WARNING

The Judge hearing this application directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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 of Appeal for Ontario

Date: 2018-05-18

Docket: M49115 (C65283)

Motions Judge: Trotter J.A.

Between

Her Majesty the Queen Respondent

and

C.L. Applicant/Appellant

Counsel:

• David J. D'Intino, for the applicant
• Susan Magotiaux, for the respondent

Heard: May 9, 2018

ENDORSEMENT

A. Introduction

[1] After a seven-day trial in the Ontario Court of Justice, the appellant was convicted of sexual assault (Criminal Code, s. 271) and being unlawfully in a dwelling house (s. 349(1)). He received a sentence of two years' less a day imprisonment and two years of probation, along with other ancillary orders. The appellant seeks bail pending appeal. For the following reasons, the application is dismissed.

B. The Trial and Sentencing

[2] The victim of the offences was an acquaintance of the appellant. The appellant and his wife attended a birthday party, followed by an "afterparty." The victim was at both of these events. She consumed a great deal of alcohol.

[3] The victim testified that she had some memory of the birthday party, and very little memory of the afterparty. She had no memory of getting home. The victim testified that she woke up at her home with the accused's hands down her pants. He told her to get on a couch and he penetrated her anally. The victim attempted to fight the appellant off. He pulled her to the bedroom and tried to vaginally penetrate her. She tried to stop him, and he rubbed his penis against her until he ejaculated.

[4] The appellant testified that he and his wife drove the victim home from the afterparty. In his evidence in-chief, the appellant testified that his wife and another person "helped" the victim from the afterparty to the car. In cross-examination, the appellant admitted that the victim had to be "carried" to the car.

[5] The appellant testified that the victim invited him and his wife into her home for more drinks. They stayed for a while before going home. When he got home, the appellant realized that he had left his phone at the victim's home. He returned to get it. The appellant went into the victim's home through a partly open door. The victim was half asleep on the couch. She woke up and insisted that the appellant stay with her. According to the appellant, the victim initiated sexual activity, culminating in consensual vaginal intercourse on the couch and in her bedroom.

[6] It was the Crown's position at trial that the victim lacked the capacity to consent. A toxicologist testified about the victim's state of sobriety. The Crown also introduced evidence of witnesses who were with the victim throughout the night. Photographs and a video clip showed the victim to be in an extreme state of intoxication, either unconscious or barely conscious.

[7] The appellant testified that, when he returned to the victim's home, she was not as intoxicated as she had been previously. The trial judge specifically rejected this evidence, and the appellant's general version of events. He accepted the victim's evidence and was satisfied of guilt beyond a reasonable doubt based on the victim's incapacity to consent.

[8] Because the appellant is Aboriginal, a Gladue Report was prepared for sentencing. This was in addition to a Pre-Sentence Report (PSR). As noted above, the trial judge sentenced the appellant to imprisonment for two years less a day.

C. The Bail Pending Appeal Application

(1) The Application Record and Bail Compliance

[9] Before applying the criteria for bail pending appeal in s. 679(3) of the Criminal Code, it is necessary to address a problem that arose with the materials filed in support of this application.

[10] While the appellant was on bail pending his trial, and later while pending his sentencing, he was charged on two separate occasions with breaching his recognizance, contrary to s. 145(3) of the Criminal Code. These charges remain outstanding. Both breaches related to a condition that specified where the appellant could live. The appellant did not mention these outstanding charges in his bail pending appeal affidavit. Neither did his proposed surety (his wife). Crown counsel uncovered this information. As a result, the appellant and his proposed surety swore new affidavits. A further proposed surety (the appellant's mother) was added. In his new affidavit, the appellant gave some details about the new charges. However, he offered no explanation for the omission of this information in his first affidavit.

[11] In essence, the breach allegations are as follows. The appellant was initially released to live with his father. In October of 2016, as a result of being found at the home he owns with his wife, he was charged with fail to comply. The appellant was released again and ordered to reside with his aunt. A compliance check at this address on March 28, 2018, revealed that he was not there. The appellant's aunt told police that she had not seen him in roughly four months.

[12] In both of his bail pending appeal affidavits, the appellant lists his residence as the home that he owns with his wife. In both sworn documents he asserts, "I have not lived at any other address in the preceding three years."

[13] The new criminal charges should have been disclosed. Judges of this court rely heavily on the trustworthiness of affidavits sworn in support of bail pending appeal applications. They are expected to be both accurate and complete.

