



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. G.J.R., 2021 ONCA 926

DATE: 20211222

DOCKET: M53007 (C69044)

Zarnett
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

G.J.R.

Applicant/Appellant

Chris Rudnicki, for the applicant

Justin Reid, for the respondent

Heard: December 10, 2021 by video conference

ENDORSEMENT

INTRODUCTION

[1]

The applicants 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 applicants 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
    Courts 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
    complainants 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
    complainants 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 applicants 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
    applicants 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 applicants
    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
    courts reasons and directed appellate courts to resist the temptation to
    finely parse a judges 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 judges 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 complainants 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 judges
    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 applicants 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.


