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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. I.A.D., 2021 ONCA 110

DATE: 20210222

DOCKET: C67840

Fairburn A.C.J.O., Juriansz and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

I.A.D.

Respondent

Dena Bonnet, for the appellant

Sean May, for the respondent

Heard: February 9, 2021 by
    video conference

On appeal from the acquittals entered by
    Justice Julie Bourgeois of the Ontario Court of Justice on December 4, 2019.

REASONS FOR DECISION

Overview

[1]

The respondent was charged with one count each of
    sexual assault and sexual interference. There were two main questions at trial:
    (a) did the appellant prove beyond a reasonable doubt that the complainant did
    not consent to the sexual activity; and, if so, (b) did the respondent have an
    honest but mistaken belief in communicated consent?

[2]

The trial judge answered the first question in
    the affirmative, concluding that the complainant did not consent to the sexual
    activity in question.

[3]

The trial judge then went on to consider the
    second question, whether the respondent had an honest but mistaken belief in
    communicated consent at the time that the sexual activity took place. On this
    point, the trial judge concluded that she could not reject his defence of
    honest but mistaken belief in communicated consent and, therefore, entered
    acquittals on both counts.

[4]

The appellant appeals to this court on the basis
    that the trial judge erred in her analytical approach to the defence of honest
    but mistaken belief in communicated consent. Specifically, the appellant argues
    that the trial judge failed to consider a statutory prerequisite to the
    availability of that defence, which is the need for the respondent to have
    taken reasonable steps in ascertaining the complainants consent:
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 273.2(b). The absence of any reasoning on
    this point is said to lead to inadequate reasons that do not give full effect
    to the relevant provisions of the
Criminal Code
: see
R. v. Gagnon
,
    2018 CMAC 1, 427 D.L.R. (4th) 430, at paras. 36, 44-45, affd 2018 SCC 41,
[2018] 3 S.C.R. 3
. Hence, such a failure to
    consider s. 273.2(b) of the
Criminal Code

is a reversible error.
    We agree. Therefore, we allow the appeal, set aside the acquittals, and order a
    new trial on both counts.

Brief Factual Background

[5]

The complainant was 15 and the respondent was 18
    at the time of the alleged offences. They knew one another because the
    complainant would sometimes buy cannabis from the respondent.

[6]

The complainant appears to have been
    experiencing difficult life circumstances in and around the time of the alleged
    offences. She had moved away from her parental home and was living at a
    friends place in the months preceding the alleged offences. One evening, she
    decided to go out with the respondent and two of his friends. The police
    stopped the group at around 2:47 a.m. The complainant testified that she was
    asked by the respondent to take a Xanax pill so that the police would not catch
    the respondent in possession of the pill. As it was dark at the time, the
    complainant was unsure as to whether it was a full-sized pill. At this time, the
    police arrested one of the friends for breach of probation.

[7]

Eventually, the complainant and the respondent
    ended up at the home of the remaining friend. The three individuals were all in
    the basement of that home together. The friend soon fell asleep in his bed.
    While the complainant and respondent were initially on two separate couches, the
    respondent motioned to her to come to the larger couch where he was laying down
    with the only blanket in the room. She was cold and decided to accompany him on
    that couch.

[8]

From here, the complainants and the
    respondents evidence diverged at trial. The complainant acknowledged that she initially
    moved close to him and rubbed against him. He was aroused. She said that the
    respondent started to digitally penetrate her. He pulled her pants down. She
    attempted to get off of the couch, but she tripped. The respondent pulled her
    back onto the couch, held her closer to him, and then, as she put it, He
    started having sex with me and I said no. When she realized he was not going
    to stop, she said that we should put a condom on and he told me that that was
    childish of me, and then he continued until he was done and then he rolled over
    and that was that. The complainant said that the respondent withdrew his penis
    just prior to ejaculation, leaving ejaculate on and around her vagina.

[9]

The respondent testified that it was the
    complainant who initiated the sexual contact. According to the respondent, he
    got aroused when the complainant started rubbing against him. He testified that
    he asked her if she wanted to fuck, and she said yes, do you have a condom?
    His evidence on this point was as follows:

I asked her if she wanted to fuck, and she
    says yes, do you have a condom? And so I said no, those are for children. I was
    trying to blow off the fact that I didnt really have a condom on me and we
    were  so just the bum grinding still keeps happening and I end up start
    pulling down the right side of her leggings, and she ends up lifting the left
    side of her hip to get down the left side of her pants with me to help.

[S]he had to sit up and like perk her hip up,
    and then pull down the left side to help me get it down. They were leggings, so
    they were quite tight. And  yeah so just after that we had sex, it didnt last
    very long[.]

[10]

When asked what his understanding was with
    respect to whether the complainant was consenting to this sexual activity, the
    respondent answered: For the most part, I knew she said yes. However, she
    never made it, she never said no, she never showed me that she didnt want any
    sex or anything, she said yes and continued giving me signs that like there was
     this is okay. On the issue of the condom, the respondent acknowledged the
    following later in his evidence:

[S]he never told me no were not having sex if
    you dont have a condom. She said yes  yes do you have a condom, I said no,
    those are for children and we continued to fool around on the couch.

The Trial Judges Failure to Address
    Reasonable Steps

[11]

The trial judge correctly resolved the issue of
    the absence of the complainants consent for the purposes of the
actus reus

of the offences. Here, the trial judge adverted to the need to focus upon
    the complainants subjective state of mind. Ultimately, the trial judge
    concluded that she was satisfied beyond a reasonable doubt that the complainant
    did not consent to the sexual activity.

[12]

The trial judge then moved on to consider the only
    other triable issue: This leaves the final question, is there an air of
    reality to the defence of honest but mistaken belief in communicated consent,
    and if so, does it raise a reasonable doubt? Unfortunately, the trial judges
    reasons are wanting in relation to this issue.

[13]

Section 273.2 of the
Criminal Code
places important limits on the defence of honest but mistaken belief in
    communicated consent, including s. 273.2(b), which states
[
i
]
t is not a defence where the accused did not take reasonable
    steps, in the circumstances known to the accused at the time, to ascertain that
    the complainant was consenting. As Moldaver J. held in
R. v. Barton
,

2019 SCC 33, 376 C.C.C. (3d) 1, at para. 104, s. 273.2(b) imposes a
precondition
to the defence of honest but mistaken
    belief in communicated consent  no reasonable steps, no defence (emphasis
    added).

[14]

There are both objective and subjective
    dimensions to this defence. The accused must take steps that are objectively
    reasonable in the circumstances, and the reasonableness of the steps must be
    considered in light of the circumstances known to the accused at the time:
Barton
,

at para. 104.

