



WARNING

The Judge
    hearing this application 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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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.

6.

(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

7.

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

8.

(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 OF APPEAL FOR ONTARIO

CITATION: R. v. C.L., 2018 ONCA 470

DATE: 20180518

DOCKET: M49115 (C65283)

Trotter J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

C.L.

Applicant/Appellant

David J. DIntino, for the applicant

Susan Magotiaux, for the respondent

Heard: May 9, 2018

ENDORSEMENT

A.

Introduction

[1]

After a seven-day trial in the Ontario Court of Justice, the appellant
    was convicted of sexual assault (
Criminal Code
, s. 271) and being
    unlawfully in a dwelling house (s. 349(1)). He received a sentence of two years
    less a day imprisonment and two years of probation, along with other ancillary
    orders. The appellant seeks bail pending appeal. For the following reasons, the
    application is dismissed.

B.

the trial and sentencing

[2]

The victim of the offences was an acquaintance of the appellant. The
    appellant and his wife attended a birthday party, followed by an afterparty.
    The victim was at both of these events. She consumed a great deal of alcohol.

[3]

The victim testified that she had some memory of the birthday party, and
    very little memory of the afterparty. She had no memory of getting home. The
    victim testified that she woke up at her home with the accuseds hands down her
    pants. He told her to get on a couch and he penetrated her anally. The victim
    attempted to fight the appellant off. He pulled her to the bedroom and tried to
    vaginally penetrate her. She tried to stop him, and he rubbed his penis against
    her until he ejaculated.

[4]

The appellant testified that he and his wife drove the victim home from
    the afterparty. In his evidence in-chief, the appellant testified that his wife
    and another person helped the victim from the afterparty to the car. In cross-examination,
    the appellant admitted that the victim had to be carried to the car.

[5]

The appellant testified that the victim invited him and his wife into
    her home for more drinks. They stayed for a while before going home. When he
    got home, the appellant realized that he had left his phone at the victims home.
    He returned to get it. The appellant went into the victims home through a
    partly open door. The victim was half asleep on the couch. She woke up and
    insisted that the appellant stay with her. According to the appellant, the
    victim initiated sexual activity, culminating in consensual vaginal intercourse
    on the couch and in her bedroom.

[6]

It was the Crowns position at trial that the victim lacked the capacity
    to consent. A toxicologist testified about the victims state of sobriety. The
    Crown also introduced evidence of witnesses who were with the victim throughout
    the night. Photographs and a video clip showed the victim to be in an extreme
    state of intoxication, either unconscious or barely conscious.

[7]

The appellant testified that, when he returned to the victims home, she
    was not as intoxicated as she had been previously. The trial judge specifically
    rejected this evidence, and the appellants general version of events. He
    accepted the victims evidence and was satisfied of guilt beyond a reasonable
    doubt based on the victims incapacity to consent.

[8]

Because the appellant is Aboriginal, a Gladue Report was prepared for
    sentencing. This was in addition to a Pre-Sentence Report (PSR). As noted
    above, the trial judge sentenced the appellant to imprisonment for two years
    less a day.

C.

the bail pending appeal application

(1)

The Application Record and Bail Compliance

[9]

Before applying the criteria for bail pending appeal in s. 679(3) of the
Criminal Code
, it is necessary to address a problem that arose with
    the materials filed in support of this application.

[10]

While
    the appellant was on bail pending his trial, and later while pending his
    sentencing, he was charged on two separate occasions with breaching his
    recognizance, contrary to s. 145(3) of the
Criminal Code
. These
    charges remain outstanding. Both breaches related to a condition that specified
    where the appellant could live. The appellant did not mention these outstanding
    charges in his bail pending appeal affidavit. Neither did his proposed surety
    (his wife). Crown counsel uncovered this information. As a result, the
    appellant and his proposed surety swore new affidavits. A further proposed
    surety (the appellants mother) was added. In his new affidavit, the appellant
    gave some details about the new charges. However, he offered no explanation for
    the omission of this information in his first affidavit.

[11]

In
    essence, the breach allegations are as follows. The appellant was initially
    released to live with his father. In October of 2016, as a result of being
    found at the home he owns with his wife, he was charged with fail to comply.
    The appellant was released again and ordered to reside with his aunt. A
    compliance check at this address on March 28, 2018, revealed that he was not
    there. The appellants aunt told police that she had not seen him in roughly
    four months.

[12]

In
    both of his bail pending appeal affidavits, the appellant lists his residence
    as the home that he owns with his wife. In both sworn documents he asserts, I
    have not lived at any other address in the preceding three years.

[13]

The
    new criminal charges

should have been disclosed. Judges of this court
    rely heavily on the trustworthiness of affidavits sworn in support of bail
    pending appeal applications. They are expected to be both accurate and
    complete.

