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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. R.V., 2018 ONCA 547

DATE: 20180613

DOCKET: C63495

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.V.

Appellant

Jonathan Dawe, for the appellant

Katie Doherty, for the respondent

Heard: May 16, 2018

On appeal from the conviction entered on October 27, 2016
    and the sentence imposed on March 22, 2017 by Justice Robert Gee of the Ontario
    Court of Justice.

Paciocco J.A.:

OVERVIEW

[1]

It is critically important to protect complainants from questioning
    about their sexual activity when that sexual activity does not form the
    subject-matter of the charge. There are constitutionally guaranteed equality
    and privacy interests at stake. There are also access to justice concerns
    arising from the deterrent effect that allowing questions about deeply personal
    matters can have on the readiness of victims to report sexual offences. And
    there are compelling concerns, particularly acute in jury trials, that such
    questioning can feed rape myths, potentially distorting the outcomes of cases.

[2]

Notwithstanding these powerful considerations, there are times when such
    questioning must be permitted. When applied properly, s. 276 of the
Criminal
    Code
, R.S.C. 1985, c. C-46 strikes the balance. This is one of those cases
    where a proper balancing under s. 276 requires that such questioning be permitted.

[3]

Here, the Crown claimed that the complainants pregnancy corroborated
    her sexual assault allegation. The implication being that only the accused, R.V.,
    could be the father. Yet the application judge
[1]
refused to allow R.V. to attempt to challenge that proposition when
    cross-examining the complainant, a witness who would clearly be able to answer
    those questions. That decision was in error.

[4]

A second error occurred after the application judge who made the s. 276
    ruling was unable to continue with the trial. When the trial judge took over
    the trial pursuant to s. 669.2, he held that he could not reconsider the application
    judges s. 276 ruling, because s. 669.2 judges are bound by rulings made by the
    judge they replace. That is not so. As I will explain, in the particular
    circumstances of this case, this error mattered.

[5]

I would therefore allow R.V.s conviction appeal and order a new trial.

ISSUES

[6]

There are two general issues in this appeal that warrant consideration.
    The first issue also raises several sub-issues that must be addressed:

A.      Did
    the application judge err in refusing to permit R.V. to conduct any cross-examination
    of the complainant about sexual activity that does not form the subject-matter
    of the charge?

(1)     Is
    there a fixed rule requiring cross-examination or other evidence tending to
    prove that a person other than the accused caused the physical consequences of
    sexual assault that the Crown relies upon to prove the offence?

(2)     Did
    the application judge err in her application of the s. 276(2)(a) requirement
    that, to be admissible, evidence must be of specific instances of sexual
    activity?

(3)     Did
    the application judge err in balancing the competing interests under s. 276?

(4)     If
    there was an error in the application of s. 276, did it cause a substantial
    wrong or miscarriage of justice?

B.      Did
    the trial judge err in holding that the application judges s. 276 ruling was
    binding on him pursuant to s. 669.2?

[7]

Given my conclusion that the errors pertaining to these grounds of appeal
    warrant a new trial, I will not address R.V.s other grounds of appeal, or his sentence
    appeal.

BACKGROUND FACTS

A.

The Alleged Assault

[8]

R.V. and the complainant are cousins. They were camping with members of
    their extended family during the 2013 Canada Day long weekend. The complainant
    testified that in the early morning hours of July 1, 2013, R.V. lured her into
    a campground washroom where he sexually assaulted her in a shower stall. He was
    20 years old at the time. She was 15. Both the complainant and R.V. had
    consumed alcohol earlier that night.

[9]

The complainant testified that R.V. forced sexual kissing on her and attempted
    to grope her and remove her shirt. He directed her onto the ground and removed
    their bottom clothing. While on top of her, he placed his penis near her vagina
    while holding her arms stretched out by her wrists. She testified that she did
    not remember what happened next, a period she referred to in cross-examination as
    a black out situation.

[10]

Her
    next memory was of R.V. slowly releasing her wrists. She said that he told her
    not to tell anyone what had happened and then left.

[11]

The
    complainant testified that her vagina felt wet and sticky and she felt disgusted
    and so went and cleaned herself up. She told no-one what had happened.

[12]

R.V.,
    who testified, denied that he had any sexual contact with the complainant.

B.

The Medical Appointments

[13]

Throughout
    the summer, the complainant felt sick. She complained of abdominal pain and
    nausea. She went to see Dr. Montgomery towards the end of August.

[14]

Dr.
    Montgomery testified that the complainant told her of her symptoms. The
    complainant also told Dr. Montgomery that she had not had her period since
    June, but denied sexual activity when asked. On August 29, 2013, Dr. Montgomery
    requisitioned an ultrasound of the complainants abdomen. She also arranged a
    routine urinalysis that included a pregnancy test.

[15]

Before
    the complainant went for the ultrasound, she had sexual intercourse with her then
    17 year old boyfriend. This occurred on September 2, 2013.

[16]

On
    September 14, 2013, the complainant had the ultrasound. During the ultrasound
    she learned that she was pregnant, something she already feared from a positive
    home pregnancy test. She believed her boyfriend was the father.

[17]

Dr.
    Montgomery saw the complainant again on September 17, 2013 to discuss the
    urinalysis results, which confirmed that the complainant was pregnant. The
    complainant disclosed the September 2, 2013 sexual intercourse with her
    boyfriend to Dr. Montgomery but denied other intercourse. She told Dr.
    Montgomery she could see a baby and hear the foetuss heartbeat during the
    ultrasound. This would not be possible if the complainant was impregnated on
    September 2, 2013, so Dr. Montgomery ordered another ultrasound for the next
    day, September 18, 2013. That ultrasound provided an estimated gestational age
    for the foetus of 13 weeks and 5 days. The standard practice permits a variance
    from the estimated gestational age of between 5 to 7 days either way.

[18]

Dr.
    Montgomery discussed the results with the complainant the same day, providing
    the complainant with her estimate of the time of conception. She asked the
    complainant further questions. During cross-examination, Dr. Montgomery
    confirmed that the complainant told her that while camping with the family during
    Canada Day weekend 2013, and while drunk, she walked to the bathroom with her
    cousin R.V., that she was scared to say no, that R.V. tried to penetrate her,
    and that there was cum outside of her vagina.

[19]

Dr.
    Montgomery arranged for the complainant to visit a womens health clinic and then
    discharged her duty by reporting the complainants situation to the Childrens
    Aid Society (CAS).

[20]

On
    September 20, 2013, the police contacted Dr. Montgomery, obviously having been
    alerted by the CAS. They also contacted the complainant and arranged for her to
    give a statement at the police station on September 23, 2013.

[21]

By
    the time she gave her statement on September 23, 2013, the complainant had
    terminated the pregnancy. The foetal remains had already been destroyed on
    September 21, 2013, making it impossible to confirm paternity through DNA
    testing.

C.

The Trial

[22]

R.V.
    was charged with sexually assaulting and touching the complainant for a sexual
    purpose with his penis when she was under 16 years of age contrary to ss. 271
    and 151 of the
Criminal Code
.

[23]

Pre-trial
    motions were held, including R.V.s s. 276 application. The application judge
    denied the motion for reasons that will be outlined below.

[24]

The
    scheduled trial date was adjourned. For reasons immaterial to this decision, the
    application judge who decided the s. 276 application declared herself unable to
    continue with the trial. Another judge  the trial judge  was assigned, and he
    made the appropriate order under s. 669.2, finding that the application judge
    was unable to continue. He then assumed carriage of the trial that had already
    commenced, but in which no evidence had been heard on the merits.

[25]

R.V.
    immediately asked the trial judge to reconsider the application judges s. 276
    decision. The trial judge declined to do so. He found that the application
    judges s. 276 ruling was binding on him. He went on to comment that even if it
    was not, he would not have reconsidered her ruling based on an identical
    application in the absence of a change of circumstances.

[26]

As
    I will explain in more detail in my analysis of the second ground of appeal,
    changes in circumstances did occur as the trial unfolded. However, defence
    counsel did not renew his s. 276 request.

ANALYSIS

A.

