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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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); 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.

(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 File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20211222 DOCKET: M53007 (C69044)

Zarnett J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent

and

G.J.R. Applicant/Appellant

Counsel: Chris Rudnicki, for the applicant Justin Reid, for the respondent

Heard: December 10, 2021 by video conference

Endorsement

Introduction

[1] The applicant’s bail pending appeal was revoked, on consent, when he was charged with various offences while on house arrest bail. He now applies to be released again on bail pending the hearing of his appeal under a stricter plan of release and with a different surety.

[2] For the reasons that follow, the application is dismissed.

Background

[3] In May 2018, the applicant was charged with sexual assault, contrary to s. 271(1) of the Criminal Code, R.S.C. 1985, c. C-46. At the time of the alleged offence, he was on probation following a youth robbery conviction. He was released pending trial on house arrest bail (later varied to a midnight curfew) with his father as surety.

[4] His bail pending trial was not without incident. In September 2020, he was arrested in Thunder Bay for being unlawfully in a dwelling-house, drug trafficking, obstructing a peace officer, resisting a peace officer, and failing to comply with his release order. Following the September 2020 charges, he was again released on bail, under stricter house arrest conditions and with his mother as surety.

[5] On December 10, 2020, the applicant was convicted of the sexual assault charge which is the subject of this appeal. On February 11, 2021, he was sentenced to two years less a day in custody, followed by two years’ probation.

[6] The applicant appealed his conviction to this court.

[7] On February 11, 2021, the applicant was released on bail pending appeal on consent, on house arrest terms with exceptions for medical emergencies, while in the presence of one of his sureties, and for work, with his mother and his sister as sureties. At that time, he raised two grounds of appeal.

[8] On March 3, 2021, the applicant pleaded guilty to the September 2020 charges (except that his plea was to the lesser offence of drug possession instead of trafficking). He was given a 7-month conditional sentence order followed by 12 months’ probation. These orders included the following term: “Do not attend the District of Thunder Bay”.

[9] On October 13, 2021, the applicant was arrested in Thunder Bay and charged with resisting a peace officer, uttering a forged document, failing to comply with his release order, and failing to comply with his probation order.

[10] On October 21, 2021, the applicant’s bail pending appeal was revoked as a result of the new charges.

[11] On November 24, 2021, the applicant was granted bail on the October 2021 charges by a Justice of the Peace on terms whereby the applicant is to reside with his stepfather, who is to be his surety, with a financial commitment of $20,000, on house arrest terms.

[12] The applicant now applies for bail pending appeal on terms that mirror those put in place by the Justice of the Peace, but with a fivefold larger financial commitment ($100,000) by his surety, and a requirement that he wear an ankle bracelet so that he is subject, at his own expense, to GPS monitoring on a 24-hour basis.

[13] The Crown opposes the order, on the basis that the applicant has failed to establish that the appeal is not frivolous and that his detention is not necessary in the public interest, having regard to both public safety and public confidence.

Analysis

[14] To obtain bail pending appeal, the applicant must establish that: (1) the appeal is not frivolous; (2) he will surrender himself into custody in accordance with the terms of the release order; and (3) his detention is not necessary in the public interest: Code, s. 679(3)(a), (b) and (c).

[15] In my view, the applicant has not established that the appeal passes the merits hurdle.

[16] The applicant puts forward one ground of appeal as viable, having abandoned his other ground of appeal following the Supreme Court’s decision in R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1. He argues that the trial judge erred in the manner in which he addressed the defence of honest but mistaken belief in communicated consent. Specifically, he argues that the trial judge approached the issue as a question of whether the defence had an air of reality, but applied the wrong test when he determined that it had no air of reality and was thus not a defence he would have left with a jury if he had been sitting with one.

[17] The applicant argues that in doing so, the trial judge confused the questions of threshold and ultimate reliability. The air of reality test does not ask whether there is credible evidence to support a defence. It asks whether there is any evidence which, if believed, could give rise to a reasonable inference that the accused took reasonable steps to ascertain the complainant’s consent. Only if there is no evidence concerning a defence can it be kept from the jury or rejected without further consideration. The applicant argues that his own evidence provided an ample evidentiary foundation which, if believed, could give rise to a reasonable doubt about whether he knew the complainant was not consenting.

[18] There are two problems with this argument.

[19] First, the trial judge concluded that the defence did not apply for two independent reasons, only one of which was expressed in terms of an air of reality. His comments on the air of reality were expressed in the alternative to his primary conclusion.

[20] The trial judge first held that the defence did not apply because he found as a fact that the only communication the applicant received from the complainant was of non-consent. Section 273.2(c) of the Code precludes belief in consent being a defence where “ there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.” In coming to his conclusion that there was no evidence of communicated consent (and in fact, only the opposite), the trial judge did not refer to the air of reality test. Accordingly, the suggested misapplication of that test does not affect this independent reason for rejecting the defence.

[21] Second, this was a judge-alone trial. The trial judge was the arbiter of threshold and ultimate reliability. The trial judge applied the test in R. v. W.(D.), [1991] 1 S.C.R. 741 and found that he did not believe the applicant; the applicant’s evidence did not give rise to a reasonable doubt; and that on the evidence he did accept, the Crown had proven its case beyond a reasonable doubt.

[22] It is in that context that one must consider the applicant’s remaining argument. The trial judge as a second, alternative reason for rejecting the defence, held that the reasonable steps precondition to its application, found in s. 273.2(b) of the Code, was not met. He found that the applicant “ did not take any steps, let alone reasonable ones, to determine whether [the complainant] was consenting to the sexual activity in question.” He observed that the applicant, on his own evidence, had taken no such steps. It was in respect of this basis for rejecting the defence that the trial judge stated that the defence had no air of reality and that he would not have left it with a jury if he were sitting with one.

[23] But assuming for the sake of argument that the trial judge did not respect the distinction between threshold reliability and ultimate reliability in stating whether the defence had an air of reality, the arbiter of ultimate reliability in this case was the trial judge. Even if as a threshold matter there was evidence of the applicant which, if believed, could show reasonable steps were taken, as an ultimate matter, there was no such evidence, as the trial judge made a clear finding that he did not believe the applicant’s evidence, and that it did not raise a reasonable doubt.

[24] In G.F., the majority of the Supreme Court stressed the importance of a functional and contextual reading of a lower court’s reasons and directed appellate courts to resist the temptation to finely parse a judge’s reasons in search of error: at para. 69. In my view, a functional and contextual reading of these reasons can only lead to the conclusion that notwithstanding the use of the air of reality terminology, the reasonable steps precondition to the availability of the defence was rejected on the evidence that it was the trial judge’s job to ultimately assess.

[25] The applicant also argued that the trial judge had the wrong focus when considering the defence. The trial judge found that the actus reus had been made out because the complainant lacked capacity to consent. Therefore, the trial judge should have looked at whether the applicant had an honest but mistaken belief as to the complainant’s capacity to consent.

[26] Capacity is a precondition to consent: G.F., at para. 43. The defence is an honest but mistaken belief in communicated consent, not just a belief that the precondition to consent existed. Accordingly, the basis on which the trial judge found the actus reus was met did not restrict what had to be present for the defence to apply. The trial judge’s findings negated the defence.

[27] Whether an appeal meets the standard of “not frivolous” is a low bar: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. However, in my respectful view, the applicant’s ground of appeal does not meet it.

Conclusion

[28] In light of my conclusion on the merits of the appeal, it is unnecessary to consider whether the applicant has satisfied the other aspects of his onus. The application is dismissed.

“B. Zarnett J.A.”