COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Conron, 2025 ONCA 39

DATE: 20250121

DOCKET: M55674 (COA-24-OM-0381)

Lauwers J.A. (Motion Judge)

BETWEEN

His Majesty the King

Respondent

and

Joel Conron

Applicant/Appellant

Nick Whitfield, for the applicant/appellant

Patrick Quilty, for the respondent

Heard: January 14, 2025

ENDORSEMENT

[1] The applicant was convicted of one count of sexual assault by Kennedy J. of the Ontario Court of Justice on April 20, 2022. He was sentenced to 18 months incarceration and 2 years probation. His appeal to the Superior Court of Justice was dismissed by Braid J. on December 3, 2024.

[2] The notice of appeal to this court sets out the following grounds of appeal:

1. The Crown relied on inadmissible evidence about the Appellant's bad character. There is a reasonable possibility that the inadmissible evidence influenced the trial judge's credibility assessment of the Appellant.

2. That the trial judge erred in misapprehending the Appellant's evidence on the complainant's level of participation in the sexual activity. The trial judge's misapprehension of the Appellant's evidence on the complainant's participation led to an improper application of the air of reality test for the defence of honest mistaken belief in communicated consent.

[3] The Crown opposes bail.

(1) The Governing Principles

[4] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.

[5] The Crown does not argue that the applicant is a flight risk. The Crown submits that the grounds are perhaps not frivolous but they are weak, and that this must factor into the public interest analysis, especially since the applicant has already had the benefit of one appeal.

[6] I set out the governing principles for bail pending appeal at length in R. v. J.B., 2023 ONCA 264. As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32, (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.

[7] Under s. 679(3)(c), there are two components to consider: (1) public safety and (2) public confidence in the administration of justice: Oland, at para. 23; Farinacci, at pp. 47-48. Only the second component, public confidence, is engaged in this application. Consideration of the public confidence component involves striking the balance between enforceability and reviewability.

(a) Enforceability

[8] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at p. 48. In this case, there are several factors that weigh in favour of enforceability and against the release of the applicant.

[9] As noted in Oland, at para. 37, the seriousness of the crime figures in the assessment of the enforceability interest. This court has identified sexual offences as being on the higher end of the gravity spectrum in the context of bail pending appeal applications: see e.g., R. v. R.B.-M., 2024 ONCA 787. This court in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74, articulated the following guidance:

All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. [Emphasis added.]

(b) Reviewability

[10] As the court in Olandnotes, “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the 'not frivolous' criterion” (emphasis added): Oland, at para. 44.

(c) A Second Appeal

[11] Another set of principles also comes into play in this case because the applicant seeks a second appeal for which leave is required under s. 839 of the Criminal Code:

839 (1) Subject to subsection (1.1), an appeal to the court of appeal as defined in section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against

(a) a decision of a court in respect of an appeal under section 822; or

(b) a decision of an appeal court under section 834, except where that court is the court of appeal. [Emphasis added.]

[12] Doherty J.A. explained the gatekeeping function of s. 839 in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at paras. 29-32. He noted, at para. 30, that the applicant must establish two factors: first, “the significance, beyond the specific case, of the proposed question of law to the administration of justice in the province” and second, “the strength of the appeal.” He added, at para. 32, that leave may be granted “where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case”, and, “where there appears to be a ‘clear’ error even if it cannot be said that the error has significance to the administration of justice beyond the specific case.” Doherty J.A. also said that a judge considering bail pending appeal under s. 839 should “take a hard look at the potential merits of the application for leave to appeal before granting bail”: R. v R.H. (27 February 2020), Toronto, M51332 (Ont. C.A.).

[13] Finally, a first unsuccessful appeal “typically diminishes the weight to be given to the reviewability interest and increases the weight to be given to the enforceability interest”: R. v. Hoggard, 2024 ONCA 688, at para. 9, per Copeland J.A. Of course, each case must be assessed on its merits.

(2) The Principles Applied

[14] I assess each ground in turn.

(a) Bad Character Evidence

[15] The applicant argued that the Crown relied on inadmissible evidence about the applicant’s “bad character”, leading to “a reasonable possibility that the inadmissible evidence influenced the trial judge’s credibility assessment” of the applicant. This ground of appeal was not pressed by counsel. The trial judge made no mention of the applicant’s poor behaviour in her reasons, probably because it was not relevant to the sexual assault. The trial judge is presumed to know the law. In this judge-alone trial, it is reasonable to assume the trial judge placed no weight on that evidence. I give this ground no weight in the bail analysis.

(b) Misapprehension of the Evidence

[16] The more serious ground advanced by the applicant is that the trial judge misapprehended the applicant’s evidence on the complainant’s level of participation in the sexual activity before penetration. This misapprehension “led to an improper application of the air of reality test for the defence of honest mistaken belief in communicated consent.”