Refusing to Permit R.V. to Conduct any Cross-Examination of the Complainant

[27]

It
    is undisputed that by the time R.V. brought his s. 276 application, the Crown
    intended to rely on proof of the complainants pregnancy as evidence of the
    sexual assault. In the absence of biological confirmation of paternity, the bridging
    inference the Crown was seeking between the pregnancy and R.V.s guilt was that
    only R.V. could have impregnated the complainant. In effect, in opposing the s.
    276 application, the Crowns position amounted to this: we say you are the only
    one who could have impregnated the complainant but you are not allowed to
    question her about whether this is true. In my view, this is a patently unfair
    outcome that cannot be justified in the circumstances of this case.

[28]

The
    appeal Crown did not dispute the relevance in questioning the complainant about
    whether she had sexual experiences with others that may have led to her
    impregnation. Instead, the appeal Crown said that R.V.s application asked for
    too much. More importantly, she also urged that R.V.s application could not
    meet the legal test since it was without foundation. She argued that the law
    supports the trial judges discretionary decision to deny R.V.s application in
    its entirety and asked that we give substantial deference to the application
    judges decision, as required by this courts decision in
R. v. M.T.
, 2012
    ONCA 511, 289 C.C.C. (3d) 115, at para. 54.

[29]

I
    accept the Crown submission that the scope of R.V.s s. 276 request was
    extravagant. He sought leave to question the Complainant about her prior
    sexual activity, with the Applicant, or any other individual, that may have
    occurred between June 1
st
and July 1
st
, 2013. In fact,
    relevant cross-examination arising from the tactical position taken by the
    Crown would be confined to questions about sexual activity between the
    complainant and persons other than R.V. that could account for the pregnancy.

[30]

Yet
    the over-breadth of R.V.s formal request had nothing to do with the
    application judges decision to disallow R.V.s s. 276 application. She
    recognized what R.V. was seeking: I appreciate that the defence seeks to
    challenge any potential inference that the alleged sexual activity was the only
    possible cause of the pregnancy and hence the pregnancy may corroborate the
    complainants account. In my view, the imprecision in R.V.s formal request
    for relief would not have provided the application judge with a basis for
    denying him the opportunity to ask relevant questions.

[31]

Nor
    does the law support the trial judges decision. The cross-examination proposed
    by R.V. was adequately identified to satisfy the specific instances of sexual
    activity requirement in s. 276(2)(a). The application judge therefore erred in
    concluding that R.V.s application was not legally capable of satisfying s.
    276. I also conclude that she committed a reversible error when balancing the
    probative value and prejudicial effect of the evidence.

[32]

I
    will begin, however, by rejecting R.V.s argument that there is a fixed rule
    that governs his case, requiring that his s. 276 application be granted.

(1)

Is there a fixed rule governing this case?

[33]

R.V.
    argued in his factum that the Supreme Court in
R. v. Seaboyer
, [1991]
    2 S.C.R. 577 held that ss. 7 and 11(d) of the
Charter of Rights and Freedoms
[require] defendants in sexual assault cases to be allowed to adduce evidence
    of other sexual activity by a complainant in order to explain the physical
    conditions on which the Crown relies to establish intercourse  such as
    pregnancy. I disagree.
Seaboyer
does not go this far.

[34]

In
Seaboyer
, a majority of the court struck down prior rape shield
    legislation because it attempted to predefine, with fixed rules, when prior
    sexual experience evidence would be probative enough to be admissible. The majority
    held that the problem in approaching the admissibility issue in such a way was that
    relevance, probative value, and prejudice in all of its forms are fact-specific
    considerations that vary depending on the circumstances of the case. This makes
    it perilous to attempt fixed rules. I agree with the Crown that
Seaboyer
cannot
    be read as erecting the same kind of fixed admissibility regime that it struck
    down.

[35]

The
    wisdom in avoiding fixed rules is easy to demonstrate. For example, if there
    had been DNA evidence confirming that R.V. was not the one who impregnated the
    complainant, evidence about the complainants other sexual experiences would
    add nothing of value. A fixed rule permitting such questioning would create
    needless prejudice.

[36]

Moreover,
    it is clear from the passages that R.V. relied upon that
Seaboyer
was
    not attempting to set down a fixed rule. The passage from
Seaboyer
partially quoted in the passage from R.V.s factum I reproduced above actually
    says that such evidence
may be relevant
to explain
    physical conditions (emphasis added): at p. 614. Before listing evidence of
    specific instances of sexual conduct tending to prove that a person other than
    the accused caused the physical consequences of the rape alleged by the
    prosecution as an example of admissible evidence, McLachlin J. (as she then
    was), prefaced that and the other examples she was about to give, saying
    evidence of consensual sexual conduct on the part of the complainant
may be admissible
 (emphasis added) where its probative
    value is not substantially outweighed by its prejudicial effect: at p. 635.

[37]

There
    is no fixed rule allowing accused persons to prove that the complainants other
    sexual activities may have caused a physical condition the Crown relies upon to
    confirm an alleged offence.
Seaboyer
does, however, affirm that such
    cases exemplify situations where the proof of other sexual activity may well be
    important enough to admit, a point I will return to below.

(2)

Does the specific instances of sexual activity requirement preclude R.V.s
    application?

[38]

The
    application judge decided that R.V.s s. 276 application should be dismissed
    because it was not capable of meeting the test set out in s. 276(2).

The application judge offered two reasons
    for this conclusion. The first reason, which I address now, was that the the
    proposed questioning is not of specific instances of sexual activity as
    required by s. 276(2)(a), and therefore incapable of satisfying s. 276(2).

[39]

Taken
    as a whole, the application judges reasons suggest that she made this
    determination for the reasons advanced on appeal by the Crown, namely, that the
    request for cross-examination was without foundation as R.V. did not offer an
    evidentiary basis that the complainant engaged in identified instances of
    sexual activity that could have caused her pregnancy. As a result, the trial
    judge found the probative value of the proposed questioning is at best
    speculative, and that the proposed questions are more in the nature of a
    fishing expedition to ask about any sexual activity over a defined timeframe.

[40]

In
    my opinion, the application judge erred in effectively concluding that s.
    276(2)(a) always requires particularization of identifiable instances of sexual
    activity, and in rejecting R.V.s application because it did not meet that
    standard. What s. 276(2)(a) requires is adequate identification of the target
    evidence to enable a proper s. 276 evaluation to be undertaken, and to enable the
    Crown to safeguard the complainants legitimate interests. The application
    judge understood that R.V. was seeking to cross-examine the complainant about the
    particular occasions in the month of June 2013 when the complainant engaged in
    sexual activity capable of impregnating her. In my view, that adequately identified
    the evidence he sought through his proposed cross-examination, to meet s.
    276(2)(a)s requirements.

[41]

Section
    276(2) provides, in material part:

In proceedings in respect of an offence referred to in subsection
    (1), no evidence shall be adduced by or on behalf of the accused that the
    complainant has engaged in sexual activity other than the sexual activity that
    forms the subject-matter of the charge, whether with the accused or with any
    other person, unless the judge, provincial court judge or justice determines,
    in accordance with the procedures set out in sections 276.1 and 276.2, that the
    evidence

(a)     is of specific instances of sexual activity

[42]

This
    court has held that the degree of specificity required to meet s. 276(2)(a)
    depends to a large extent on the nature of the sexual activity that the accused
    seeks to adduce:
R. v. L.S.
, 2017 ONCA 685, 354 C.C.C. (3d) 71, at
    para. 83. Section 276(2)(a) does not always require identification of the
    details of specific sexual encounters. Accordingly, Doherty J.A. held, at paras.
    84-85, that a request by a husband to introduce evidence that during the
    currency of his spousal relationship with [the complainant], both before and
    after the alleged assault, he and [the complainant] engaged in consensual
    sexual intercourse, adequately identified the sexual activity in respect of
    which he sought to adduce evidence.

[43]

The
    evidence sought in
L.S.
was adequately identified because it enabled
    the purposes behind s. 276(2)(a) to be achieved. Justice Doherty explained the
    role of s. 276(2)(a) in these terms, at para. 82:

This provision is designed to ensure that the nature of the
    proposed evidence is properly identified so that the criteria for admissibility
    in s. 276(2) can be accurately applied. This provision also serves to ensure
    that the Crown has full notice of the evidence to be adduced and that the
    complainants legitimate interests can be properly safeguarded

[Citation omitted.]

