



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    that could identify the complainant or a witness shall not be published in any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. C.R.A., 2017 ONCA 826

DATE: 20171030

DOCKET: M48353 (C63952)

Feldman J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

C.R.A.

Appellant (Applicant)

Ms. Gerri Wiebe, for the appellant

Ms. Rebecca Schwartz, for the respondent

Heard: October 18, 2017

REASONS FOR DECISION

A.

INTRODUCTION

[1]

The

appellant

seeks

bail

pending

appeal following his fourth conviction for sexual
    assault. He received a sentence of four years. The Crown opposes on the basis
    that his detention is necessary in the public interest and the grounds of
    appeal are frivolous.

B.

Section 679(3) of the Criminal Code

[2]

Section 679(3) of the
Criminal Code
sets out the circumstances
    where an appellant may be released and provides that:

(3) In the case of an appeal referred to in paragraph (1)(a) or
    (c), the judge of the court of appeal may order that the appellant be released
    pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for
    leave to appeal is not frivolous;

(b) he will surrender himself into
    custody in accordance with the terms of the order; and

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

[3]

The applicant seeking bail pending appeal bears the
    burden of establishing that each criterion is met on a balance of probabilities:
    see
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

C.

The strength of the grounds of appeal

[4]

The Crowns
    case turned on the credibility and reliability of the complainant. She was at a
    friends place with a number of other friends following a wedding reception.
    She awoke to find the appellant having intercourse with her. She immediately
    screamed for him to stop. DNA testing of her clothes determined that his semen
    was on her underwear. The appellant did not testify.

[5]

The sole issue
    at trial was consent. The complainants story contained a number of
    inconsistencies. Other witnesses who were present testified regarding
    utterances of both the complainant and of the appellant, including when he said
    that he hadnt done anything.

[6]

At trial, the
    defence argued in detail that the inconsistencies in the complainants evidence
    did not allow the court to be satisfied of the truth of her story beyond a
    reasonable doubt, and that the defence evidence did raise a reasonable doubt,
    applying the principles of
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[7]

The trial judge
    rejected all of these arguments. He addressed each inconsistency in detail and explained
    why he believed and accepted the evidence of the complainant. He also applied
W.(D.)
and took into account all the evidence that
    favoured the appellant.

[8]

The reasons
    spanned almost 38 pages and are detailed and thorough. Great deference is owed
    by this court to the findings of a trial judge, particularly on issues of which
    witnesses are believed and the weight to be given to the evidence presented. In
    my view, therefore, the grounds of appeal appear to be very weak.

D.

the public interest

[9]

The Crown
    opposes bail on the basis of the public interest (
Criminal
    Code
, s. 679(3)(c)), arguing that
    the appeal is without merit and pointing to the appellants three prior
    convictions for sexual assault, the serious nature of the offence and the
    lengthy penitentiary term imposed.

[10]

The Crown
    acknowledges that the appellant has been on pre-trial bail for a lengthy
    period.
However, a
t 36 years old, this is his fourth conviction for a
    sexual assault of an adult female whom he knew. Further, on sentencing, a
    psychological report suggested that his risk to reoffend in a sexual way was
    above average without treatment. In the presentence report, the appellant indicated
    that he was not interested in community supervision and would rather serve
    additional time in custody, although he apparently provided some context for
    this comment to the trial judge, explaining that the reporting requirements
    were onerous.

[11]

In considering
    the
balancing
between enforceability and reviewability, there is
    no precise formula and the required assessment is qualitative and contextual
    (see
Oland
,
    at para. 49).

[12]

At para. 50 of
Oland
, the Supreme Court stated that, where the applicant
    has been convicted of murder or some other very serious crime, the public
    interest in enforceability will be high and will often outweigh the
    reviewability interest, particularly where there are lingering public safety or
    flight concerns and/or the grounds of appeal appear to be weak.

[13]

In my view, in
    light of the weakness of the
grounds
of
    appeal, the seriousness of the offence, the significant sentence, and the
    available evidence regarding risk to reoffend, the appellant has not met his
    onus to show that his detention is not necessary in the public interest (
see
Oland
, at para. 19
).

E.

result

[14]

The application
    for release pending appeal is dismissed.

K. Feldman J.A.


