests of the immediate enforcement of the applicant's sentence (enforceability) with the need to ensure a fair review of the applicant’s appeals (reviewability). [ 16 ] In my view, the public safety concerns in this matter are significant, and enforceability outweighs the reviewability interest in both appeals. [ 17 ] The offences in this matter are serious.

The applicant has been convicted and sentenced in respect of three separate major sexual assaults against three young female complainants, occurring over two months, and with one complainant who was 14 years old. The distinct circumstances of these offences can be seen as a pattern of behaviour. While the serious nature of these offences does not automatically bar judicial interim release, it does play an important role in assessing the danger posed to the community. [ 18 ] The applicant’s plan for release does little to address these public safety concerns.

While the applicant’s affidavit provides that he will not return to Grande Cache, where these offences occurred, he does not have employment, a place to live, or community support in place.

His plan, which consists of picking up his vehicle in Fort St John and driving to Calgary to stay at a shelter and accessing the food bank while he looks for work and permanent housing, is not a stable situation which lends to proper monitoring or strict bail conditions. [ 19 ] The seriousness of these offences also speak to the enforceability interest, where release pending appeal may shake public confidence in the administration of justice: Oland at paras 37-39, 66 . [ 20 ] Conversely, the reviewability interest in this case is low.

While any consideration of the merits at this stage is limited, there are significant concerns with the grounds raised by the applicant, even if they pass the threshold of not frivolous. Much of the applicant’s arguments challenge the trial judge’s credibility assessments, which are accorded significant deference on appeal. Moreover, the applicant’s argument that an erroneous mid trial ruling in respect of one complainant tainted the trial judge’s assessment of the applicant’s credibility generally may not sit comfortably with the evidentiary record read in its entirety.

Lastly, even in a situation of “inadvertent collusion” which the applicant asserts was not adequately considered by the trial judge, the applicant must still be able to point to some evidence that supports an air of reality to the possibility of collusion: R v Coreman , 2021 ABCA 107 at para 49 .

I do not share the applicant’s assessment of the record as containing a rich evidentiary foundation for collusion. [ 21 ] Similarly, on the sentence appeal the standard of review is stringent and appellate intervention will only be warranted if the trial judge made an error in principle which impacted the sentence or the sentence is demonstrably unfit: R v Lacasse , 2015 SCC 64 at paras 44 , 52, [2015] 2 SCR 1089 .

My preliminary assessment of the grounds raised by the applicant as to parity, stereotypical reasoning, reliance on Friesen and findings on grooming, is that these arguments lose lustre in the face of the evidence before the trial judge and the deference owed to his weighing of the relevant sentencing factors. [ 22 ] Finally, there is no real risk that the applicant will serve all or even a substantial portion of his 12-year sentence before both appeals are heard. The applicant’s factum on the conviction appeal was filed on January 4, 2024, and that appeal is scheduled to be heard on June 6, 2024.

Should the applicant’s conviction appeal be dismissed, his sentence appeal will have tight filing timelines. It is of note that at the time of sentencing, the applicant’s position was that the appropriate sentence was at least 5 to 6.5 years after considering totality. Conclusion

[ 23 ] On applying the test required by ss 679(3) and (4) of the Criminal Code , and upon consideration of public safety and public confidence in the administration of justice, the public interest would not be served by the applicant’s release. The nature and gravity of the offences represent a significant safety risk, and the release plan put forward by the applicant is not sufficient to mitigate that risk. Further, on a balancing of the relevant enforceability and reviewability interests, the circumstances favour enforceability.

While the grounds of appeal may satisfy the standard of “not frivolous” they are nevertheless of questionable merit when considered against the applicable standard of review. Moreover, there is no risk the applicant will serve more than a fraction of his sentence before the appeals are heard, even if his sentence is ultimately reduced. [ 24 ] The application for judicial interim release is dismissed. Application heard on February 7, 2024 Reasons filed at Edmonton, Alberta this 12th day of February, 2024 Crighton J.A. Appearances: D.E. Green for the Respondent M.W. Hopkins for the Applicant