[44]

The
    court, aware of the evidence L.S. wanted to secure, was then able to apply the remaining
    admissibility requirements of s. 276. The Crown also had adequate notice of
    what to expect. It was well-positioned to protect the legitimate interests of
    the complainant, even though no particularized instances of sexual activity had
    been identified.

[45]

Thus
    the phrase specific instances of sexual activity does not require, as a
    necessary condition, the particularization of identified instances of sexual
    activity. It requires instead that the proposed evidence be adequately identified
    to enable a proper s. 276 evaluation to be undertaken, and for the Crown to
    safeguard the complainants legitimate interests.

[46]

Where
    the defence is seeking to lead affirmative exculpatory evidence, the question
    is whether that proposed evidence has been adequately identified. Where, as
    here, the defence seeks to obtain evidence through cross-examination, it is the
    subject area of the cross-examination that must be adequately identified.

[47]

There
    are good reasons for interpreting s. 276(2)(a) this way, apart from the fact
    that this interpretation is supported by the natural language of the provision,
    while still preserving the evident objective of s. 276(2)(a).

[48]

First,
    an adequate identification interpretation suits the overall legislative scheme
    in a way that a particularized identification requirement would not. This is
    because s. 276 does not serve only the legitimate personal and public interests
    in protecting complainants. It is a provision that is relied upon to broker
    competing interests, including the right of the accused to make full answer and
    defence and the personal and public interests in arriving at a just determination
    for accused persons. Interpreting s. 276(2)(a) as requiring an accused person
    to know the answers to relevant questions that only the complainant is apt to
    know before those relevant questions can be asked in cross-examination does not
    balance competing interests. It creates an imbalance that can create not only
    unfairness, but injustice.

[49]

I
    agree with comments made by Spies J. in
R. v. Nkemka
, 2013 ONSC 2121.
    In
Nkemka
, the Crown was alleging that the accused injured the
    complainants vagina. It then attempted to prevent Mr. Nkemka from
    cross-examining the complainant about whether sexual activity with others in
    the relevant 48 hour period could have caused those injuries, by insisting that
    Mr. Nkemka first particularize the specific sexual activity he wanted to ask
    about. Justice Spies said, at para. 6:

In my view, in these circumstances the precondition requiring disclosure
    by the defence of specific incidents of prior sexual activity cannot be
    interpreted in a way that requires the Defence to give particulars of something
    Mr. Nkemka would have no way of knowing; he would have no information about
    specific incidents of prior sexual activity in this case unless given an
    opportunity to question the Complainant.

[50]

Second,
    interpreting s. 276(2)(a) as allowing other sexual activity evidence to be
    admitted only where specific instances of sexual activity are identified with
    granular particularity would create an absolute rule of exclusion for general
    evidence about sexual experience, no matter how relevant and probative it is,
    or how low its prejudicial impact would be. In my opinion, Parliament could not
    reasonably have intended such a result.

[51]

I
    say that interpreting s. 276(2)(a) as imposing a particularized foundation
    requirement would have this unwarranted effect because s. 276(2)
prima
    facie
prevents the accused from adducing any evidence of sexual activity
    other than the sexual activity that forms the subject-matter of the charge,
    unless three preconditions are met, including s. 276(2)(a)s specific
    instances of sexual activity requirement. For example, in
L.S.
, an
    interpretation of s. 276(2)(a) requiring a particularized foundation to the
    admission s. 276 evidence would have prevented L.S. from offering evidence that
    he and his complainant spouse engaged in consensual sexual intercourse both
    before and after the alleged assault, which was found by this court to be relevant
    and probative.

[52]

Perversely,
    if L.S. were required to identify particularized instances of the complainants
    previous sexual conduct to win the right to cross-examine her so that he could show
    the sexual nature of their relationship, he would have had no choice but to first
    disclose specific details of their sexual activity. Instead of protecting the
    sexual privacy of the complainant, this would have compromised it.

[53]

As
    such, it is not surprising that courts have consistently held that an accused
    person applying to engage in relevant cross-examination of complainants about
    their sexual conduct on other occasions need not particularize that other
    sexual activity as a precondition to obtaining a s. 276 order. What matters is
    that the proposed line of questioning be adequately identified.

[54]

In
R. v. Aziga
, [2008] O.J. No. 4669 (S.C.), Mr. Aziga was alleged to
    have committed aggravated assault by infecting complainants with HIV. In
    response, Mr. Aziga was permitted to cross-examine those complainants about
    other sexual activity that may have led to their infection, even though he did
    not know whether they had actually engaged in other sexual activity. His line
    of questioning sought evidence that would have clear probative value, and when
    the s. 276 balancing was done, the proposed cross-examination was allowed.

[55]

In
R. v. Rodney
, [2008] O.J. No. 528 (S.C.), Mr. Rodney, a black man, was
    permitted to cross-examine the complainant about her statement that every black
    man I have ever met raped me. This cross-examination was intended to show her
    bias. The Crown attempted to prevent the cross-examination by challenging Mr.
    Rodney to particularize the other instances of alleged rape, which of course,
    Mr. Rodney could not do. The trial judge nonetheless permitted the
    cross-examination because the information sought was probative.

[56]

In
Nkemka
, Mr. Nkemka was permitted to cross-examine the complainant
    about whether she engaged in other sexual activity that could account for the
    injury to her vagina that the Crown alleged Mr. Nkemka had caused. Mr. Nkemka
    had no idea whether she had any sexual contact with anyone else in the relevant
    48 hours, but he did not have to, as his proposed line of cross-examination
    sought information that would have probative value.

[57]

In
R. v. Ralph
, 2014 ONSC 1072, Mr. Ralph was permitted, without
    particularized information, to cross-examine the complainants about whether they
    had ever engaged in consensual sexual intercourse with anyone they knew or
    believed to be HIV positive before he was alleged to have infected them. This
    cross-examination was undertaken in an effort to raise a reasonable doubt about
    the complainants claims that they would not have consented to sex with Mr.
    Ralph if he had told them he was HIV positive.

[58]

In
    each of these cases, the trial judges, having been given the proposed line of
    cross-examination, had adequate identification of the target evidence to enable
    a proper s. 276 evaluation to be undertaken. In addition, the Crown had
    sufficient notice to make submissions and safeguard the complainants
    legitimate interests.

[59]

The
    same holds true, in my view, in this case. For convenience, I will begin with
    the Crowns interest in s. 276(2)(a).

[60]

It
    is clear from the trial Crowns submissions made during the three s. 276
    application appearances that he was well aware that R.V. wanted to
    cross-examine the complainant about instances where she may have had other
    sexual experiences that could have caused the pregnancy. The Crown was well-positioned
    to participate in the s. 276 application and safeguard the complainants
    interest. It had adequate information in order to consult the complainant
    beforehand, and to make admissibility arguments during the s. 276 application.

[61]

The
    application judge also had sufficient information to determine the
    admissibility of R.V.s evidence.

[62]

She
    showed no insecurity in evaluating the risks of prejudice, which she did in
    some detail. She also had sufficient information to recognize that the defence
    does not intend such evidence to further the twin myths that, a) other sexual
    activity makes the accused more likely to have consented or, b) that the sexual
    activity makes her less worthy of belief. Her reservation related to the evaluation
    of the probative value of the evidence was because she considered that the
    probative value of the proposed questions [was] at best speculative.

[63]

I
    am persuaded that the probative value of the proposed cross-examination was not,
    in fact, speculative. If the cross-examination disclosed other potential causes
    for the complainants pregnancy, the impact would be significant, for it would
    entirely neutralize the Crowns attempt to claim that the pregnancy
    corroborated the sexual assault allegation. On the other hand, if the cross-examination
    failed to disclose other potential causes for the complainants pregnancy, then
    the complainants answers would assist the Crowns theory.

[64]

The
    probative value of the line of questioning itself was not speculative. What was
    speculative was whether R.V.s cross-examination of the complainant would
    succeed in securing the evidence he sought. However, uncertainty of result does
    not deprive a line of questioning of its probative value. In my view, when
    considering probative value, the application judges focus was wrong. She erred
    by effectively inquiring whether there was a foundation for concluding that the
    cross-examination would succeed in exposing other potential causes of the
    complainants pregnancy, instead of whether the line of cross-examination itself
    had probative value.

