



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Rose, 2019 ONCA 215

DATE: 20190318

DOCKET: M50187 (C66594)

Lauwers J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Rose

Applicant

Cate Martell, for the applicant

Rebecca De Filippis, for the respondent

Heard: March 13, 2019

REASONS FOR DECISION

[1]

The applicant was convicted of one count of sexual assault on August 29,
    2018 by Corbett J. of the Ontario Superior Court. He was sentenced on March 13,
    2019 to 21 months imprisonment followed by 2 years of probation. The applicant
    wishes to appeal his conviction and is seeking bail.

[2]

The trial judges reasons are not yet available. Counsels notes have
    been provided as a substitute and the parties appear to agree upon their accuracy.

[3]

It was not disputed at trial that the applicant had sex with the
    complainant. The only issue was whether she had consented. The trial judge
    concluded that she had not consented.

[4]

The applicant was out on bail for a long period of time pending trial. I
    am satisfied that he would surrender himself into custody in accordance with
    the terms of any bail order. The Crown argues that the applicants detention is
    necessary in the public interest and adds that the appeal has no merit.

[5]

The applicants essential argument is that, in reaching his credibility
    findings,  the trial judge relied far too heavily on demeanour evidence,
    contrary to the Supreme Courts decision in
R. v. J.A
.
A.
,
2011 SCC 17, [2011] 1 S.C.R. 628, at para. 14. There the court
    found that it was unsafe to uphold the conviction for sexual assault, which seemed
    to be based largely on the complainants emotional state just after the event.

[6]

The applicant says that in this case the trial judge also relied heavily
    on a videotape of the complainants demeanour just after the event. According
    to the record of his oral reasons, the trial judge noted that the problems with
    the complainants evidence were numerous and serious enough that it would be
    unsafe to convict solely on the basis of her
viva voce
evidence, but that
    corroboration by video satisfied him beyond a reasonable doubt.

[7]

The video depicted the complainants demeanour as she waited in the
    apartment lobby for her ride to arrive, over about one-half hour. The applicant
    argues that the trial judges interpretation of the video is simply
    unreasonable, particularly in light of the Supreme Courts decision in
R.
    v. J.A
.
A.

[8]

The applicant also argues that the trial judge failed to adequately
    account in his reasons for the problems with the complainants evidence, in
    particular her lie to the police investigator, and her lie at the preliminary
    inquiry. The applicant says that the trial judge did not attend so much to the
    complainants actual evidence as to speculation on what the reasons could be
    for the inconsistencies in her evidence.

[9]

Although Crown counsel pointed to the public interest as supporting a
    refusal of bail, her argument largely addressed the merits. Based upon the
    limited record that I currently have available to me, it cannot be said that
    the grounds of appeal are frivolous, particularly in a case that turned so
    heavily upon credibility findings. While the predicate offence is an obviously
    serious one, based upon the applicants history of bail compliance, and the
    surety plan put forward, I am satisfied that he will comply with all terms of
    release. Standing on its own, the nature of the offence does not justify
    detention:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20.

[10]

If bail were to be denied, the applicant would likely serve a
    significant portion of his sentence, if not the custodial period of his
    sentence before release, before the appeal was heard and determined in the
    ordinary course. In the circumstances the application for bail pending appeal
    is allowed on the conditions set out in the draft order approved by the parties
    and filed with the court.

P. Lauwers J.A
.


