



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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 OF APPEAL FOR ONTARIO

CITATION: R. v. R.B., 2014 ONCA 722

DATE: 20141020

DOCKET: M44021, C59056

Hourigan J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

R. B.

Applicant

Jill Makepeace, for the applicant

Hannah Freeman, for the respondent

Heard: October 17, 2014

On application for judicial interim release pending appeal from the convictions
    entered on June 10, 2014 and the sentence imposed on October 16, 2014 by
    Justice R.D. Cornell of the Superior Court of Justice, sitting without a jury.

Hourigan J.A.:

[1]

The applicant was convicted of one count of sexual assault and one count
    of sexual interference. He brings this application seeking bail pending his
    appeal.

BACKGROUND FACTS

[2]

The applicant is 39 years of age and resides in Sudbury. He has four
    children, including one son who is severely disabled and under his care.

[3]

On or about August 24, 2010, the applicant was charged with sexual
    assault and sexual interference in relation to allegations made by a three-year
    old complainant, who is the daughter of a friend of his then girlfriend (the
    first charges).

[4]

On or about May 10, 2011, he was charged with sexual assault and sexual interference
    regarding a complainant who was between four and six years of age at the time
    of the alleged assaults and who was the daughter of a woman with whom he was
    residing (the second charges).

[5]

The second charges came to trial first and the applicant was convicted.
    He was sentenced to 28 months imprisonment on May 20, 2014.

[6]

On May 29, 2014, by order of Justice Juriansz, he was released on bail
    pending appeal. That bail order was varied by Justice Benotto on July 25, 2014.

[7]

On June 10, 2014, the applicant was convicted of the first charges. He
    was sentenced on October 16, 2014 to four years imprisonment. He now seeks
    bail pending appeal in relation to those convictions.

ANALYSIS

(a)     The Test

[8]

Pursuant to s. 679(3) of the
Criminal Code
, R.S.C. 1985, c.
    C-46, the applicant has the onus of establishing that:

(i) his appeal is not
    frivolous;

(ii) he will surrender in
    accordance with the terms of the release order; and

(iii) his detention is not
    necessary in the public interest.

[9]

The Crown acknowledges that the appeal is not frivolous and concedes,
    therefore, that the applicant has met his onus on the first part of the test.

[10]

The
    Crown also concedes that there is no issue that the applicant will surrender in
    accordance with the terms of the release order.

(b)     The Public Interest

[11]

The
    sole issue for determination on this application is whether the applicant has
    met his onus of establishing that detention is not necessary in the public
    interest.

[12]

Justice
    Watt reviewed the governing principles regarding the public interest criterion
    in
R. v. Manasseri
, 2013 ONCA 647, 313 O.A.C. 55, at paras. 40-43:

The public interest criterion in section 679(3)(c) requires a
    judicial assessment of the need to review the conviction leading to
    imprisonment, on the one hand, and the need to respect the general rule of immediate
    enforceability of judgments, on the other:
R. v. Farinacci
(1993), 86
    C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires
    that judgments be enforced. The public interest may thus require that a person
    convicted of a very serious offence, like second degree murder, who advances
    grounds of appeal that are arguable but weak, be denied release pending
    appeal:
Farinacci
, at p. 48.

But public confidence in the administration of justice also
    requires that judgments be reviewed, and that errors, if any, be corrected,
    especially where an appellants liberty is at stake:
Farinacci
,
at p. 48.

The public interest ground assumes a place of greater
    prominence in cases in which an applicant has been convicted of a very serious
    offence and faces the prospect of a lengthy period of incarceration:
R. v.
    Baltovich
(2000), 144 C.C.C. (3d) 233 (Ont. C.A.  Chrs), at para. 19;
R.
    v. Demyen
(1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326.  As a
    result, release of an applicant pending appeal of a murder conviction is rare:
Baltovich
, at para. 20.  But where the grounds of appeal are strong
    and a serious concern about the accuracy of the verdict emerges from the
    materials filed, the public interest may favour release:
Baltovich
,
    at para. 20;
R. v. Parsons
(1994), 30 C.R. (4
th
) 169 (Nfld.
    C.A.), at pp. 186-187.

[13]

With
    these principles in mind, I turn to a consideration of the public interest
    criterion in the circumstances of the present case.

(
c
)
The
M
erits

[14]

In
    oral submissions, counsel for the applicant advanced two principal arguments
    regarding the merits of the appeal.

[15]

First,
    she submitted that the trial judge erred in rejecting the evidence of the
    applicant, without any assessment or evaluation of his testimony, simply on the
    basis that he found the complainant to be credible. It is the applicants
    position that the trial judge had to do more to explain why he rejected the
    applicants evidence and that he was not permitted to turn the trial into a
    credibility contest.

[16]

In
    making this argument, counsel distinguished
R. v. J.J.R.D.
(2006), 215
    C.C.C. (3d) 252 (Ont. C.A.), which the trial judge relied on for the proposition
    that an outright rejection of an accuseds evidence based on a reasoned
    acceptance beyond a reasonable doubt of the truth of conflicting evidence is a
    valid explanation for such rejection. Counsel submitted that in
R. v.
    J.J.R.D
, there was evidence corroborating the allegations in the form of
    diary entries, whereas in the present case, there is no corroborating evidence.

[17]

In
    my view, this is a weak ground of appeal.

[18]

I
    note that the trial judge referred to
R. v. Williams
, 2010 ONSC 184, and
    explicitly instructed himself that the trial should not devolve into a
    credibility contest. In addition, he found that the case required the
    application of the principles enunciated in
R. v. W. (D.)
[1991] 1
    S.C.R. 742.

[19]

I
    am also not satisfied that
R. v. J.J.R.D
is distinguishable. It cannot
    be said that there is no corroborating evidence in the present case. For
    instance, the handwritten drawing by the complainant of the accuseds penis is
    corroborative. So too is the accuseds statement, made to the complainants
    mother while discussing the police investigation, that he wonders if he does
    things that he does not remember because he is not conscious. In addition, the
    trial judge found that the similar act evidence related to the first charges.

[20]

The
    second principal argument made regarding the strength of the appeal is not
    found in the Notice of Appeal. Counsel submitted orally that the trial judges
    reference to the fact that the complainants version of events did not waver at
    any point  from her disclosure, to her police video statement, to her
    testimony at the preliminary inquiry, to her evidence at trial  was an
    impermissible use of prior consistent statements.

[21]

In
    my view, the applicant has an arguable position on this issue, as it does not
    appear from the trial judges reasons that this reference was tied to the issue
    of identification and no allegation of recent fabrication had been made.
    However, I am not satisfied that this isolated reference in the trial judges
    very thorough reasons measurably strengthens what is otherwise a weak appeal.

(d)     Public Interest Balancing

[22]

In
    my view, as expressed above, the applicant has a weak appeal. I balance this view
    against the fact that the accused was convicted of serious crimes against vulnerable
    young children and that the applicant has received a fairly lengthy sentence.

[23]

I
    find that the combination of convictions for serious offences, a fairly lengthy
    sentence, and a weak appeal, demonstrate that the immediate enforcement of the
    judgement below should be of paramount concern. Therefore, the public interest
    balance required by
Farinacci
favours immediate enforcement of the
    sentence rather than judicial interim release.

DISPOSITION

[24]

For
    these reasons, the applicant has not met his onus under s. 679(3) of the
Criminal
    Code
and the application is dismissed accordingly.

C. William Hourigan J.A.