[65]

In
    sum, the specific instances of sexual activity requirement in s. 276(2)(a)
    does not require accused persons to present the particularized foundation the
    application judge insisted upon. It requires that the proposed evidence or
    cross-examination must be adequately identified to enable the admissibility of
    the evidence to be properly determined, and for the Crown to protect the
    legitimate interests of complainants. R.V.s application did that. The
    application judge therefore erred in finding that his application was not
    capable of meeting the test set out in s. 276(2) because it did not meet the
    specific instances of sexual activity requirement in s. 276(2)(a).

(3)

Did the application judge err in balancing the competing interests?

[66]

Although
    she did not say so overtly, it is evident from reading her decision that the
    application judge had a second reason for her conclusion that R.V.s evidence
    was not capable of meeting the admissibility standards in s. 276(2). In her
    view, R.V.s proposed cross-examination did not have significant probative
    value that is not substantially outweighed by the danger of prejudice to the
    proper administration of justice. In my view, this second basis for rejecting R.V.s
    claim was also in error.

[67]

R.V.
    raises several specific grounds of appeal relating to this determination. It is
    not necessary to address them all to demonstrate that the balancing undertaken
    by the application judge was wrong.

[68]

As
    I have already indicated, the application judge erred by finding the probative
    value of the proposed cross-examination to be speculative and highly
    uncertain, when it was not.

[69]

She
    also erred, in my view, by characterizing the proposed cross-examination as a
    fishing expedition, and exactly the kind of tangent the section was designed
    to prevent. R.V.s proposed cross-examination was neither a fishing
    expedition nor a tangent.

[70]

It
    was not a fishing expedition because R.V. was not asking to engage in a
    vexatious or frivolous attempt to troll to see what potentially useful evidence
    he might snag. The Crown had made a pointed allegation against R.V. that he
    impregnated the complainant during the sexual assault and was relying on that
    pregnancy as corroborative evidence. R.V. was proposing to probe the veracity
    of that allegation by asking relevant questions of the only witness apt to know
    whether that was true. This was not a fishing expedition, and the line of
    questions was certainly not a tangent. It was responsive to an important plank
    in the Crowns case.

[71]

In
    my view, the application judge also erred in finding that, as a substitute for
    the cross-examination he was proposing, R.V. could pursue the alternative
    strategy of cross-examining the complainant as to whether she was truthful in
    her statement that she was a virgin and further what her understanding is of
    the term virgin. Some more factual background is useful to explain this
    error.

[72]

The
    complainants position going into the trial was that she remained a virgin even
    though R.V. impregnated her. In her taped police interview, the complainant said
    that she lost her virginity when she had sex with her boyfriend on September 2,
    2013, two months after the alleged sexual assault. She said that:

we all know when you lose your virginity you have like blood
    spottings and its actually painful and that was actually what happened with me
    that day when I I had when I was having sex with my boyfriend but when when it
    happened with [R.V.] like I didnt it wasnt it like it wasnt painful and like
    I wasnt spotting

[73]

During
    the s. 276 application, the trial Crowns main submission was that R.V. did not
    have to ask the complainant about her other sexual experiences to respond to
    the Crowns claim that he was the father. Citing decisions that hold that
    virginity is a status and not a sexual experience, the trial Crown suggested
    that R.V. could rest content to cross-examine the complainant on her claim that
    she was a virgin at the time of the alleged assault.

[74]

The
    application judge took up this suggestion. She held that R.V. did not need to
    ask the complainant about her sexual experiences because he could challenge the
    complainants paternity claim by using the medical evidence of the gestational
    age of the foetus (a point I will return to), and by cross-examination of the
    complainant as to whether she was truthful in her statement that she was a
    virgin and further what her understanding is of the term virgin.

[75]

In
    my view, the cross-examination envisaged by the application judge was not a meaningful
    substitute for the cross-examination R.V. sought. The invitation to ask the complainant
    whether she was telling the truth about her virginity was a pointless exercise.
    Cross-examination involves posing questions that challenge the testimony that
    has been given. Asking a witness whether they are telling the truth in making a
    claim is effectively no cross-examination at all.

[76]

Asking
    a complainant only about her understanding of the term virgin is equally
    pointless. Exposing the complainants apparent confusion about the meaning of
    virginity would get R.V. nowhere unless he could go on to ask the complainant
    whether she engaged in any other sexual activity capable of impregnating her while
    maintaining her understanding of virginity.

[77]

Indeed,
    in my view the entire premise that R.V. could cross-examine the complainant
    about her claim to virginity without a s. 276 ruling was wrong in law. This
    kind of cross-examination is not an alternative to a s. 276 application. Rather,
    it requires a successful s. 276 application.

[78]

To
    be sure, it is well-settled that a complainant can testify to her virginity
    without triggering s. 276. As explained in
R. v. Pittiman
(2005), 198
    C.C.C. (3d) 308 (Ont. C.A.), [2005] O.J. No. 2672, at para. 33, affirmed 2006
    SCC 9, [2006] 1 S.C.R. 381, evidence of a complainants virginity is a
    question of physical fact, not a sexual experience.

[79]

It
    does not follow, however, that defence challenges to claims of virginity fall
    outside of s. 276. Such a challenge by its nature entails the proposition that
    the complainant has had sexual experiences. Even a binary question about
    virginity, such as, are you telling the truth when you say you were a virgin?
    invites the answer no, which is evidence of sexual experience. Cross-examination
    that challenges claims about the absence of sexual experience falls squarely within
    s. 276.

[80]

The
    leading decision in the area,
R. v. Brother
(1995), 169 A.R. 122
    (C.A.), does not address this issue. There is also nothing in
Pittiman
that says otherwise. Indeed, although
Pittiman
can be read as being
    agnostic on this point, Weiler J.A. did not disagree with the Crowns
    insistence that while the complainant was free to claim virginity, the defence
    had to comply with s. 276 to confront that claim. She simply noted that it may
    be too late to follow the procedure in s. 276 when the complainant offers such testimony
    unexpectedly:
Pittiman
, at para. 37.

[81]

The
    application judge therefore erred in her evaluation of the probative value of R.V.s
    proposed cross-examination. She should have examined the probative value of the
    proposed line of questioning itself instead of requiring R.V. to demonstrate,
    with a particular evidentiary foundation, that his cross-examination was apt to
    succeed in exposing other potential causes of the complainants pregnancy.

[82]

Her
    attempt to find an alternative approach that would reduce the need for the
    proposed cross-examination was also wrong in law. She erred by permitting a cross-examination
    that required a successful s. 276 application while at the same time denying his
    s. 276 application. Although this error did not prejudice R.V., he was
    prejudiced by the application judges error in treating pointless lines of
    questioning as diminishing the importance of the relevant cross-examination that
    R.V. sought.

[83]

Given
    these legal errors, the application judges s. 276 decision is not entitled to
    deference. In my view, the only reasonable outcome in this case would be to
    allow the cross-examination that R.V. sought to conduct.

[84]

The
    probative value of the proposed line of questioning was not only extremely
    high, it was critical to a fair trial in the circumstances of this case. While
    there is no fixed rule, evidence offered in an attempt to rebut the kind of
    claim the Crown made in this case is the paradigm example of where sexual
    experience evidence is apt to be so important that it is likely to be
    admissible. An accused person, met with the allegation that the complainants
    pregnancy confirms his crime because he is the only person who could have caused
    that pregnancy, has a compelling claim to be permitted to confront that
    allegation by cross-examining the complainant. That compelling claim rests solidly
    in the right to make full answer and defence, and in the interests of justice in
    a fair process and a just determination.

[85]

Moreover,
    the probative value of the proposed cross-examination in the case does not
    depend on discriminatory beliefs or biases. And, contrary to the views
    expressed by the application judge, this was not a case where the evidence
    would seem more likely to distort the truth seeking process at the trial than
    to further it. This was a judge alone trial where the trial judge would
    presumably understand the proper use to which the cross-examination evidence
    could be put. Trial judges would also be in a position, through legal training
    and judicial experience, to caution themselves to avoid the risks of discriminatory
    beliefs or biases.

