Decisions of the Court of Appeal

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cyrus, 2025 ONCA 296 [1]

DATE: 20250416

DOCKET: M55855 (C70815)

George J.A. (Motion Judge)

BETWEEN

His Majesty the King

Respondent

and

Adriel Cyrus

Appellant

Carter Martell and K.Y. Tina Yuen, for the appellant

Emily Bala, for the respondent

Heard: in writing

REASONS FOR DECISION

OVERVIEW

[1]          The trial judge found that the appellant had forced two women to have vaginal intercourse with him, on two occasions, in a parking garage stairwell and that he had threatened one of them. The appellant was convicted of two counts of sexual assault and one count of uttering a threat. He was declared a dangerous offender and sentenced to an indeterminate period of incarceration.

[2]          The appellant appeals both conviction and sentence. He has secured Legal Aid funding for his conviction appeal, and was granted a s. 684 order in relation to his sentence appeal.

[3]          The appellant’s previous counsel filed a solicitor notice of appeal against conviction on June 29, 2022.  In September 2023 Mr. Martell took over the appeal from previous counsel. On September 15, 2023 a notice of change in representation was filed in relation to the conviction appeal only; the sentence appeal was, and remained, in the inmate stream under a separate file number. The conviction appeal was perfected on December 2, 2024. The sentence appeal has not been perfected.

[4]          Prior to perfecting the conviction appeal, Mr. Martell advised that the appellant was going to abandon his sentence appeal. The appellant later changed his mind, advising that he would be pursuing his sentence appeal in the inmate stream. On January 9, 2025, Mr. Martell filed an amended notice of appeal that joined the conviction and sentence appeals. I was then assigned as the case management judge.

[5]          The appellant now seeks to bifurcate the conviction and sentence appeals. The Crown opposes the request. Counsel agreed that this motion could proceed before me in writing.

DISCUSSION

[6]          In R. v. M.W., 2015 ONCA 644, 340 O.A.C. 399, at para. 6, Tulloch J.A. (as he then was) wrote that:

It is preferable that the appeals be heard together. The advantages of this order of proceeding are clear. It enhances the efficient use of the court’s resources, avoids the possibility of contradictory outcomes, and ensures that the panel hearing the sentence appeal has the benefit of the full context for the appeal.

While not an absolute rule, conviction and sentence appeals “should only be bifurcated where there are compelling reasons to do so”: M.W., at para. 6.

[7]          Are there compelling reasons to bifurcate the appeals here? The appellant says there are. First, he points out that the conviction appeal was perfected more than three months ago, is ready to be heard, and should be argued as soon as possible. He submits that a prompt hearing on the conviction appeal is in the interests of justice because if the appeal is allowed the complainants will have to testify at a new trial, many years after the first trial, and that any further delay should be avoided.

[8]          Second, the appellant contends that because there are no common issues between the conviction and sentence appeals, it will be unnecessary for the panel hearing the sentence appeal to review the trial transcript. As his counsel puts it, “the particular facts on which the index convictions are based are not particularly germane to the trial judge’s reasons, and are reviewed thoroughly in the trial judge’s reasons for judgment.” In his view, as the conviction and sentence appeal records are distinct from one another, it would actually be more efficient to bifurcate the appeals.

[9]          I am not persuaded by these arguments. The appellant’s concern about the need to avoid further delay rings hollow when he himself is largely responsible for the delay to this point. The appellant commenced a sentence appeal in the inmate stream. He later indicated that he would be abandoning it. At one point he changed his mind and said he was going to represent himself. And then a solicitor notice of appeal from sentence was filed. I appreciate that there may have been issues with Legal Aid at the front end and that a s. 684 application was ultimately required, but this procedural history does not reflect a concern about unnecessarily delaying the complainants’ testimony.

[10]       Based on my review of the record, there appears to be only two possible explanations for why the sentence appeal has not yet been perfected: 1) the appellant’s uncertainty about whether, and then about how, to proceed with his sentence appeal, and 2) his preference to await the outcome of this bifurcation motion before doing so. Neither reason, whether considered alone or together, justifies bifurcation.  

[11]       Nor am I persuaded by the appellant’s argument that there are no common issues between the conviction and sentence appeals. Although, as the appellant points out, the sentence appeal focusses on the legal correctness of the dangerous offender designation, the details of the predicate offences are relevant to whether he meets the legal criteria for a dangerous offender designation and to the imposition of an indeterminate sentence. I agree with the Crown’s submission that “a panel hearing a bifurcated sentence appeal will undoubtedly have to duplicate some of the work undertaken by the panel that heard the conviction appeal”. The fact that the sentence appeal concerns a dangerous offender designation is not, standing alone, a compelling reason to bifurcate the appeals.

[12]       As Dawe J.A. did in R. v. D.L., 2024 ONCA 908, at paras. 15-20, I must weigh the potential advantages of bifurcation against the inefficiency of having two different panels review the same trial record. And, while the appellant’s circumstances are not identical to those present in D.L., I am not convinced that any differences overcome the inefficiency of bifurcation in this case.

CONCLUSION

[13]       The motion is therefore dismissed.

[14]       At the last case management meeting I declined to impose a deadline for perfection, opting to wait until after this motion was disposed of. If the parties are unable to agree on a deadline, or if there any other issues that require my attention, counsel are to contact staff to schedule a further meeting.

“J. George J.A.”