[15]

We agree with the appellant that this case required
    a clear inquiry into the reasonable steps potentially taken by the respondent.
    This is particularly true given both the complainant and respondents clear
    evidence that she asked for a condom, yet the sexual intercourse ensued without
    one. Even taking the respondents evidence at its highest, this is a
    circumstance that was known to him at the time that the intercourse commenced,
    yet he did not inquire of the complainant whether she wished to proceed without
    a condom. Instead, he chose to rely upon what he perceived from the
    complainants actions, as described by him: the continued physical grinding by
    the complainant; the movement of her hip; and her assistance with pulling down
    one side of her pants.

[16]

The trial judges reasons are entirely silent as
    to whether the respondent took any objectively reasonable steps in light of the
    circumstances known to him at the time. Instead, the trial judge reviewed the
    evidence, made conclusions about what she could not reject, and then satisfied
    herself that it was impossible to reject the defence of honest but mistaken
    belief in communicated consent. The trial judges reasoning can be summarized
    as follows:

(i)  She could not reject the respondents evidence that he asked
    the complainant if she wanted to fuck or the complainants evidence that she
    asked if he had a condom.

(ii)  She was not convinced by his evidence that [the complainant]
    actually said the word yes, but could not reject the respondents evidence
    that when he tried to brush off the fact that he did not have a condom, the
    complainant continued to rub against his penis and perked her hip up and
    pulled the right side of her pants.

[17]

On this basis, the trial judge concluded:

It is impossible to reject his evidence that
    he honestly but mistakenly believed she was communicating her consent by her
    actions of rubbing against his penis, and then assisting him in the removal of
    her pants. I certainly accept his evidence that this only lasted a minute or
    two, and that it was bad sex.

[I]n the end, given the totality of the
    evidence, one cannot reject his defence of honest but mistaken belief in
    communicated consent.

[18]

We cannot accept the respondents position that
    the reasonable steps inquiry is implicit in the trial judges reasoning set out
    above. To the contrary, the reasoning seems to focus exclusively upon why the
    respondent could be said to have honestly but mistakenly believed the
    complainant to be consenting. In our view, the trial judges reasons do not
    explicitly or implicitly address the prerequisite of reasonable steps.

[19]

The reasonable steps inquiry is a fact-specific
    one. Clearly, those steps cannot arise from the complainants silence,
    passivity, or ambiguous conduct:
R. v. Ewanchuk
,
[1999] 1 S.C.R. 330,

at para. 51;
Barton
,

at para. 107. Whether the
    complainant perked her hip or not, or helped with pulling down one side of
    her pants or not, is at best ambiguous conduct, particularly ambiguous as to
    what the complainant may or may not have been consenting to. This is especially
    true given the trial judges finding of fact that the complainant asked if he
    had a condom. In the circumstances of this case, failing to specifically address
    the prerequisite of reasonable steps, constitutes a reversible error.

The Remedy

[20]

The appellant asks us to allow the appeal and,
    pursuant to s. 686(4)(b)(ii) of the
Criminal Code
, enter convictions
    on both counts. While we agree that the acquittals must be set aside, we
    decline to enter convictions.

[21]

Although the appellants position has much
    force, the trial judges reasons are insufficiently clear to permit this court
    to confidently enter convictions. Among other issues, the reasons for judgment
    lack clarity on factual findings and are devoid of credibility assessments. For
    instance, it appears that the trial judge concluded that the
actus reus

of the sexual assault was made out, not because she believed the
    complainant, but because of the respondents evidence, where he testified that
    for the most part he knew she said yes. Indeed, nowhere in the reasons does
    the trial judge articulate credibility findings with respect to either the complainant
    or respondent.

[22]

The combined absence of clear credibility and
    factual findings deprives this court of the type of clarity required when
    determining whether the respondent is, in fact, guilty. This task is better
    left to a new trial judge, who will be best positioned to make all requisite
    credibility and factual findings.

Disposition

[23]

The appeal is allowed, the acquittals are set
    aside, and a new trial is ordered on both counts.

Fairburn
    A.C.J.O.

R.G.
    Juriansz J.A.

Grant
    Huscroft J.A.


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. Ignacio, 2021 ONCA 69

DATE: 20210203

DOCKET: C67188

Pepall, van Rensburg and Brown
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Ignacio

Appellant

Michael Dineen, for the appellant

Jeffrey Wyngaarden, for the respondent

Heard: October 20, 2020 by video conference

On appeal from the conviction entered on
    March 7, 2019 by Justice P. Andras Schreck of the Superior Court of Justice,
    sitting without a jury, with reasons reported at 2019 ONSC 1511.

Pepall J.A.
:

I.

Introduction

[1]

The appellant, Kenneth Ignacio, appeals from his conviction for sexual
    assault. He raises one ground of appeal. He argues that the trial judge erred
    in finding that the complainant had no motive to fabricate and in considering
    this as a factor in assessing her credibility.

[2]

The appellant says that the trial judge found a proven absence of motive
    to fabricate, even though the evidence did not support such a finding. At most,
    the trial judge could have found an absence of evidence of motive to fabricate.
    The trial judge then wrongly used his finding that the complainant had no
    motive to fabricate to enhance her credibility.

[3]

For the reasons that follow, I would dismiss the appeal. Placed in
    context, the trial judge rejected the motive to fabricate argument advanced by
    the appellant. He was entitled to consider the absence of evidence of a motive
    to fabricate as one of many factors in his credibility analysis.

II.       Facts

[4]

The appellant and the complainant, who are both in their early twenties,
    met at a concert at the end of April 2017. Over the next few days, they
    exchanged text messages. A few days later, they both attended a barbecue at the
    home of the appellants cousins. The complainant drove in her car and arrived
    around 11 p.m. The appellant was already there. Both the appellant and the
    complainant agreed that he was very intoxicated. When it was time to leave the barbeque
    about an hour and a half later, the complainant offered to drive the appellant
    home. She had consumed very little alcohol and was sober. The appellant
    accepted the offer of a lift.

[5]

They kissed in the car as the complainant was driving the appellant
    home. She testified that he insisted on giving her a kiss each time they
    stopped at a red light and that she agreed to do so the third time they
    stopped. The appellant testified that they kissed at each red light.

[6]

She drove onto Highway 401 and then they agreed to exit and park the
    car. According to the complainant, he asked her to pull over so they could talk
    and he could sober up. According to the appellant, he had jokingly mentioned
    that kissing in the car might result in an accident and she then told him that
    she knew of a place they could go. She pulled off the highway and parked in a
    nearby parking lot.

[7]

The appellant got in the back seat and invited the complainant to join
    him. The complainant testified that she agreed to do so but told him that she
    would only kiss him and do nothing else and she wanted him to understand that
    she would not have sex with him. He denied that she had said anything about not
    having sex with him before getting into the back seat.