[86]

However,
    there is weight on the other side of the scale as well. I do not agree with R.V.
    that the cross-examination would not significantly intrude on the dignity or
    privacy of the complainant. The prejudice to the personal dignity and privacy rights
    of complainants whenever they are cross-examined in an effort to show that they
    had other sexual experiences is not to be discounted. Such prejudice is real,
    particularly for someone as young as this complainant. Whenever this kind of
    questioning is permitted, there is a risk that other complainants will be
    discouraged.

[87]

Still,
    the risk of prejudice to both the complainant and the larger administration of
    justice in this case does not substantially outweigh the significant probative
    value of the proposed cross-examination. The urgency of vetting the Crowns
    paternity allegation during trial was simply too great, and there was nothing
    in the circumstances of this case to diminish it. Meanwhile, the prejudice to
    the administration of justice of permitting the cross-examination, although
    real, was not intense enough to overcome that need. The proposed
    cross-examination had to be permitted under s. 276, and the application judge
    erred in failing to do so.

(4)

Did this error cause a substantial wrong or miscarriage of justice?

[88]

Despite
    the application judges ruling, counsel for R.V. managed to suggest to the
    complainant that she was not a virgin when the alleged sexual assault occurred.
    He did so under the guise of cross-examining her about her claimed virginity.
    This question violated the application judges ruling and should not have been
    asked.

[89]

The
    complainant also provided extensive evidence, both in her evidence in-chief and
    during cross-examination, about her understanding of virginity, the physiology
    and function of the hymen, and what intercourse entails.

[90]

The
    Crown relies upon all of this testimony to suggest that R.V. effectively
    managed to conduct the cross-examination he sought. It says that even if the
    application judge erred in her ruling, no miscarriage of justice occurred.

[91]

I
    disagree. While counsel for R.V. did skirt the ruling by indirectly suggesting
    to the complainant that she was not a virgin when the alleged sexual assault
    occurred, he was not able to probe her answer, or ask her about any particular
    sexual experiences she may have had that were capable of impregnating her during
    the relevant period. What occurred was not a fair substitute for the
    cross-examination that should have been allowed. In my view, a substantial
    wrong or miscarriage of justice occurred.

B.

Did the s. 669.2 Trial Judge Err in Holding that the Application Judges
    s. 276 Ruling was Binding on Him?

[92]

After
    the application judge was unable to continue, R.V. immediately renewed his s.
    276 application before the s. 669.2 trial judge. The application document R.V. filed
    was the same, and none of the supporting facts had changed.

[93]

The
    trial judge refused to re-open the s. 276 ruling. He said, My finding is the
    ruling [] on the 276 application shall stand and the defence is not entitled
    to re-litigate it. He offered alternative reasons for his decision.

[94]

His
    main reason for refusing to entertain the application was that s. 669.2 does
    not confer discretion on a s. 669.2 trial judge to permit re-litigation of
    matters settled by the judge who was unable to continue. He expressed his
    conclusion on the effect of s. 669.2 as follows: I find that [the application judges]
    section 276 ruling [] is binding, and the matter will not be re-heard.

[95]

He
    said, in the alternative:

In any event, even if I had the discretion to re-hear the 276
    application, I would decline to do so. The application was fully argued and
    dismissed at a time that was several months before the issue that gave rise to
    the [application judges departure] arose. The material filed on the 276
    application now is the same as it was before [the application judge]. The
    evidence is the same, the arguments would be the same, and there is no change
    in circumstances that might prompt a re-hearing.

[96]

I
    take no issue with the trial judges alternative ruling. In my view, however, his
    conclusion that the application judges decision was binding on him was wrong
    in law.

[97]

It
    is unnecessary in coming to this conclusion to revisit the entirety of the
    clear and impressive statutory construction analysis undertaken by the trial
    judge. The jurisdiction of a s. 669.2 trial judge to reconsider prior rulings derives
    not from s. 669.2, but from that judges status as the trial judge. When a
    judge becomes seized of a matter under s. 669.2, he becomes the trial judge for
    all purposes. Since he continues the trial as the trial judge, the s. 669.2 trial
    judge is given the same authority that the replaced trial judge had. As such,
    he has the same power to reconsider prior rulings made within that trial by the
    replaced trial judge, when it is in the interests of justice to do so.

[98]

The
    power of a trial judge to reconsider earlier rulings made within the trial they
    are presiding over is clear. The relevant principles are as follow.

[99]

The
    principles of
res judicata
do not apply during a hearing to decisions
    reached by a judge during that hearing, and a judge is not
functus officio
when a
voir dire
has ended:
R. v. Farrah (D.)
, 2011 MBCA 49,
    268 Man. R. (2d) 112, at paras. 22-23. As Sopinka J. affirmed in
R. v.
    Adams
, [1995] 4 S.C.R. 707, at para. 29, judges who are not
functus
    officio
have jurisdiction to reconsider and vary the orders that are made within
    a trial, in the interests of justice. Justice Sopinka said, at para. 30:

As a general rule, any order relating to the conduct of a trial
    can be varied or revoked if the circumstances that were present at the time the
    order was made have materially changed. In order to be material, the change
    must relate to a matter that justified the making of the order in the first
    place.

See also:
R. v. Calder
, [1996] 1 S.C.R. 660,
    at para. 21;
R. v. La
, [1997] 2 S.C.R. 680, at para. 28;
R. v.
    Morin
(1997), 143 D.L.R. (4th) 54 (Ont. C.A.), 32 O.R. (3d) 265, at p. 60;
    and
R. v. H.B.
, 2016 ONCA 953, 345 C.C.C. (3d) 206, at para. 51.

[100]

Indeed, this
    court has held that a trial judge can change their mind up until the point when
    the accused has been sentenced:
R. v. Lessard
(1976), 30 C.C.C. (2d)
    70 (Ont. C.A.).

[101]

There are, of
    course, limits on the authority to reconsider. It should not be used without
    circumspection because of the interest in finality and clarity. Nor can reconsideration
    produce unfairness:
R. v. Montoute
, [1991] A.J. No. 74 (C.A.), 62
    C.C.C. (3d) 481, at p. 488.
[2]
For example, it may not be appropriate to reconsider rulings that have been
    relied upon by one of the parties in forming a trial strategy, unless the prejudice
    incurred in reliance on the ruling can be remedied:
R. v. Underwood
,
    [1998] 1 S.C.R. 77;
R. v. MacDonald
(2000), 49 O.R. (3d) 417 (C.A.)
per
    curiam
; and
R. v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at
    paras. 99-104.

[102]

The most common
    circumstance where it may be in the interests of justice to reconsider rulings
    is where facts have materially changed:
Adams
, at para. 30;
La
,
    at para. 28;
R. v. Savojipour
(2006), 79 O.R. (3d) 418 (C.A.), 205
    C.C.C. (3d) 533, at para. 15
per curiam
; and
R. v. Le
, 2011
    MBCA 83, 270 Man. R. (2d) 82, at para. 123, leave to appeal refused [2011]
    S.C.C.A. No. 526.

[103]

However, this is
    not the only circumstance. Rulings have also been reopened where a party has
    misunderstood the scope of an admission, or because counsel was unaware of
    relevant evidence at the time: see the discussions summarized in
R. v. I.C.
,
    2010 ONSC 32, 249 C.C.C. (3d) 510, at paras. 151-63. A trial judge may also correct
    a decision that they discover was made in error:
R. v. Morgan
, [1983]
    A.J. No. 742 (Q.B.), at paras. 12 and 15;
R. v. Williams
, 2013 ONSC
    3100, 300 C.C.C. (3d) 240;
Setak Computer Services Corporation Ltd. v.
    Burroughs Business Machines Ltd. et al.
(1977), 76 D.L.R. (3d) 641 (Ont.
    Sup. Ct.), 15 O.R. (2d) 750, at p. 644.

[104]

It would make no
    sense, in my view, for s. 669.2 trial judges to be unable to respond in these
    ways in the interests of justice because they are bound by decisions of the
    judge they have replaced.