[17] I turn first to the law on judicial misapprehension of evidence.

[18] The applicant submits that the trial judge’s misapprehension is as described in R. v. Doodnaught, 2017 ONCA 781, at para. 71, per Watt J.A., citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218: “[A] failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings.” The applicant must demonstrate a misapprehension “but also a link or nexus between the misapprehension and the adverse result reached at trial”: Doodnaught, at para. 71. In Morrissey, Doherty J.A. explained, at p. 221: “Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a ‘true’ verdict”: see also R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. I note that in Bayford v. Boese, 2021 ONCA 442, 156 O.R. (3d) 241, the court commented, at para. 28, that “appellate intervention is warranted where the misapprehension of evidence is palpable and overriding, such that it is plain to see or obvious and goes to the very core of the outcome of the case.”

[19] I now turn to the claimed misapprehension.

[20] It is common ground that the complainant did not verbally consent to sexual intercourse. In his argument, the applicant focused on the complainant’s participation in sexual activity leading up to penetration, which he asserts gives weight to the air of reality test for the defence of the applicant’s honest but mistaken belief in communicated consent.

[21] The applicant asserts that the trial judge misapprehended the applicant’s evidence on the sexual activity leading up to penetration. The complainant’s active participation in sexual activity, on the evidence of the applicant, contradicted the trial judge’s description. The applicant takes particular issue with this passage from the reasons:

I also do not find that the evidence proffered by [the applicant] demonstrates consent to the sexual intercourse or raises a doubt that [the complainant] was consenting when the activity occurred. At most, on his evidence, she was a passive participant by the time he was on top of her about to engage in intercourse. Therefore, [the complainant’s] evidence in relation to the issue of consent was not undermined and I find that she was not consenting to the sexual intercourse with [the applicant].

[22] The applicant argues that in this recitation of the evidence, the trial judge shows her misapprehension by underplaying the complainant’s level of participation in the sexual activity immediately before the moment of unwanted penetration, and therefore fails to set out or come to grips with his evidence.

[23] But the trial judge’s statement must be put in context. The trial judge adverted to the applicant’s evidence without detailing it:

I do not find that [the complainant’s] engagement in the sexual activity up to penetration is evidence that she was consenting to the penetration. Again, consent must be considered in relation to each sexual act. I also do not find that the evidence proffered by [the applicant] demonstrates consent to the sexual intercourse or raises a doubt that the complainant was consenting when the activity occurred.

[24] It is clear that the trial judge had the applicant’s evidence well in mind when she made this statement; this led immediately to the text quoted by the applicant, which sought to characterize the complainant as merely a “passive participant”.

[25] For her part, the appeal judge assessed this evidence and the argument, and stated:

The findings of fact of the trial judge are entitled to deference. The appellant did not describe any actions by the complainant, at the moment prior to penetration, that demonstrated her consent to intercourse. The trial judge properly recognized that consent must be given at the time the activity is occurring and that there is no such thing as implied consent. The trial judge’s description of the appellant’s evidence was not inaccurate regarding the moment in time prior to penetration.

(3) Discussion

[26] My task, in considering the public confidence in the administration of justice, is to determine whether the strength of the misapprehension ground clearly surpasses the minimal standard of being not frivolous. I must also take into account the principles underpinning s. 839, which include “the significance, beyond the specific case, of the proposed question of law to the administration of justice in the province” and “the strength of the appeal”: R.R., at paras. 29-32.

[27] The merits of the argument that the trial judge misapprehended the evidence of the complainant’s participation immediately before the unwanted penetration are arguable but not strong. The applicant has not articulated a “proposed question of law” that has “significance to the administration of justice beyond the four corners of the case”: R.R., at para. 32. Doherty J.A observed that “most errors which fall under the rubric of a misapprehension of evidence will not be regarded as involving a question of law”: Morrissey, at p. 218. These words apply equally to this case.

[28] The applicant’s arguments are all case specific and amount to disagreement with the trial judge’s interpretation of the evidence. Taking a hard look, I am unable to discern a “clear error”.

[29] I now consider the balance between the reviewability interest and the enforceability interest with respect to public confidence in the administration of justice. The fact that the applicant’s first appeal did not succeed diminishes the weight to be given to the reviewability interest and increases the weight to be given to the enforceability interest.

(4) Disposition

[30] The offence for which the applicant was convicted and sentenced is a serious one, which affects the final balancing. I find that the weight in this case falls on the enforceability interest, and therefore decline to grant bail pending appeal.

[31] Moldaver J. urged appellate judges to “be mindful of the anticipated delay in deciding an appeal, relative to the length of the sentence”: Oland,at para. 48. In this case the sentence is relatively short, at 18 months incarceration, and it is possible that a delay in the hearing of the appeal might render the appeal futile. I therefore order the appeal to be expedited.

“P. Lauwers J.A.”