[14]

Crown
    counsel routinely conduct criminal history inquiries to ensure the accuracy of
    the information that is placed before judges deciding bail pending appeal
    applications. However, this does not relieve bail applicants and their proposed
    sureties of the obligation to be candid and comprehensive. In this case, had it
    not been for the Crowns diligence, I would have been misled in an important
    way. I stop short of concluding that there was a deliberate attempt to mislead
    me. However, in the absence of an explanation, the person who swears or affirms
    an affidavit must bear responsibility for its contents.

[15]

Outstanding
    criminal charges are important for bail purposes, especially those that point
    to bail compliance issues. In the pre-trial context, s. 518(1)(c)(ii) of the
Criminal
    Code
permits the prosecutor to lead evidence of outstanding charges. Depending
    on the circumstances, an individual charged with fresh offences while on bail
    may face a reverse onus at his or her bail hearing: see s. 515(6)(a)(i) and
R.
    v. Morales
, [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91. Charges under ss.
    145(2) to (5) always result in a reverse onus situation: s. 515(6)(c).

[16]

I
    appreciate that at this stage the appellant is presumed innocent of the two new
    charges. However, that does not detract from their relevance and importance to
    bail pending appeal. Dealing with a similar situation in
R. v. Lengelo
(4 October 2011), M40503/C54249
    (Ont. C.A.)
, Doherty J.A. said: It is difficult to think of anything
    that would be more relevant on a bail application than the existence of
    outstanding charges coupled with a failure to appear.

[17]

The
    new charges, combined with the appellants failure to mention them in his
    affidavits (not to mention his assertion that for several years he lived at an
    address contrary to his bail conditions at the time), undermine any faith I can
    place in the appellants promise in his affidavit that, I will obey any
    conditions placed upon me by this Court while I am in the community.

[18]

There
    is more. The appellant told the PSR author that he was regularly consuming alcohol
    with friends from work and that, in the weeks leading up to sentencing, he
    consumed cocaine. Again, this was contrary to his pre-trial bail conditions and
    the conditions of his most recent release just prior to sentencing. It does not
    inspire confidence about compliance with any bail pending appeal order that
    might be made.

(2)

The Public Interest

[19]

A
    more fundamental problem with this bail application resides in the application
    of the public interest criterion in s. 679(3)(c) of the
Criminal Code
.
    In my view, the balancing between the enforceability and reviewability
    interests inherent in this concept favours detention.

[20]

I
    am prepared to find that the appeal is not frivolous within the meaning of s.
    679(3)(a). I do so because that bar is widely recognized as being extremely low:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. It is
    another matter when it comes to sizing up the strength of the appeal for public
    interest purposes.

[21]

The
    materials filed fail to demonstrate that the grounds of appeal have sufficient strength
    to overcome the serious enforceability considerations present in this case.

[22]

The
    victim was attacked by a friend while she was in her own home. She was
    penetrated anally. At the time, she was so compromised by alcohol that she was
    incapable of consenting. The attack commenced while she was sleeping. When she
    woke up, she was unable to defend herself against the appellant.

[23]

The
    trial judge provided very thorough reasons. While the correctness and reasonableness
    of these reasons will ultimately be reviewed by a panel of this court, for bail
    purposes, they are very compelling. They reveal no obvious error.

[24]

The
    appellant argues that the trial judge gave insufficient weight to crucial
    pieces of evidence that should have impacted on the victims credibility. He
    points to the fact that the trial judge failed to make more of the victims
    lack of explanation for how cocaine was detected in her blood. The trial judge
    addressed this factor in his assessment of the victims credibility. Needless
    to say, deference is at its highest when it comes to a trial judges
    credibility findings.

[25]

Similarly,
    the appellant argues that the trial judge erred in the application of
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742. There appears to be little if any merit to
    this assertion. The application of
W.(D.)
is part of the daily diet of
    criminal trial judges. On the basis of the materials before me, the trial
    judges reasons reflect a proper appreciation of these principles.

[26]

The
    appellant alleges error in the trial judges failure to consider the defence of
    mistaken belief in consent. Applying
R. v. Davis
, [1999] 3 S.C.R. 759,
    at paras. 82-85, the trial judge concluded that the competing versions of
    events of the victim and the appellant rendered the defence unavailable.
    According to the appellant, the victim was a willing participant in a
    consensual sexual encounter that
she

initiated. The victim said
    she was attacked while she was passed out. On the material before me, I see no
    error in the trial judges conclusion that there was no air of reality to the
    defence.

[27]

Lastly,
    the appellant argues that the trial judge erred in finding that the victim was
    too intoxicated to consent. The trial judge provided careful reasons for his
    findings on this issue and his application of s. 273.1(2)(b) of the
Criminal
    Code
, which he found vitiated consent in the circumstances. There was
    solid grounding in the evidence to support this conclusion, including the video
    and photographic evidence of the victim in her compromised state earlier in the
    evening.

[28]

The
    appellants release is not in the public interest.

D.

conclusion

[29]

The
    application for bail pending appeal is dismissed.

Gary T. Trotter J.A.