[105]

In my view, s.
    669.2 does not impel such a conclusion. It is true that s. 669.2 does not
    contain an express reconsideration power similar to the one found in s. 653.1 relating
    to mistrials. The primary function of s. 653.1, however, is to create a new
    rule that enables pre-trial rulings that have been made in a mistried case to apply
    at the new trial. This new rule was adopted in the interests of efficiency, to
    preserve prior rulings where it is reasonable to do so. Having provided for the
    continued application of pre-trial rulings, the section goes on to make clear
    that the inherent power of trial judges to reconsider earlier decisions that I
    have described above has not been removed. Section 653.1 provides:

In the case of a mistrial, unless the court is satisfied that
    it would not be in the interests of justice, rulings relating to the disclosure
    or admissibility of evidence or the
Canadian Charter of Rights and Freedoms
that were made during the trial are binding on the parties in any new trial if
    the rulings are made  or could have been made  before the stage at which the
    evidence on the merits is presented.

[106]

Simply put, the
    inclusion in s. 653.1 of a discretionary power to reconsider does not signal
    the exclusion of a power to reconsider for trial judges acting under the
    authority of s. 669.2.

[107]

Nor does
    reconsideration by the trial judge of a decision made in the same proceeding or
    trial by another judge constitute an impermissible collateral attack on the
    earlier decision:
R. v. Litchfield
, [1993] 4 S.C.R. 333, at pp. 349-50;
    and
R. v. Allen
(1996), 110 C.C.C. (3d) 331 (Ont. C.A.), at pp. 343-44
per
Doherty J.A.

[108]

In my view, the
    trial judge therefore erred in concluding that, as a s. 669.2 judge, he was
    bound by the application judges s. 276 decision.

[109]

Ordinarily this
    error would not matter because the trial judges alternative, discretionary
    basis for refusing reconsideration was sound. At the time of the renewed s. 276
    application there had been no change of circumstances or other reason to revisit
    the prior ruling.

[110]

Yet circumstances
    did later change in two material ways. When this occurred, defence counsel did
    not ask to have the s. 276 ruling re-opened. This is understandable. The trial
    judges ruling that he was bound by the application judges s. 276 decision as
    a function of s. 669.2 made any such request futile. In my view, a lawyer faced
    with the trial judges ruling that they lack jurisdiction cannot fairly be
    expected to ask the trial judge to act
ultra vires
because of a change
    in factual circumstances. Thus I am persuaded that the trial judges error
    resulted in a substantial wrong or miscarriage of justice by foreclosing subsequent
    requests for reconsideration on the s. 276 decision in circumstances where
    reconsideration was due.

[111]

The material change
    of circumstances that featured most centrally in the parties submissions related
    to the estimated gestational age of the foetus on September 18, 2013  being 13
    weeks and 5 days.

[112]

It is evident
    that during the s. 276 hearing, both defence counsel and the application judge
    proceeded on the misunderstanding that the gestational age was calculated from the
    date of conception, in this case producing a conception date of June 14, 2013,
    give or take 5 to 7 days. Since the alleged offence occurred on July 1, 2013,
    the estimated gestational age of the foetus erroneously appeared to be
    exculpatory.

[113]

Indeed, the application
    judge relied on the misunderstood exculpatory potential of this information as
    providing R.V. with a sufficient, alternative way to challenge the Crowns
    paternity theory, without having to engage in a sexual experience
    cross-examination:

But this [challenge] can be accomplished in two ways. First,
    the gestational age of the foetus on September 18
th
, 2013 was
    estimated at 13 weeks, 5 days. This may not accord with the date of the alleged
    offence.

[114]

However, when
    Dr. Montgomery testified at trial, she explained that the gestational age of
    the foetus is actually calculated from the estimated date of the last menstrual
    period, and not from the date of conception. She further testified that the
    date of conception is usually 14 days after the date of the last menstrual
    period, give or take 5 to 7 days. In the complainants case, this meant that
    she was likely to have become pregnant on or about June 28, 2013. Meanwhile, the
    sexual assault was alleged to have occurred on July 1, 2013. The gestational
    age evidence therefore was actually incriminating  not exculpatory. Indeed,
    the trial judge relied upon the gestational age evidence in convicting R.V. because
    this evidence squarely puts the time of conception, with as much precision as
    possible, at or about the time [the complainant] alleged the sexual assault
    occurred.

[115]

In the result,
    one of the palliatives relied upon by the application judge for denying the s.
    276 cross-examination application, was undercut during trial. This, in my view,
    was a material change in circumstance that warranted the trial judges reconsideration
    of the earlier ruling.

[116]

There was
    another change in circumstance that arose when Dr. Montgomery testified. The
    materiality of this change was driven home with the complainants evidence
    relating to her sexual experience with her boyfriend.

[117]

There was no
    indication during the s. 276 application that the Crown intended to lead evidence
    about the complainants sexual experience with her boyfriend at trial. Its
    position was that, while it could not establish actual penetration by R.V. during
    the alleged sexual assault, the testimony of the complainant that she was a
    virgin when she was allegedly sexually assaulted, coupled with the nature of
    the sexual assault, supported the Crowns theory that R.V. impregnated her and
    that the pregnancy confirmed the sexual assault.

[118]

Yet during trial,
    evidence about the complainants sexual experience on September 2, 2013 was
    presented by the Crown, first by Dr. Montgomery and then by the complainant.
    Dr. Montgomery explained how the pregnancy could not have occurred during the
    first ever sexual experience, or sexual active, sexual intercourse [] on the
    2
nd
of September, as described by the complainant.

[119]

The complainant
    then provided evidence about this September 2, 2013 sexual experience during
    the Crowns examination-in-chief. The Crown asked her what she understood
    sexual intercourse to mean. She described intercourse and testified that it
    would cause pain and spotting for some women. He then asked her, Okay. And so,
    when you indicate that youre asked that prior to September 2
nd
,
    were you of the view that you had sexual intercourse prior to that? The
    complainant answered without linking her answer to the testimony she had just
    given about pain and spotting. The trial Crown then asked again, Was it your
    understanding if you had, based on the situation you had? She replied, I had
    told [Dr. Montgomery] I wasnt sure if it had happened or not on July 1
st
,
    but that I had hoped, and that I had thought it didnt, because of the
    spottings and pain I was in on September 2
nd
.

[120]

Unequivocally,
    this was testimony drawn by the Crown from the complainant about sexual
    activity on an occasion other than the alleged offence.

[121]

I do not think I
    am being unfair in suggesting that the Crown was seeking this testimony about
    her subsequent spotting and pain during sexual intercourse with her boyfriend in
    an effort to explain how the complainant persisted in her belief that she was
    still a virgin despite her pregnancy. Regardless of whether that is so, the
    fact that the Crown presented other sexual experience evidence as part of its
    case is material in a s. 276 application. The Crowns readiness to lead such
    evidence is relevant in weighing the prejudice that would be caused by defence
    questioning about prior sexual experiences, and could properly have invited an
    application to reopen the earlier s. 276 ruling.

[122]

In my view, the
    trial judges erroneous conclusion that he was bound by the application judges
    s. 276 ruling mattered. It had the effect of rendering future meritorious applications
    to reconsider futile. In my opinion, this is enough to require that R.V.s conviction
    be set aside.

CONCLUSION

[123]

I would allow
    the appeal for the reasons provided, set aside R.V.s convictions, and order a
    new trial.

Released: June 13, 2018 (D.W.)

David M. Paciocco J.A.

I agree. J. MacFarland J.A.

I agree. David Watt J.A.

[1]
For reasons I will explain, t
wo judges participated
    in R.V.s trial. The first judge heard and ruled on the initial s. 276
    application but was subsequently unable to continue with the trial. A second
    judge took over. To avoid confusion between the two judges I will refer to the
    first judge as the application judge and the second as the trial judge.

[2]

Montoute
was overruled on the separate issue
    of its interpretation of s. 8 of the
Charter
following
R. v.
    Edwards
, [1996] 1 S.C.R. 128 and
R. v. Alcantara
, 2015 ABCA 259, 606
    A.R. 313, at para. 217.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reyes, 2018 ONCA 607

DATE: 20180629

DOCKET: M49090 (C64769)

Sharpe, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Althea Reyes

Appellant

Althea Reyes, acting in person and appearing by
    teleconference

Andrew Hotke, for the respondent

Heard: June 28, 2018

REASONS FOR DECISION

[1]

On December 29, 2017 the appellant, Althea Reyes, filed a notice of
    appeal from the order of Forestell J. dated December 22, 2017.