[8]

They began kissing in the back seat. The appellant put his hand up her
    shirt and under her bra and started to unbutton her pants. According to the
    complainant, she told him to stop, but he said that he would make her feel good
    and then took off her pants. He said she arched her back to facilitate their
    removal but she said he did so without any assistance from her.

[9]

He performed oral sex on the complainant for about three minutes,
    according to the complainant. He then pulled his pants down and exposed his
    penis. She testified that he said, Are you really not going to, which she
    took to mean he wished her to perform fellatio on him, which she did.

[10]

The
    appellant told the complainant that the fellatio was not working for him, and
    that he wanted to have sex.

[11]

The
    complainants and the appellants accounts then diverged.

[12]

According
    to the complainant, she told him that they were not going to have sex and that
    things had already gone too far, saying, I am not having sex with you, not
    now, not tonight, not ever. She testified that the appellant nonetheless
    forcefully penetrated her vagina without her consent. She told the appellant to
    stop and hit him on the chest, but he grabbed her hands and pushed them down
    beside her. After he had finished, the complainant moved to the front seat. She
    testified that he sat next to her and said, S., you didnt really want that. I
    raped you.

[13]

According
    to the appellant, after the complainant performed fellatio on him, he said,
    Can we just like do it? (or words to that effect), meaning he wished to have
    sexual intercourse, and she responded by saying, Dont ejaculate inside me, or,
    Yes, but just dont ejaculate. He agreed not to but unintentionally did so. He
    denied that she ever said anything to indicate that she did not consent to
    sexual intercourse. He said she freaked out and was horrified when he told
    her he had ejaculated inside her.

[14]

She
    searched on her phone for a pharmacy so that she could purchase a contraceptive
    pill. According to the complainant, the appellant insisted on accompanying her,
    whereas he said he accompanied her at her request. The complainant took the
    pill and then dropped the appellant off at an intersection. He said that before
    leaving the car, he gave her a hug and said that he was sorry for ejaculating
    inside her.

[15]

The
    complainant called a friend and told her what happened but not the details. She
    asked her friend to stay on the phone until she got home. The complainants
    phone records show that she made a 16-minute call at 4:06 a.m. on May 1, 2017.

[16]

The
    next day, the complainant went to her place of employment and then to the
    hospital with a friend from work for a rape kit examination. She subsequently
    contacted the police. Her friend from work testified that when the complainant arrived
    at work, she looked disheveled, had obviously been crying, and was pale. On the
    way to the hospital, she was upset, crying, and shaky. She would calm down
    from time to time only to start crying again.

[17]

At
    2:43 p.m. on May 1, 2017, the appellant sent a text message to the complainant
    saying, Hey just woke up. How are you? I hope everythings fine with you. It
    was followed by another text message saying, Im truly sorry for last night. He
    testified that he was apologizing for having ejaculated inside of the
    complainant. The complainant did not respond to his text messages.

[18]

In
    sum, at trial, the complainant testified that the sexual intercourse was not
    consensual and the appellant testified that it was.

III.      Trial Judges
    Decision

[19]

The
    trial judge rejected the appellants evidence and held that it did not raise a
    reasonable doubt. The central difficulty with the appellants evidence was his
    intoxication at the time of the events. His intoxication affected both his
    reliability and his credibility. The appellant himself had testified that he
    was binge drinking to the point of blacking out and only recalled bits and
    pieces of the evening. This affected his reliability because intoxication
    affects ones ability to perceive and recall events.

[20]

The
    intoxication also affected the credibility of the appellants evidence. The
    trial judge found that the appellants claim to be able to recall every detail
    of his sexual interaction with the complainant was inconsistent with his high
    degree of intoxication. The trial judge found that the appellant was willing to
    fill in blanks in his testimony when necessary.

[21]

The
    trial judge accepted the complainants evidence. He found the complainants
    evidence was plausible and consistent and she was not prone to
    exaggeration. She candidly admitted that some of the sexual activity, such as
    the oral sex, was consensual. He also considered the evidence of the
    complainants work friend on the complainants emotional state the day after
    the alleged sexual assault and concluded that it supported the complainants
    testimony.

[22]

The
    trial judge rejected the defences allegation that the complainant had a motive
    to fabricate. He commented on motive in two paragraphs, the first of which is
    the contentious one for the purpose of this appeal and is placed under the
    heading [The Complainants] Evidence:

I note as well that [the complainant] had no motive to falsely
    accuse Mr. Ignacio of a serious crime. To the contrary, it is clear from the
    evidence that prior to the sexual activity, she liked Mr. Ignacio and hoped to
    get to know him better. In making this observation, I am mindful that the
    burden of proof is on the Crown and that there is therefore no obligation on an
    accused to demonstrate why a witness would testify falsely:
R. v. Krack
(1990), 56 C.C.C. (3d) 555 (Ont. C.A.), at
    pp. 561-562. Nonetheless, this is a factor to consider:
R.
    v. Jackson
, [1995] O.J. No. 2471 (C.A.), at para. 4;
R. v. Plews
, 2010 ONSC 5653, at para. 335. I recognize
    that the defence has alleged a motive to fabricate that is related to [the
    complainants] fear of having become pregnant, an issue I will address later in
    these reasons.

[23]

Two
    paragraphs later, under the heading The Alleged Motive to Fabricate, the
    trial judge wrote the following:

It was submitted on behalf of Mr. Ignacio that [the
    complainant] had a motive to fabricate a sexual assault because she was afraid
    that she had become pregnant as a result of Mr. Ignacio ejaculating inside her
    and needed to explain any pregnancy to her parents in such a way as to absolve
    herself of having any responsibility for the situation. It was also submitted
    that this fear of pregnancy explains why [the complainant] was so upset the
    following day. In my view, the problem with this theory is that [the
    complainant] had the wherewithal to obtain a morning after pill immediately
    after Mr. Ignacio ejaculated inside her. She took the pill and there is no
    suggestion that she had any reason to think that it would not work. She had no
    real reason to believe that she was pregnant. Even if she had such a fear, it
    is difficult to understand why she would subject herself to a rape kit
    examination the following day. If she was worried about being pregnant, surely
    undergoing a pregnancy test would have made far more sense.

[24]

The
    trial judge accepted the complainants evidence and found beyond a reasonable
    doubt that the appellant sexually assaulted her.

IV.     Parties
    Positions

[25]

The
    appellant submits that the trial judge erred in finding that the complainant
    had no motive to fabricate. The evidence was not capable of supporting such a
    conclusion and the finding could not properly be used to infer that the
    complainant was telling the truth. Evidence of a prior good relationship
    between the appellant and the complainant is not sufficient to justify a
    positive finding that the complainant had no motive to fabricate and cannot be
    used to infer that the complainant was telling the truth.