[14] Crown counsel routinely conduct criminal history inquiries to ensure the accuracy of the information that is placed before judges deciding bail pending appeal applications. However, this does not relieve bail applicants and their proposed sureties of the obligation to be candid and comprehensive. In this case, had it not been for the Crown's diligence, I would have been misled in an important way. I stop short of concluding that there was a deliberate attempt to mislead me. However, in the absence of an explanation, the person who swears or affirms an affidavit must bear responsibility for its contents.

[15] Outstanding criminal charges are important for bail purposes, especially those that point to bail compliance issues. In the pre-trial context, s. 518(1)(c)(ii) of the Criminal Code permits the prosecutor to lead evidence of outstanding charges. Depending on the circumstances, an individual charged with fresh offences while on bail may face a reverse onus at his or her bail hearing: see s. 515(6)(a)(i) and R. v. Morales, [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91. Charges under ss. 145(2) to (5) always result in a reverse onus situation: s. 515(6)(c).

[16] I appreciate that at this stage the appellant is presumed innocent of the two new charges. However, that does not detract from their relevance and importance to bail pending appeal. Dealing with a similar situation in R. v. Lengelo (4 October 2011), M40503/C54249 (Ont. C.A.), Doherty J.A. said: "It is difficult to think of anything that would be more relevant on a bail application than the existence of outstanding charges coupled with a failure to appear."

[17] The new charges, combined with the appellant's failure to mention them in his affidavits (not to mention his assertion that for several years he lived at an address contrary to his bail conditions at the time), undermine any faith I can place in the appellant's promise in his affidavit that, "I will obey any conditions placed upon me by this Court while I am in the community."

[18] There is more. The appellant told the PSR author that he was regularly consuming alcohol with friends from work and that, in the weeks leading up to sentencing, he consumed cocaine. Again, this was contrary to his pre-trial bail conditions and the conditions of his most recent release just prior to sentencing. It does not inspire confidence about compliance with any bail pending appeal order that might be made.

(2) The Public Interest

[19] A more fundamental problem with this bail application resides in the application of the public interest criterion in s. 679(3)(c) of the Criminal Code. In my view, the balancing between the enforceability and reviewability interests inherent in this concept favours detention.

[20] I am prepared to find that the appeal is "not frivolous" within the meaning of s. 679(3)(a). I do so because that bar is widely recognized as being extremely low: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. It is another matter when it comes to sizing up the strength of the appeal for public interest purposes.

[21] The materials filed fail to demonstrate that the grounds of appeal have sufficient strength to overcome the serious enforceability considerations present in this case.

[22] The victim was attacked by a friend while she was in her own home. She was penetrated anally. At the time, she was so compromised by alcohol that she was incapable of consenting. The attack commenced while she was sleeping. When she woke up, she was unable to defend herself against the appellant.

[23] The trial judge provided very thorough reasons. While the correctness and reasonableness of these reasons will ultimately be reviewed by a panel of this court, for bail purposes, they are very compelling. They reveal no obvious error.

[24] The appellant argues that the trial judge gave insufficient weight to crucial pieces of evidence that should have impacted on the victim's credibility. He points to the fact that the trial judge failed to make more of the victim's lack of explanation for how cocaine was detected in her blood. The trial judge addressed this factor in his assessment of the victim's credibility. Needless to say, deference is at its highest when it comes to a trial judge's credibility findings.

[25] Similarly, the appellant argues that the trial judge erred in the application of R. v. W.(D.), [1991] 1 S.C.R. 742. There appears to be little if any merit to this assertion. The application of W.(D.) is part of the daily diet of criminal trial judges. On the basis of the materials before me, the trial judge's reasons reflect a proper appreciation of these principles.

[26] The appellant alleges error in the trial judge's failure to consider the defence of mistaken belief in consent. Applying R. v. Davis, [1999] 3 S.C.R. 759, at paras. 82-85, the trial judge concluded that the competing versions of events of the victim and the appellant rendered the defence unavailable. According to the appellant, the victim was a willing participant in a consensual sexual encounter that she initiated. The victim said she was attacked while she was passed out. On the material before me, I see no error in the trial judge's conclusion that there was no air of reality to the defence.

[27] Lastly, the appellant argues that the trial judge erred in finding that the victim was too intoxicated to consent. The trial judge provided careful reasons for his findings on this issue and his application of s. 273.1(2)(b) of the Criminal Code, which he found vitiated consent in the circumstances. There was solid grounding in the evidence to support this conclusion, including the video and photographic evidence of the victim in her compromised state earlier in the evening.

[28] The appellant's release is not in the public interest.

D. Conclusion

[29] The application for bail pending appeal is dismissed.

"Gary T. Trotter J.A."