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), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-03-14

Docket: M50039 (C66430)

Motion Judge: Lauwers J.A.

Between

Her Majesty the Queen Respondent

and

Jeffrey Miller Applicant

Counsel

Matthew Wolfson, for the applicant

Randy Schwartz, for the respondent

Heard: March 11, 2019

Reasons for Decision

[1] The applicant was convicted of sexual assault, and was sentenced to 6 months' imprisonment followed by 18 months' probation. The applicant appeals his conviction.

[2] The complainant, a 25-year-old male, drank during the evening with the applicant to the point of intoxication and vomiting, which led him to sleep in a bed provided by the applicant. The last paragraph of the trial judge's reasons sets out her findings:

I find that Mr. Miller sexually assaulted [the complainant] on September 2, 2017 when he touched [the complainant] by putting his arm around him, by stroking his back, touching and performing oral sex on his penis while he slept and was unconscious during his sleep without his consent. Mr. Miller took no steps to ascertain [the complainant's] consent at any time during the evening or when he initiated the sexual activity. Mr. Miller will be convicted of sexual assault.

[3] I am satisfied that the applicant would surrender himself into custody in accordance with the terms of any bail order. The Crown does not argue that the applicant's detention is necessary in the public interest. The only issue argued by the Crown was that the appeal has no merit.

[4] Among the grounds of appeal are that the trial judge "misapplied the law concerning 'reasonable steps' in ascertaining consent" and that she "gave insufficient reasons for judgment" in explaining her findings in light of the applicant's evidence.

[5] The applicant's counsel argued several misapprehensions of evidence by the trial judge, which he argues, leads to the prospect that she did not properly assess the issue of consent on which the conviction turned.

[6] I find that the appeal is not frivolous within the meaning of s. 679(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46, recognizing the directions of the Supreme Court in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20.

[7] Mr. Miller is entitled to an appeal, and one that will not be rendered moot by the flow of time, which is entirely possible given the short sentence. In the circumstances the application for bail pending appeal is allowed.

"P. Lauwers J.A."