[26]

The
    appellant submits that the trial judges error affected the result. The
    appellants evidence was not inherently implausible, and the trial judge might
    have had a reasonable doubt had he not relied on the supposed proven lack of
    motive to fabricate in accepting the complainants evidence. The appellant argues
    that the structure of the trial judges reasons also supports his improper
    reliance on absence of motive to fabricate.

[27]

The
    Crown submits that the trial judges reasons should not be read as containing
    an affirmative finding that there was no motive to fabricate. Read in context,
    the trial judges comments were responsive to the arguments surrounding motive
    made by the defence. The trial judge did not reverse the onus of proof or
    improperly infer that the complainant was telling the truth because there was
    no apparent motive for her to lie.

[28]

Even
    if the trial judge erred in conflating the absence of evidence of motive to
    fabricate with a finding of no motive to fabricate, the Crown argues that the
    error did not cause a miscarriage of justice and the appeal should be dismissed
    based on the curative
proviso
.

V.      Analysis

[29]

The
    distinction between absence of evidence of a motive to fabricate and absence of
    a motive to fabricate is not easily digestible:
R. v.
    John
, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 97,
per
Watt J.A. As Watt J.A. explained in
John
, at
    para. 93:

The former is not the equivalent of the latter, nor is the
    latter the same as the former:
R. v. L. (L.)
, 2009
    ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not
    logically follow that, because a witness has no
apparent
reason to lie, the witness must be telling
    the truth:
R. v B. (R.W.)
(1993), 24 B.C.A.C.
    1, at para. 28. The fact that a witness has no
apparent
motive to fabricate does not mean that the
    witness has
no
motive to
    fabricate:
R. v. L. (L.)
, at para. 44. [Emphasis
    added.]

[30]

In
    addressing this appeal, there are in essence two questions that require a
    response:

(i)     Did
    the trial judge find that the Crown had proven that the complainant had
no
motive to fabricate or that there was, as the Crown asserts, simply an
absence
    of evidence
of any motive to fabricate?

(ii)     If
    the evidence fell short of establishing that the complainant had
no
motive to fabricate and the trial judge was simply adverting to an
absence
    of evidence
of any motive to fabricate, was he entitled to consider that
    absence in his analysis of the complainants credibility?

(a)

Proof of no motive to fabricate

[31]

The
    first part of the appellants argument is that the trial judge made a positive
    finding that the complainant had no motive to fabricate when the evidence did
    not permit him to do so. While the cases leave open the possibility that the
    Crown can prove that a complainant had no motive to fabricate, they set a high
    bar for proving no motive to fabricate. This is because motives can remain
    hidden or there may be no motive at all:
R. v. Bartholomew
,
    2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 22.

[32]

If
    the Crown has proven that the complainant had no motive to fabricate, the Crown
    has a powerful platform to assert that the complainant must be telling the
    truth:
Bartholomew
, at para. 21. However, in
    most cases, the trier of fact will be faced instead with an absence of evidence
    of any motive to fabricate on the part of the complainant.

[33]

In
    this case, had the trial judge found that the Crown had proven no motive to
    fabricate, such a finding would have been in error. The only evidence upon
    which the trial judge could make this finding was the evidence that the
    complainant and the appellant had a prior good relationship. Evidence of a good
    relationship between the complainant and the accused, standing alone, is
    insufficient to establish that the complainant had no motive to fabricate:
Bartholomew
, at para. 25; and
L.L.
,
    at para. 45.

[34]

However,
    I am not persuaded that the trial judge found that the Crown had proven no
    motive to fabricate. If that had been the case, as discussed, the Crown would
    have had a powerful platform to assert that the complainant was telling the
    truth. One would expect such a finding to play a much more prominent role in
    the trial judges analysis of credibility than it did. Instead, it simply
    amounted to an observation and a factor to consider, to use the trial
    judges words.

[35]

Moreover,
    the trial judge was required to consider motive to fabricate due to the defence
    allegation that the complainant had a motive to fabricate. In the context of
    the defence submissions, he was entitled to look to the evidence for any
    suggestion of motive and conclude that there was no such evidence. The trial
    judges reference to the state of the relationship between the complainant and the
    appellant does not reflect a finding that the complainant had
no
motive
    to fabricate. It is equally consistent with a finding that there was
no
    evidence
of any motive to fabricate.

[36]

In
    my view, the language the trial judge used and the context are much more reflective
    of a finding that there was an absence of
evidence
of any motive to
    fabricate. The trial judge did not find that the Crown had proven that the
    complainant had
no
motive
    to fabricate. He effectively found that there was an
absence of evidence
of any motive to fabricate, and he
    treated this finding as one factor in the credibility analysis.

(b)

Absence of evidence of motive to fabricate may be considered in
    credibility analysis

[37]

This
    does not end the matter, however. The question then becomes: was the trial
    judge entitled to treat the
absence of
    evidence
of motive to fabricate as a consideration in assessing
    the complainants credibility?

[38]

Both
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.)
    and
L.L.

say
    that the absence of evidence of motive may be considered as a factor in
    assessing credibility.

[39]

In

Batte
,
the appellant was
    convicted of sexual offences in relation to two complainants. Among other
    things, the appellant argued that the trial judge erred in instructing the jury
    that they could ask themselves why the complainants would have fabricated the
    allegations and subjected themselves to the trial process. At trial, the
    defence had argued that the complainants hated the appellant, and their hatred
    motivated them to fabricate the allegations: at para. 119.

[40]

Doherty
    J.A. confirmed that juries are entitled to consider whether there is evidence
    of a motive to fabricate, and he identified problems for trial judges to avoid
    in instructing on this issue, writing, at paras. 120-121:

It is
    difficult to think of a factor which, as a matter of common sense and life
    experience, would be more germane to a witness credibility than the existence
    of a motive to fabricate evidence. Similarly, the absence of any reason to make
    a false allegation is a factor which juries, using their common sense, will and
    should consider in assessing a witness credibility
.

What must be avoided in instructing a jury is any suggestion
    that the accused has an onus to demonstrate that the complainant has a motive
    to fabricate evidence, that the absence of a demonstrated motive to fabricate
    necessarily means that there was no motive or, finally, that the absence of a
    motive to fabricate conclusively establishes that a witness is telling the
    truth.
The presence or absence
    of a motive to fabricate is only one factor to be considered in assessing
    credibility
.
[Footnote omitted; emphasis added.]