[2]

On January 12, 2018 the appellant filed a motion in this appeal, in
    writing, seeking relief in respect of motions scheduled to be heard in the
    Ontario Court of Justice.

[3]

Watt J.A dismissed that motion by reasons dated February 14, 2018: 2018
    ONCA 156. Those reasons describe the history of this matter. At para. 15, Watt
    J.A. described the issue raised by the appeal to this court pursuant to s.
    784(1) of the
Criminal Code
: the jurisdiction of the trial judge to
    issue a bench warrant to compel the personal attendance of the accused in
    summary conviction proceedings. In other words, the issue is whether the trial
    judge exceeded her discretionary authority under s. 800(2) of the
Criminal
    Code
in issuing the warrant.

[4]

On February 16, 2018 the Superior Court of Justice transferred to this
    court the materials from the proceeding before Forestell J.

[5]

Yet, the appellant did not perfect her appeal.

[6]

Instead, on April 18, 2018 the appellant filed a further motion in
    writing. That motion was placed before this panel for an oral hearing.

[7]

In the motion, the appellant seeks an order compelling the attendance of
    three individuals to attend discovery and provide testimony because they
    failed to comply with summons to attend the hearing of the appellants
    application before Forestell J. Two of the individuals are employees of the
    Ontario Court of Justice. The third, Ms. Altamira, allegedly shared a taxi with
    the appellant on September 15, 2017, the date the appellant was required to attend
    in the proceedings before the Ontario Court of Justice.

[8]

According to the appellant, the three individuals can offer evidence on
    the issue of whether the appellant appeared in the proceeding before the
    Ontario Court of Justice on September 15, 2017 around 3:00 p.m.

[9]

Although under s. 683(1)(b) of the
Criminal Code
an appellate
    court can order the examination of a witness, it may do so only in respect of
    evidence that may be relevant to an issue on a pending appeal:
R. v. Sihota
,
    2009 ONCA 770, 249 C.C.C. (3d) 22, at paras. 13-14.

[10]

On
    the present motion, the evidence the appellant seeks by way of examination of
    the three individuals has no relevance to the issue raised on this appeal
    concerning the jurisdiction of the Ontario Court of Justice trial judge to
    issue the bench warrant. The evidence concerns events that took place after the
    trial judge issued the bench warrant and therefore cannot assist in determining
    whether the trial judge had the jurisdiction to issue the bench warrant. As
    well, we observe that the materials before us, which include the appellants
    application record in the Superior Court of Justice, do not include any sworn
    statement from the appellant that she attended the Ontario Court of Justice on
    the afternoon of September 15, 2017. Accordingly, we dismiss the appellants
    motion.

[11]

The
    respondent Crown requests an order that the appellant not be permitted to bring
    further motions or applications in this appeal without the permission in
    writing of a member of this court. We are not persuaded that would be the most
    effective way to manage this appeal. Instead, we shall give directions
    concerning the perfection of the appeal.

[12]

On
    May 8, 2018, the appellant filed the transcript of the proceeding before
    Forestell J. On the most generous reading of
Criminal Appeal Rules
,
    the time for perfecting this appeal has long passed. We see no reason why the
    appellant cannot perfect her appeal. Accordingly, we order her to do so no
    later than Friday, August 31, 2018.

[13]

The
    appellant shall not be entitled to any extensions of that date. The appeal file
    shows that instead of pursuing her appeal, the appellant has brought two
    motions seeking relief that has no relevance to the appeal.

[14]

Consequently,
    if the appellant does not perfect her appeal by Friday, August 31, 2018, her
    appeal shall be dismissed, without further notice to her.

Robert J. Sharpe J.A.
David Brown J.A.
David M. Paciocco J.A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order prohibiting disclosure of a witness identify
    has been made in this proceeding pursuant to s. 486.31 of the
Criminal
    Code
and shall continue.  This section of the
Criminal Code
provides that:

486.31 (1) In any
    proceedings against an accused, the judge or justice may, on application of the
    prosecutor in respect of a witness, or on application of a witness, make an
    order directing that any information that could identify the witness not be
    disclosed in the course of the proceedings if the judge or justice is of the
    opinion that the order is in the interest of the proper administration of
    justice.

(2) The judge or
    justice may hold a hearing to determine whether the order should be made, and
    the hearing may be in private.

(3) In
    determining whether to make the order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) the nature of the offence;

(c) whether the witness needs the order for their security or to
    protect them from intimidation or retaliation;

(d) whether the order is needed to protect the security of anyone
    known to the witness;

(e) whether the order is needed to protect the identity of a
    peace officer who has acted, is acting or will be acting in an undercover
    capacity, or of a person who has acted, is acting or will be acting covertly
    under the direction of a peace officer;

(e.1) whether the order is needed to protect the witness's
    identity if they have had, have or will have responsibilities relating to
    national security or intelligence;

(f) society's interest in encouraging the reporting of offences
    and the participation of victims and witnesses in the criminal justice process;

(g) the importance of the witness' testimony to the case;

(h) whether effective alternatives to the making of the proposed
    order are available in the circumstances;

(i) the salutary and deleterious effects of the proposed order;
    and

(j) any other factor that the judge or justice considers
    relevant.

(4) No adverse
    inference may be drawn from the fact that an order is, or is not, made under
    this section.

S.C. 2015, c.
    20, s. 38(3).

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ruthowsky, 2018 ONCA 552

DATE: 20180613

DOCKET: M49204 (C65389)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent in Appeal)

and

Craig Ruthowsky

Applicant (Appellant)

Gregory Lafontaine, for the applicant

Michael Perlin, for the respondent

Heard: June 12, 2018

On an application for bail pending appeal from the
    convictions entered on April 25, 2018 by Justice Robert A. Clark, sitting with
    a jury, and from the sentence imposed on May 29, 2018.

ENDORSEMENT

OVERVIEW

[1]

After a 25 day jury trial, Mr. Craig Ruthowsky was convicted of bribery;
    attempt to obstruct justice; criminal breach of trust; and trafficking cocaine.
    He was sentenced to 13 years imprisonment less 6 months credit.

[2]

Mr. Ruthowsky is appealing both his conviction and his sentence. He
    brings this application for bail pending appeal.

[3]

The applicable law is not in dispute. Having been convicted, Mr. Ruthowsky
    is no longer presumed to be innocent. In order to avoid detention pending his
    appeal, the burden is on Mr. Ruthowsky to establish that he should receive bail
    pending appeal, under
Criminal Code
, s. 679(3):
R. v. Oland
, 2017
    SCC 17, [2017] 1 S.C.R. 250. He must show, on the balance of probabilities,
    that: (1) his appeal is not frivolous; (2) he will surrender himself into
    custody in accordance with the terms of any release order; and (3) his
    detention is not necessary in the public interest.

[4]

Mr. Ruthowsky has not discharged that burden. I am persuaded that his
    appeal contains grounds that are not frivolous, that he will more probably than
    not surrender himself into custody, and that he does not pose a risk to the safety
    of the community. However, I am not satisfied that a reasonable member of the
    public would conclude that his detention pending appeal is not necessary in the
    public interest. This is because he has been convicted of serious offences that
    were committed in extremely aggravated circumstances, and because his grounds
    of appeal do not clearly surpass the not frivolous threshold. In these
    circumstances, a reasonable member of the public would conclude that the
    interest in the immediate enforcement of his lengthy sentence outweighs the
    interest in releasing him pending the appeal of his conviction and sentence.

ANALYSIS

A.

HAS MR. RUTHOWSKY SHOWN THAT HIS APPEAL IS NOT FRIVOLOUS?

[5]

An appeal is frivolous if it does not give rise to arguable issues:
R.
    v. Manaserri
, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38. This first
    precondition therefore presents a very low bar:
Oland
, at para. 20.
    The Crown does not press its argument that Mr. Ruthowskys appeal is frivolous.
    Its central position is that his appeal is weak, an important consideration in
    deciding whether Mr. Ruthowsky has met his burden of showing that his detention
    is not necessary in the public interest. I will therefore consider the strength
    of the appeal when determining if Mr. Ruthowsky has met the third precondition
    to his release.

