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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-10-30

Docket: M48353 (C63952)

Feldman J.A. (In Chambers)

Parties

Between

Her Majesty the Queen Respondent (Respondent)

and

C.R.A. Appellant (Applicant)

Counsel

Ms. Gerri Wiebe, for the appellant

Ms. Rebecca Schwartz, for the respondent

Heard: October 18, 2017

Reasons for Decision

A. Introduction

[1] The appellant seeks bail pending appeal following his fourth conviction for sexual assault. He received a sentence of four years. The Crown opposes on the basis that his detention is necessary in the public interest and the grounds of appeal are frivolous.

B. Section 679(3) of the Criminal Code

[2] Section 679(3) of the Criminal Code sets out the circumstances where an appellant may be released and provides that:

(3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for leave to appeal is not frivolous;

(b) he will surrender himself into custody in accordance with the terms of the order; and

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

[3] The applicant seeking bail pending appeal "bears the burden of establishing that each criterion is met on a balance of probabilities": see R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

C. The Strength of the Grounds of Appeal

[4] The Crown's case turned on the credibility and reliability of the complainant. She was at a friend's place with a number of other friends following a wedding reception. She awoke to find the appellant having intercourse with her. She immediately screamed for him to stop. DNA testing of her clothes determined that his semen was on her underwear. The appellant did not testify.

[5] The sole issue at trial was consent. The complainant's story contained a number of inconsistencies. Other witnesses who were present testified regarding utterances of both the complainant and of the appellant, including when he said that he hadn't done anything.

[6] At trial, the defence argued in detail that the inconsistencies in the complainant's evidence did not allow the court to be satisfied of the truth of her story beyond a reasonable doubt, and that the defence evidence did raise a reasonable doubt, applying the principles of R. v. W.(D.), [1991] 1 S.C.R. 742.

[7] The trial judge rejected all of these arguments. He addressed each inconsistency in detail and explained why he believed and accepted the evidence of the complainant. He also applied W.(D.) and took into account all the evidence that favoured the appellant.

[8] The reasons spanned almost 38 pages and are detailed and thorough. Great deference is owed by this court to the findings of a trial judge, particularly on issues of which witnesses are believed and the weight to be given to the evidence presented. In my view, therefore, the grounds of appeal appear to be very weak.

D. The Public Interest

[9] The Crown opposes bail on the basis of the public interest (Criminal Code, s. 679(3)(c)), arguing that the appeal is without merit and pointing to the appellant's three prior convictions for sexual assault, the serious nature of the offence and the lengthy penitentiary term imposed.

[10] The Crown acknowledges that the appellant has been on pre-trial bail for a lengthy period. However, at 36 years old, this is his fourth conviction for a sexual assault of an adult female whom he knew. Further, on sentencing, a psychological report suggested that his risk to reoffend in a sexual way was above average without treatment. In the presentence report, the appellant indicated that he was not interested in community supervision and would rather serve additional time in custody, although he apparently provided some context for this comment to the trial judge, explaining that the reporting requirements were onerous.

[11] In considering the balancing between enforceability and reviewability, there is "no precise formula" and the required assessment is "qualitative and contextual" (see Oland, at para. 49).

[12] At para. 50 of Oland, the Supreme Court stated that, "where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak".

[13] In my view, in light of the weakness of the grounds of appeal, the seriousness of the offence, the significant sentence, and the available evidence regarding risk to reoffend, the appellant has not met his onus to show that his detention is not necessary in the public interest (see Oland, at para. 19).

E. Result

[14] The application for release pending appeal is dismissed.

"K. Feldman J.A."