[41]

Doherty
    J.A. held that the trial judge had not erred in his instruction to the jury
    because, looking at the charge as a whole, the jury would have understood that
    in assessing the complainants credibility, they were required to consider many
    factors, and not only the issue of motive: at para. 125. It would have been
    preferable, however, for the trial judge to have reminded the jury that
    motives sometimes remain hidden and that the absence of a motive to fabricate
    evidence was not determinative of the truth of the complainants evidence: at
    para. 125.

[42]

In
L.L.
, a 2009 decision of this court, the appellant was
    convicted of incest following a jury trial. The trial Crown had asked a series
    of improper questions of the appellants son relating to the complainants
    motive to fabricate, and in closing submissions, relied heavily on the theory
    that the complainant had
no
motive to fabricate.

[43]

This
    court allowed the appeal. The Crowns closing submissions suggested that the
    Crown had proven a lack of motive to fabricate when the evidence was incapable
    of supporting such a conclusion. The Crown also created a risk that the jury
    would leap to the conclusion that the complainant must be telling the truth if
    there was no demonstrated motive for her to lie.

[44]

In
    outlining what the trial judge ought to have told the jury, Simmons J.A. did
    not say that the trial judge should have told the jury they could not consider
    the absence of any apparent motive to fabricate. On the contrary, she said that
    the trial judge should have told the jury that they
could

consider
    it, but only as one factor among many: at paras. 19, 53. See also,
R. v. M.B.
, 2011 ONCA 76, 267 C.C.C. (3d) 72.

[45]

The
    appellant relies on
R. v. Sanchez
, 2017 ONCA
    994 and
Bartholomew

in
    support of his position that
absence of
    evidence
of motive to fabricate is an improper consideration in a
    credibility analysis. He does not suggest that
Bartholomew

and
Sanchez
have
    overruled
Batte

and
L.L.
Rather, he says that these more recent
    decisions have clarified the proper treatment of the
absence of evidence
of motive to fabricate, which is
    that it should not be considered as anything more than a neutral factor.

[46]

I am
    not persuaded that
Sanchez
and
Bartholomew
stand for the proposition advanced by the
    appellant, which would arguably be inconsistent with
Batte
and
L.L.

[47]

In
Sanchez
,
Nordheimer
    J.A. allowed the appeal of convictions for historical sexual offences and
    accepted that the trial judge made multiple errors in assessing credibility,
    one of which was the trial judges reasoning on motive to lie. However, at
    para. 30, he observed, that individually none of the failings I have
    identified might prove fatal to the trial judges credibility findings. While
    he did note, at para. 25, that the absence of a proven motive to fabricate is
    not particularly probative of a witnesss credibility, he did not prohibit
    trial judges from considering the
absence of evidence
of motive to
    fabricate. Rather, he commented that this is an unreliable factor, and it
    should not be used as a
foundation
to enhance the witness credibility
    (emphasis added). I understand this statement as a caution against placing an
    improper emphasis on the absence of evidence of motive to fabricate. This is
    consistent with what this court said in
Batte
and
L.L.
that this is only one factor among
    many.

[48]

To
    this I would add Nordheimer J.A.s most recent statement in
R. v. W.R.
, 2020 ONCA 813, at para. 18:

I begin this issue by noting that there is a difference in law
    between an absence of evidence of a motive to fabricate (that is, no evidence
    either way) and a proven absence of a motive to fabricate (that is evidence
    that establishes that no motive existed). The former is an element that may be
    considered in assessing the credibility of a witness, but it is only one
    element. On the other hand, the latter may be a compelling reason to conclude
    that the witness is telling the truth.

[49]

In
Bartholomew
, this court allowed the appeal because the
    trial judge erred in concluding that there was a proved absence of motive. This
    conclusion impacted the trial judges assessment of the complainants
    credibility, which was a central issue in the case: at para. 9.

[50]

Trotter
    J.A. went on to explain that the evidence in
Bartholomew
was not capable of supporting the conclusion that the complainant had no motive
    to fabricate: at paras. 24-26. The evidence of a good relationship between the
    complainant and the appellant was not capable of proving that the complainant
    had no motive to fabricate; it could do no more than support the conclusion of
    an absence of evidence of a proved motive: at para. 25. This state of affairs
    was not capable of enhancing the complainants credibility, as the trial judge
    did. At best,
it was a
    neutral factor
 (emphasis added): at para. 25.

[51]

As I
    read
Bartholomew
, Trotter J.A. did not go so
    far as to say that the absence of evidence of motive to fabricate will always
    be a neutral factor in the credibility analysis. He did not say so explicitly
    in his summary of the law at paras. 20-23, although he did caution trial judges
    against moving from an apparent lack of motive to the conclusion that the
    complainant must be telling the truth: at para. 22. His comment at para. 25
    that the evidence of a good relationship between the complainant and appellant
    was a neutral factor was made in the context of that particular case. The real
    problem in
Bartholomew
was the trial judges
    finding that the complainant had no motive to fabricate, which was unsupported
    by the evidence. In my view, without a more explicit statement,
Bartholomew
should not be read as having revised the
    principles established in
Batte

and
L.L.

[52]

Consistent
    with this interpretation, in several cases following
Bartholomew
(see, for example,
W.R.
;
R.
    v. Mirzadegan
, 2019 ONCA 864; and
R. v.
    MacKenzie
, 2020 ONCA 646
0F
[1]
),
    this court has confirmed that the trier of fact is entitled to consider the
absence of
    evidence
of motive to fabricate as one factor in assessing the
    complainants credibility. As in
Batte
and
L.L.
,
the cases caution against placing an improper emphasis on the absence of
    evidence of motive to fabricate, finding a proven absence of motive when the
    evidence does not support such a finding, and placing an onus on the accused to
    prove the complainant had a motive to lie. But, assuming these errors are not
    present, the trier is entitled to consider the absence of evidence of motive to
    fabricate as one factor among many in assessing the complainants credibility.

[53]

In
MacKenzie
, Doherty J.A., writing for himself, van
    Rensburg and Trotter JJ.A., confirmed that the absence of evidence of motive to
    fabricate may be left with the jury as a factor to consider in assessing the
    complainants credibility
.
In
MacKenzie
,
    the appellant argued that Crown counsel improperly invited the jury to find
    that the appellants failure to prove a motive to fabricate on the part of the
    complainant confirmed the complainants evidence. The defence argued at trial
    that the complainant was fabricating her evidence and suggested two possible
    motives.

[54]

Doherty
    J.A. rejected the appellants argument, observing, at para. 34:

It was open to the jury to reject the motives to fabricate
    offered by the defence and to conclude there was no evidence of a motive to
    fabricate. If the jury took that view, the absence of any evidence of a motive
    to fabricate could be used as one factor in assessing [the complainants]
    credibility: see
R. v. J.(H.)
, 2020 ONCA 165,
    at paras. 145-46.

