



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    that could identify the victim or a witness shall not be published in any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
    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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.

(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 OF APPEAL FOR ONTARIO

CITATION: R. v. Miller, 2019 ONCA 208

DATE: 20190314

DOCKET: M50039 (C66430)

Lauwers J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Miller

Applicant

Matthew Wolfson, for the applicant

Randy Schwartz, for the respondent

Heard: March 11, 2019

REASONS FOR DECISION

[1]

The applicant was convicted of sexual assault, and was sentenced to 6
    months imprisonment followed by 18 months probation. The applicant appeals
    his conviction.

[2]

The complainant, a 25-year-old male, drank during the evening with the
    applicant to the point of intoxication and vomiting, which led him to sleep in
    a bed provided by the applicant. The last paragraph of the trial judges
    reasons sets out her findings:

I find that Mr. Miller sexually
    assaulted [the complainant] on September 2, 2017 when he touched [the
    complainant] by putting his arm around him, by stroking his back, touching and
    performing oral sex on his penis while he slept and was unconscious during his
    sleep without his consent. Mr. Miller took no steps to ascertain [the
    complainants] consent at any time during the evening or when he initiated the
    sexual activity. Mr. Miller will be convicted of sexual assault.

[3]

I am satisfied that the applicant would surrender himself into custody
    in accordance with the terms of any bail order. The Crown does not argue that
    the applicants detention is necessary in the public interest. The only issue
    argued by the Crown was that the appeal has no merit.

[4]

Among the grounds of appeal are that the trial judge misapplied the law
    concerning reasonable steps in ascertaining consent and that she gave
    insufficient reasons for judgment in explaining her findings in light of the
    applicants evidence.

[5]

The applicants counsel argued several misapprehensions of evidence by
    the trial judge, which he argues, leads to the prospect that she did not
    properly assess the issue of consent on which the conviction turned.

[6]

I find that the appeal is not frivolous within the meaning of s. 679
    (3) (a) of the
Criminal Code
, R.S.C. 1985, c. C-46, recognizing the
    directions of the Supreme Court in
R. v. Oland
, 2017 SCC 17, [2017] 1
    S.C.R. 250, at para. 20.

[7]

Mr. Miller is entitled to an appeal, and one that will not be rendered
    moot by the flow of time, which is entirely possible given the short sentence.
    In the circumstances the application for bail pending appeal is allowed.

P. Lauwers J.A.


