WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.B., 2014 ONCA 722

DATE: 20141020

DOCKET: M44021, C59056

Hourigan J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

R. B.

Applicant

Jill Makepeace, for the applicant

Hannah Freeman, for the respondent

Heard: October 17, 2014

On application for judicial interim release pending appeal from the convictions entered on June 10, 2014 and the sentence imposed on October 16, 2014 by Justice R.D. Cornell of the Superior Court of Justice, sitting without a jury.

Hourigan J.A.:

[1] The applicant was convicted of one count of sexual assault and one count of sexual interference. He brings this application seeking bail pending his appeal.

BACKGROUND FACTS

[2] The applicant is 39 years of age and resides in Sudbury. He has four children, including one son who is severely disabled and under his care.

[3] On or about August 24, 2010, the applicant was charged with sexual assault and sexual interference in relation to allegations made by a three-year old complainant, who is the daughter of a friend of his then girlfriend (the "first charges").

[4] On or about May 10, 2011, he was charged with sexual assault and sexual interference regarding a complainant who was between four and six years of age at the time of the alleged assaults and who was the daughter of a woman with whom he was residing (the "second charges").

[5] The second charges came to trial first and the applicant was convicted. He was sentenced to 28 months' imprisonment on May 20, 2014.

[6] On May 29, 2014, by order of Justice Juriansz, he was released on bail pending appeal. That bail order was varied by Justice Benotto on July 25, 2014.

[7] On June 10, 2014, the applicant was convicted of the first charges. He was sentenced on October 16, 2014 to four years' imprisonment. He now seeks bail pending appeal in relation to those convictions.

ANALYSIS

(a) The Test

[8] Pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, the applicant has the onus of establishing that:

(i) his appeal is not frivolous;

(ii) he will surrender in accordance with the terms of the release order; and

(iii) his detention is not necessary in the public interest.

[9] The Crown acknowledges that the appeal is not frivolous and concedes, therefore, that the applicant has met his onus on the first part of the test.

[10] The Crown also concedes that there is no issue that the applicant will surrender in accordance with the terms of the release order.

(b) The Public Interest

[11] The sole issue for determination on this application is whether the applicant has met his onus of establishing that detention is not necessary in the public interest.

[12] Justice Watt reviewed the governing principles regarding the public interest criterion in R. v. Manasseri, 2013 ONCA 647, 313 O.A.C. 55, at paras. 40-43:

The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.

But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant's liberty is at stake: Farinacci, at p. 48.

The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 2000 CanLII 5680 (ON CA), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch'rs), at para. 19; R. v. Demyen (1975), 1975 CanLII 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 1994 CanLII 9754 (NL CA), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187.

[13] With these principles in mind, I turn to a consideration of the public interest criterion in the circumstances of the present case.

(c) The Merits

[14] In oral submissions, counsel for the applicant advanced two principal arguments regarding the merits of the appeal.

[15] First, she submitted that the trial judge erred in rejecting the evidence of the applicant, without any assessment or evaluation of his testimony, simply on the basis that he found the complainant to be credible. It is the applicant's position that the trial judge had to do more to explain why he rejected the applicant's evidence and that he was not permitted to turn the trial into a credibility contest.

[16] In making this argument, counsel distinguished R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), which the trial judge relied on for the proposition that an outright rejection of an accused's evidence based on a reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is a valid explanation for such rejection. Counsel submitted that in R. v. J.J.R.D, there was evidence corroborating the allegations in the form of diary entries, whereas in the present case, there is no corroborating evidence.

[17] In my view, this is a weak ground of appeal.

[18] I note that the trial judge referred to R. v. Williams, 2010 ONSC 184, and explicitly instructed himself that the trial should not devolve into a credibility contest. In addition, he found that the case required the application of the principles enunciated in R. v. W. (D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[19] I am also not satisfied that R. v. J.J.R.D is distinguishable. It cannot be said that there is no corroborating evidence in the present case. For instance, the handwritten drawing by the complainant of the accused's penis is corroborative. So too is the accused's statement, made to the complainant's mother while discussing the police investigation, that he wonders if he does things that he does not remember because he is not conscious. In addition, the trial judge found that the similar act evidence related to the first charges.

[20] The second principal argument made regarding the strength of the appeal is not found in the Notice of Appeal. Counsel submitted orally that the trial judge's reference to the fact that the complainant's version of events did not waver at any point – from her disclosure, to her police video statement, to her testimony at the preliminary inquiry, to her evidence at trial – was an impermissible use of prior consistent statements.

[21] In my view, the applicant has an arguable position on this issue, as it does not appear from the trial judge's reasons that this reference was tied to the issue of identification and no allegation of recent fabrication had been made. However, I am not satisfied that this isolated reference in the trial judge's very thorough reasons measurably strengthens what is otherwise a weak appeal.

(d) Public Interest Balancing

[22] In my view, as expressed above, the applicant has a weak appeal. I balance this view against the fact that the accused was convicted of serious crimes against vulnerable young children and that the applicant has received a fairly lengthy sentence.

[23] I find that the combination of convictions for serious offences, a fairly lengthy sentence, and a weak appeal, demonstrate that the immediate enforcement of the judgement below should be of paramount concern. Therefore, the public interest balance required by Farinacci favours immediate enforcement of the sentence rather than judicial interim release.

DISPOSITION

[24] For these reasons, the applicant has not met his onus under s. 679(3) of the Criminal Code and the application is dismissed accordingly.

"C. William Hourigan J.A."