[55]

Doherty
    J.A. held that a brief reference to motive in the Crowns closing address did
    not place any onus on the defence to prove that the complainant had a motive to
    lie, in light of the trial judges repeated and correct instructions on the
    burden of proof, and the manner in which he dealt with the relevance of a
    witnesss potential motive: at para. 38.

[56]

Lastly, a case that bears some similarities to the case under
    appeal is this courts decision in
R. v. O.M.
,
    2014 ONCA 503, 313 C.C.C. (3d) 5. There
this court dismissed
    an appeal where the trial judge explicitly found that the Crown had proven an
    absence of a motive to fabricate the allegations (at para. 106), or put
    differently, no motive to fabricate. Before this court, the appellant argued
    that the trial judge erred by finding that the Crown had established the
    complainants lack of a motive to fabricate: at para. 104. This court rejected
    that argument.

[57]

Cronk J.A., writing for the court, accepted the
    distinction between the absence of evidence of a demonstrated motive to
    fabricate and affirmative proof of no motive to fabricate: at para. 107. She
    held that there was no basis to conclude that the trial judge confused the
    absence of evidence of a motive to fabricate with the absence of such a
    motive: at para. 108. The trial judge considered and rejected the defence suggestion
    that each complainant had a motive to fabricate. He did not suggest that the
    complainants must be telling the truth because no motive to fabricate had been
    demonstrated. Instead, he considered the absence of an established motive to
    fabricate as only one factor among many in assessing the complainants
    credibility. This was not in error, as it was consistent with
Batte
.
    Cronk J.A. concluded that it was open to the trial judge to find an absence of
    apparent motive by the complainants to fabricate: at para. 109.

[58]

In other words, even though on its face, the
    trial judge appeared to have made a positive finding that the Crown had proven
    the absence of a motive to fabricate, this did not warrant allowing the appeal
    because of how the trial judge treated this conclusion. He did not treat it as
    dispositive, but only as a factor to consider.

[59]

In
    this case, the trial judges treatment of the motive issue was consistent with the
    cases discussed. He specifically cautioned himself against placing any
    obligation on the accused to demonstrate why the complainant would fabricate
    her evidence. Nothing suggests that he leapt to the conclusion that the
    complainant must be telling the truth. He considered the complainants
    credibility independent from his conclusion that there was an absence of evidence
    of a motive to fabricate. As mentioned, the issue of motive to fabricate had
    been raised by the defence and the trial judge felt obliged to address it. Lastly,
    he did not place excessive weight on the absence of evidence of motive. Indeed,
    the trial judge identified the issue as an observation and acknowledged that it
    was just one factor to consider. As in
W.R.
, the
    trial judges comment about motive did not drive the trial judges credibility
    findings, nor did he suggest that his findings on motive led him to conclude
    that the complainant must be telling the truth.

[60]

Credibility
    findings are the province of the trier of fact. In this case, the trial judge
    clearly had no reasonable doubt that the appellant was guilty of sexual
    assault. His treatment of motive to fabricate did not infect that conclusion. In
    these circumstances, there is no need to rely on the curative proviso.

VI.     Disposition

[61]

For these reasons, I would dismiss the appeal.

Released: February 3, 2021 (S.E.P.)

S.E. Pepall
    J.A.

I agree. K.
    van Rensburg J.A.

I agree. David
    Brown J.A.

[1]
Paciocco J.A.s comments in
R.
    v. A.S.
, 2020 ONCA 229, and the courts comments in
R. v. S.H.
, 2020 ONCA 34, arguably could
    be interpreted as being to the contrary. However, the issue of motive to
    fabricate was not central to those appeals and the comments in both cases were
obiter
.


WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect
    of whom the proceedings are held is tried or ordered to stand trial, the trial
    is ended.

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S.,
    1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.A., 2021 ONCA 93

DATE: 20210211

DOCKET: M52166 (M51556)

Trotter,
    Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.A.

Applicant

Leora Shemesh, for the applicant

David Friesen, Eric Taylor and Nicole
    Rivers, for the respondent

Heard: February 5, 2021 by
    videoconference

On review of the order of Justice Russell Juriansz of the Court of
    Appeal for Ontario, dated November 4, 2020.

By the Court:

[1]

On October 21, 2020, a panel of this court
    ordered that the applicant be detained pending his trial on two counts of first
    degree murder, and one count of attempted murder, following two shootings
    linked to organized crime.

[2]

The applicant has sought leave to appeal this
    decision to the Supreme Court of Canada. In the meantime, he applied to this
    court seeking bail pending his application for leave to appeal; alternatively, he
    sought a stay of execution of the decision detaining him. Juriansz J.A., sitting
    as a single judge of this court, denied both heads of relief. The applicant now
    seeks to review both aspects of Juriansz J.A.s decision before a panel of this
    court.

[3]

At the conclusion of the oral hearing, we
    announced our decision to dismiss the application, with reasons to follow.
    These are our reasons.

Background

(a)

History of the Bail Proceedings

[4]

This application is the latest chapter in the
    applicants effort to be released on bail while he awaits his trial.

[5]

On July 30, 2019, Parayeski J. denied the
    applicants first bail application, brought under s. 522(2) of the
Criminal
    Code
, R.S.C. 1985, c. C-46:
R. v. J.A
.
,

2019 ONSC
    4532. On October 21, 2019, a panel of this court dismissed a review of that
    detention order under s. 680:
R. v. J.A
.
, 2019 ONCA 831.

[6]

The applicant brought another bail application
    under s. 522(2), relying on asserted changed circumstances, including a revised
    release plan with new sureties. This time, he was successful. Goodman J.
    released him on April 16, 2020 on strict conditions, with named sureties in the
    amount of $300,000, augmented by electronic monitoring:
R. v. J.A
.
,
    2020 ONSC 2312.

[7]

The Crown applied under s. 680 to review Goodman
    J.s release order. Fairburn J.A., as she then was, directed that a panel
    review the decision:
R. v. J.A.
,

2020 ONCA 470. On October 21,
    2020, Thorburn J.A. (Miller J.A., concurring) allowed the application and
    imposed a detention order under s. 680(1)(b) of the
Criminal Code
;
    Nordheimer J.A., dissenting, would have dismissed the Crowns application:
R.
    v. J.A
.
, 2020 ONCA 660 (the October 2020 Order).

[8]

On October 21, 2020, the applicant applied to
    the Supreme Court of Canada for leave to appeal the October 2020 Order, pursuant
    to s. 40 of the
Supreme Court Act
, R.S.C. 1985, c. S-26.

