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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-03-18

Docket: M50187 (C66594)

Motion Judge: Lauwers J.A.

Between

Her Majesty the Queen Respondent

and

Alexander Rose Applicant

Counsel:

• Cate Martell, for the applicant
• Rebecca De Filippis, for the respondent

Heard: March 13, 2019

Reasons for Decision

[1] The applicant was convicted of one count of sexual assault on August 29, 2018 by Corbett J. of the Ontario Superior Court. He was sentenced on March 13, 2019 to 21 months' imprisonment followed by 2 years of probation. The applicant wishes to appeal his conviction and is seeking bail.

[2] The trial judge's reasons are not yet available. Counsel's notes have been provided as a substitute and the parties appear to agree upon their accuracy.

[3] It was not disputed at trial that the applicant had sex with the complainant. The only issue was whether she had consented. The trial judge concluded that she had not consented.

[4] The applicant was out on bail for a long period of time pending trial. I am satisfied that he would surrender himself into custody in accordance with the terms of any bail order. The Crown argues that the applicant's detention is necessary in the public interest and adds that the appeal has no merit.

[5] The applicant's essential argument is that, in reaching his credibility findings, the trial judge relied far too heavily on demeanour evidence, contrary to the Supreme Court's decision in R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 14. There the court found that it was unsafe to uphold the conviction for sexual assault, which seemed to be based largely on the complainant's emotional state just after the event.

[6] The applicant says that in this case the trial judge also relied heavily on a videotape of the complainant's demeanour just after the event. According to the record of his oral reasons, the trial judge noted that the problems with the complainant's evidence were numerous and serious enough that it would be unsafe to convict solely on the basis of her viva voce evidence, but that corroboration by video satisfied him beyond a reasonable doubt.

[7] The video depicted the complainant's demeanour as she waited in the apartment lobby for her ride to arrive, over about one-half hour. The applicant argues that the trial judge's interpretation of the video is simply unreasonable, particularly in light of the Supreme Court's decision in R. v. J.A.A.

[8] The applicant also argues that the trial judge failed to adequately account in his reasons for the problems with the complainant's evidence, in particular her lie to the police investigator, and her lie at the preliminary inquiry. The applicant says that the trial judge did not attend so much to the complainant's actual evidence as to speculation on what the reasons could be for the inconsistencies in her evidence.

[9] Although Crown counsel pointed to the public interest as supporting a refusal of bail, her argument largely addressed the merits. Based upon the limited record that I currently have available to me, it cannot be said that the grounds of appeal are frivolous, particularly in a case that turned so heavily upon credibility findings. While the predicate offence is an obviously serious one, based upon the applicant's history of bail compliance, and the surety plan put forward, I am satisfied that he will comply with all terms of release. Standing on its own, the nature of the offence does not justify detention: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20.

[10] If bail were to be denied, the applicant would likely serve a significant portion of his sentence, if not the custodial period of his sentence before release, before the appeal was heard and determined in the ordinary course. In the circumstances the application for bail pending appeal is allowed on the conditions set out in the draft order approved by the parties and filed with the court.

P. Lauwers J.A.