(b)

The Order Under Review

[9]

After filing his application for leave to
    appeal, the applicant applied to a single judge of this court for the following
    relief: first, purporting to rely on s. 679(1)(c) of the
Criminal Code
,
    the applicant requested bail pending his application for leave to appeal; and second,
    in the alternative, he relied on s. 65.1 of the
Supreme Court Act

and
    requested a stay of this courts October 2020 Order pending his application for
    leave to appeal. On November 4, 2020, Juriansz J.A. dismissed the application.

[10]

Juriansz J.A. concluded that he did not have
    jurisdiction to release the applicant under s. 679(1)(c) of the
Criminal
    Code
. As he explained, at para. 11:

Section 679, when read in context of the
Code
s
    entire bail regime, is inapplicable to a person, such as the applicant, who is
    awaiting trial. Section 679, when read in context and given its plain
    grammatical meaning, applies to a person who has been convicted and allows this
    court to release them from custody pending the determination of an appeal of
    conviction and/or sentence.
Section 679(1)(c) does not provide a route to
    have a single judge of this court review a decision of this court made under s.
    680, albeit on an interim basis
. [Emphasis added.]

[11]

As for the applicants alternative request for
    relief  a stay of proceedings  Juriansz J.A. ruled as follows, at para. 13:

As I have
    concluded I do not have jurisdiction to grant that the applicant be released
    under s. 679(1)(c), he requests that I consider the merits of his application
    for release and issue a stay of this courts October 21, 2020 order.
I
    decline to do so, as doing so would circumvent the statutory scheme of judicial
    release
. [Emphasis added.]

(c)

The Supreme Court of Canada

[12]

On November 17,
    2020, the applicant applied to the Supreme Court of Canada for a stay of the
    October 2020 Order (the November 2020 Application). In the alternative, he
    requested that his case be remitted back to this court for a determination
    pursuant to s. 679(1)(c). On January 18, 2021, Martin J. issued the following
    order:

The motion for a stay of execution is
    dismissed on the basis that the parties may have recourse under s. 7(5) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, and s. 683(3) of the
Criminal Code
,
    R.S.C. 1985, C-46, that they have not exhausted at the Court of Appeal.

[13]

The applicant returns to this court, relying on
    these provisions to review the order of Juriansz J.A.

Analysis

(a)

This Panels Authority to Review Juriansz J.A.s
    Decision

[14]

Section
    7 of the
Courts of Justice Act
,
R.S.O. 1990, c. C.43,
determines the composition of this
    court in various circumstances. Subject to some exceptions, motions before this
    court are heard by a single judge: see
R. v. Scherba
(2001), 54 O.R. (3d) 555 (C.A.), at para. 12. Subsection 7(5) provides:
A panel of the Court of Appeal may, on motion, set aside or vary
    the decision of a judge who hears and determines a motion.

[15]

As discussed below, an order of a single judge of this court under
    s. 679(1)(c) of the
Criminal Code
is properly reviewable by a panel of
    the court under s. 680 of the
Code
, which the applicant has not invoked,
    rather than under the
Courts of Justice Act
. But more fundamentally, s.
    679(1)(c) does not have any application in a case such as this, in which the
    applicant is seeking to be released on bail while he attempts to appeal to the
    Supreme Court of Canada from an order of this court that he be detained pending
    trial. Accordingly, the power in s. 7(5) of the
Courts of Justice Act
is
    of no assistance to the applicant to the extent he founds his request for
    relief on s. 679(1)(c) of the
Criminal Code
.

[16]

While s. 7(5) of the
Courts of Justice Act
gives this panel
    the power to review Juriansz J.A.s decision as it relates to a stay of the
    October 2020 Order, in our view there is no basis to set aside or vary his
    decision.

(b)

Bail Pending Application for Leave to Appeal

[17]

Martin
    J.s order makes no reference to s. 679(1)(c). This is significant because, as
    part of his November 2020 Application before that Court, the applicant
    requested alternative relief  that the Court remand the case to this court to
    consider the applicability of s. 679(1)(c). Martin J. did not do so.

[18]

Moreover,
    if the applicant were correct in his submission that Juriansz J.A. erred in
    finding that s. 679(1)(c) is inapplicable, his avenue of review would not fall
    under s. 7(5) of the
Courts of Justice Act
: it
    would fall under s. 680 of the
Criminal Code
.
    Section 680 provides that orders made under s. 679 may be reviewed by a panel on
    the direction of the chief justice or acting chief justice of the court of
    appeal. This is the case even though Juriansz J.A. found that he had no
    jurisdiction to entertain the s. 679 application: see
R.
    v. Stoltz
(1993), 84 C.C.C. (3d) 422 (B.C.C.A.), at p. 428. The prospect
    of this taking place  a panel review (under s. 680) of a single judges decision
    concerning bail pending leave to appeal (under s. 679(1)(c)) of a previous
    panels bail decision (under s. 680)  demonstrates the untenability of the
    applicants position that s. 679(1)(c) has any application in these
    circumstances.

[19]

We
    agree with Juriansz J.A.s conclusion that s. 679(1)(c) does not apply in this
    case. The section provides as follows:

679(1) A judge of the court of appeal may, in accordance with
    this section, release an appellant from custody pending the determination of
    his appeal if,

(a) in the case of an appeal to the court of appeal against
    conviction, the appellant has given notice of appeal or, where leave is required,
    notice of his application for leave to appeal pursuant to s. 678;

(b) in the case of an appeal to the court of appeal against
    sentence only, the appellant has been granted leave to appeal; or

(c)
in the case of an appeal or an application for leave
    to appeal to the Supreme Court of Canada, the appellant has filed and served
    his notice of appeal or, where leave is required, his application for leave to
    appeal
. [Emphasis added.]

[20]

Considered
    without context, s. 679(1)(c) could be read as encompassing an application for
    leave to appeal from a court of appeals denial of bail under s. 680. But, as
    Juriansz J.A. concluded, that is not what s. 679 is designed to achieve. As
    with the rest of the section, and consistent with Part XXI (Appeals
    Indictable Offences) as a whole, s. 679(1)(c) applies to bail pending appeal
    from conviction and/or sentence; not from a bail decision under s. 680.

[21]

The
    applicant essentially asserts a right to bail pending a bail review (or in this
    case, an application for leave to appeal from the denial of bail). This concept
    is alien to all of the bail review provisions throughout the
Criminal Code
. The applicants suggested application of
    s. 679(1)(c) puts a single judge (and a reviewing panel) in the untenable
    position of having to explicitly endorse or reject the underlying detention
    order that is the subject of proceedings in the Supreme Court of Canada. It
    will be for that Court, not a single judge or panel of this court, to determine
    whether this courts order under s. 680 should stand; that is, whether the
    applicant should be released on bail pending his trial.

[22]

The
    applicants request for a review of the decision under s. 679(1)(c) is
    dismissed.

(c)

Stay of Execution on Application for Leave to
    Appeal

[23]

A
    more challenging question is whether this court may exercise the power in s.
    65.1 of the
Supreme Court Act

to in effect grant bail in a criminal proceeding. Section 65.1 provides
    that this court may order a stay of proceedings against one of its own judgments
    when a party has served and filed a notice of application for leave to appeal the
    judgment at issue. The stay of proceedings sought by the applicant from
    Juriansz J.A. in this case was the equivalent of a release order. Indeed, the
    applicant sought, and still seeks, through a stay of the October 2020 Order, to
    restore Goodman J.s order. But as discussed below, there is a very real
    practical hurdle to achieving this result.

[24]

Relying
    on the order of Martin J., the applicant submits that his requested relief is
    achievable through the application of s. 683(3) of the
Criminal
    Code
, which provides as follows:

(3) A court of appeal may exercise, in relation to proceedings
    in the court, any powers not mentioned in subsection (1) that may be exercised
    by the court on appeals in civil matters, and may issue any process that is
    necessary to enforce the orders or sentences of the court, but no costs shall
    be allowed to the appellant or respondent on the hearing and determination of
    an appeal or on any proceedings preliminary or incidental thereto.

[25]

The
    applicant contends that this section equips this court with the authority to
    order a stay of proceedings under s. 65.1 of the
Supreme
    Court Act
. That section provides:

65.1 (1) The Court, the court appealed from or a judge of
    either of those courts may, on the request of the party who has served and
    filed a notice of application for leave to appeal, order that proceedings be
    stayed with respect to the judgment from which leave to appeal is being sought,
    on the terms deemed appropriate.

(2) The court appealed from or a judge of that court may
    exercise the power conferred by subsection (1) before the serving and filing of
    the notice of application for leave to appeal if satisfied that the party
    seeking the stay intends to apply for leave to appeal and that delay would
    result in a miscarriage of justice.

(3) The Court, the court appealed from or a judge of either of
    those courts may modify, vary or vacate a stay order made under this section.

[26]

As
    the applicant observes, this provision has been applied in proceedings under
    the
National Defence Act
, R.S.C. 1985, c. N-5
    to address the question of bail pending proceedings in the Supreme Court of
    Canada. Although that Act provides for bail pending the appeal of proceedings
    in the Court Martial Appeal Court of Canada (CMAC) (see ss. 248.1 to 248.4),
    the CMAC has no jurisdiction to order judicial interim release of a convicted
    person pending his or her appeal to the Supreme Court of Canada: see
R. v. Stillman
, 2019 CMAC 1, at para. 3;
R. v. Royes
, 2016 CMAC 3, 338 C.C.C. (3d) 183, at paras.
    16-17, leave to appeal refused, [2017] S.C.C.A. No. 324. Nonetheless, in both
    of these cases, Bell C.J. applied the well-known criteria in
RJR-MacDonald Inc. v. Canada (Attorney General)
, [1994]
    1 S.C.R. 311, to the stay provision under s. 65.1 of the
Supreme
    Court Act

to determine whether it was appropriate
    to stay the imposition of the offenders sentence, thereby granting a remedy
    similar to judicial interim release. See also
T.(M.) v. A.(H.)
,
    [1995] 1 S.C.R. 445, at paras. 4-5, in which Sopinka J. relied upon s. 65.1 of
    the
Supreme Court Act
to release an applicant
    in the context of civil contempt, in circumstances where s. 679 of the
Criminal Code

arguably did not
    apply.

[27]

There
    is nothing in s. 65.1 that expressly excludes a detention order from the
    category of judgments that may be stayed. However, we agree with the Crown,
    that given the grounds that justify a detention order pending trial in s.
    515(10) of the
Criminal Code
, it is not
    particularly clear how the
RJR-MacDonald

criteria are to be applied, especially the factor of where
    the balance of convenience may lie.

[28]

We
    need not, however, explore this issue any further. The applicants request to
    Juriansz J.A. was to stay this courts October 2020 Order, enabling him to be
    re-released on the terms ordered by Goodman J. However, the applicant is no
    longer able to meet a critical part of this order.

[29]

Goodman
    J. released the applicant after this court upheld Parayeski J.s detention
    order. Goodman J.s decision was based on changed circumstances, including a
    new release plan. As Goodman J. said, at para. 122:

I confess that this decision is a close call.
In adding the
    COVID-19 pandemic into the proposed release plan's "mix", as expressed
    in the recent jurisprudence, along with some diminution to the strength of the prosecution's
    case, I am persuaded that the applicant has met his onus
. In my opinion, the
    decidedly restrictive release plan proffered by the applicant will address the Crown's
    primary and secondary ground concerns
. [Emphasis added.]

[30]

In
    addition to naming the applicants father a surety, Goodman J. also named two
    further sureties  ErT and EIT  in the amount of $300,000:
Criminal Code
, s. 515(2.1). These sureties were
    cross-examined at the bail hearing. Their sufficiency was challenged by the
    Crown. Goodman J. assessed their evidence in the following way, at para. 81:

While the two principal sureties seemed sincere, I tend to agree
    with the Crown that both ErT and ElT came across as somewhat naïve in their understanding
    of the applicant's entire situation
. That being said, they testified as to their
    willingness to assist with the plan, why there is a substantial monetary pledge
    in support and why they did not present themselves earlier as potential sureties.
Overall, I find both ErT and ElT to be well-meaning, credible and up to the
    challenge of supervising J.A.
[Emphasis added.]

[31]

We
    were advised by the parties that ErT and EIT are no longer able to serve as
    sureties. The applicant has proposed two new sureties in the same amount
    $300,000.

[32]

Counsel
    for the applicant acknowledges that this turn of events is less than ideal;
    however, she submits that, under s. 65.1 of the
Supreme
    Court Act
, this court may impose a stay on the terms deemed
    appropriate. We cannot accept this submission. The two named sureties were
    integral to Goodman J.s order, as reflected in the passages quoted in paras.
    29 and 30, above. Moreover, Goodman J. ordered that the applicant live with ErT
    and ElT while he was out on bail. The substitution of new sureties in these
    circumstances goes well beyond the imposition of terms deemed appropriate in
    s. 65.1(1) of the
Supreme Court Act
. It would
    involve a significant refashioning of Goodman J.s order in a decision that he
    characterized as a close call.

Conclusion

[33]

The application is dismissed.

Released: GTT February 11, 2021

Gary Trotter J.A.

B. Zarnett J.A.

S. Coroza J.A.