B.

HAS MR. RUTHOWSKY SHOWN THAT HE WOULD SURRENDER HIMSELF?

[6]

Mr. Ruthowsky has complied with the strict terms of his pre-trial
    release for close to three years. Although he now has greater incentive to flee
    given his conviction and the heavy sentence imposed, the Crown concedes that
    this second precondition to release is met. It accepts that although there are
    flight risks that should not be disregarded in an overall assessment of his
    application, Mr. Ruthowsky has established that, if released, he would surrender
    himself into custody as required by a release order.

C.

HAS MR. RUTHOWSKY SHOWN THAT HIS DETENTION IS NOT REQUIRED IN THE PUBLIC
    INTEREST?

[7]

There are two components to the public interest requirement: public
    safety and public confidence in the administration of justice:
Oland
, at
    para 23;

and
R. v. Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont.
    C.A.), at pp. 47-48.

[8]

As the term suggests, the public safety component has to do with the
    protection and safety of the public should an appellant be released pending
    appeal. Appropriately, the Crown has not made this a focus of concern in its
    arguments. Mr. Ruthowskys pre-trial release was based on the premise that his
    behaviour could be controlled in the community, with conditions. Nothing has
    changed in this regard. I am satisfied that Mr. Ruthowskys release pending
    appeal would not imperil public safety.

[9]

Instead, the Crown focuses on the effect that Mr. Ruthowskys release
    would have on public confidence in the administration of justice as he has now been
    convicted. This consideration requires a balance between two competing
    interests  the enforceability interest, and the reviewability interest.

[10]

The
    enforceability interest recognizes that, as a general rule, it is important to
    respect and immediately enforce judgments. It can harm the repute of the
    administration of justice in the eyes of reasonable members of the public if
    sentences are postponed pending appeal, particularly where the appellant has
    been convicted of serious offences and the grounds of appeal are not strong.

[11]

On
    the other hand, those who are convicted are entitled to a meaningful review
    process. Denying bail pending appeal can result in individuals spending
    significant time in custody, only to have their convictions be subsequently
    overturned on appeal, something that would also disturb reasonable members of
    the public. The reviewability interest therefore agitates in favour of release
    before what may be pointless detention occurs.

[12]

The
    list of factors to be considered in evaluating the impact of a bail pending
    appeal decision on public confidence in the administration of justice is not
    closed. It is helpful, however, to pay regard to the list of factors found in
Criminal
    Code
, s. 515(10):
Oland
, at para. 32. This section relates to
    whether pre-trial detention is necessary to maintain confidence in the
    administration of justice, but it identifies central considerations in gauging
    the impact of bail pending appeal decisions on public confidence in the
    administration of justice. These considerations include: (1) the strength of
    the prosecution case, measured through the strength of the grounds of appeal;
    (2) the gravity of the offences; (3) the circumstances surrounding the
    commission of the offences; and (iv) the fact that the accused is liable for a
    lengthy term of imprisonment.

[13]

Mr.
    Ruthowsky argues that his appeal is extremely strong and undercuts his entire
    conviction, supporting his release notwithstanding the gravity of the offences for
    which he was convicted. He points out that bail pending appeal has been granted
    in cases involving the most serious of offences, including murder in
Oland
.
    Bail pending appeal was also initially granted in
R. v. Forcillo
, 2016
    ONCA 606, a high profile case involving a police officer convicted of attempted
    murder.

[14]

The
    Crown maintains that given the weakness of his grounds of appeal, the
    seriousness of his crimes, the aggravating features identified by the trial
    judge, the lengthy period of incarceration, and the residual risk that Mr.
    Ruthowsky could flee, the enforcement interest must be given priority.

(1)

The Strength of the Prosecution Case/Grounds of Appeal

[15]

The
    strength of the prosecution case under s. 515(10)(c)(i) translates, in the bail
    pending appeal context, into the strength of the grounds of appeal:
Oland
,
    at para. 40. At this stage, an inquiry into the strength of the grounds of
    appeal cannot rise above a preliminary assessment, based on judicial knowledge
    and experience, since it is not realistic to hear full argument on the grounds
    of appeal with the benefit of full transcripts. At this juncture, I am to
    consider the general legal plausibility of the grounds of appeal and their
    foundation in the record:
Oland
, at para. 44.

[16]

Mr.
    Ruthowsky has raised numerous grounds of appeal in his notice of appeal, but
    focused on two in oral submissions. I will begin with those two specific grounds
    before discussing the rest.

(a)

Reasonable Apprehension of Bias

[17]

Mr.
    Ruthowsky appeals on the basis that the trial judge demonstrated a reasonable apprehension
    of bias in the way he conducted the trial. Thus denying Mr. Ruthowsky a fair and
    impartial trial. He says that the trial was conducted in an atmosphere of
    unabated oppression towards the defence.

[18]

To
    establish this, Mr. Ruthowsky relies primarily on an information and belief
    affidavit included in the application record. The affiant, a law student who
    works for Mr. Lafontaine (Mr. Ruthowskys trial and appeal lawyer), records
    observations made at trial by Mr. Ruthowskys lawyers, as well as by Mr.
    Ruthowskys sister-in-law. The hearsay reported by the law student describes
    the judge disparaging the defence case or betraying his disapproval of the
    defence by variously shaking his head and rolling his eyes, demonstrating
    impatience or disapproval through his body language, huffing and scoffing,
    scowling, sighing loudly, glaring and appearing visibly annoyed, angry,
    frustrated, or looking disdainfully or with apparent disapproval.

[19]

Mr.
    Ruthowsky also relies on the trial record, which he says shows that the trial
    judge demonstrated impatience with the defence. Mr. Ruthowsky further claims
    that the trial judge assisted the Crown by laying out the allegations
    supporting each count that he felt had been addressed in Mr. Ruthowskys
    evidence, thereby providing the Crown with a roadmap for cross-examination.

[20]

Finally,
    Mr. Ruthowsky relies on the manner in which he was sentenced. He claims that
    the trial judge subjected him, gratuitously, to a harsh three hour dressing
    down in which the trial judges personal revulsion for Mr. Ruthowsky was
    palpable, before imposing an unfit sentence in excess of what the Crown was
    seeking.

[21]

Reasonable
    apprehension of bias based on misconduct by a trial judge is a difficult ground
    of appeal. There is a strong presumption of judicial impartiality and a heavy
    burden on a party who seeks to rebut this presumption:
R. v. Dowholis
,
    2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. See also
Yukon Francophone
    School Board, Education Area #23 v. Yukon (Attorney General)
, 2015 SCC 25,
    [2015] 2 S.C.R. 282, at para. 25. As the Supreme Court held
per curiam

in
Wewaykum Indian Band v. Canada
, 2003 SCC 45, [2003] 2 S.C.R.
    259, at para. 59, the presumption of impartiality carries considerable weight,
    and the law should not carelessly evoke the possibility of bias in a judge,
    whose authority depends upon that presumption.

[22]

The
    evaluation of whether a reasonable apprehension of bias has been created is
    context-driven, influenced not only by the conduct of the trial judge, but the
    context in which that conduct occurred. As this courts decision in
R. v.
    Hungwe
, 2018 ONCA 456 demonstrates, a conviction appeal based on judicial
    bias can succeed even though the underlying proceeding is a jury trial  and
    thus where it is the jury and not the judge that determines guilt. The separation
    of functions between judge and jury can, however, present additional challenges
    in reasonable apprehension of bias appeals relating to the trial judge:
R.
    v. Snow
(2004), 73 O.R. (3d) 40 (C.A.), 191 O.A.C. 212.

[23]

It
    would not be appropriate to discount the merits of Mr. Ruthowskys reasonable
    apprehension of bias appeal based solely on such generic observations. There
    are, however, particularized and significant impediments to this ground of
    appeal that materially reduce the chances that this appeal will succeed.

[24]

For
    example, in this case, the jury was directed to decide the case on the
    evidence, based on their own opinions.

[25]

More
    importantly, there are imposing impediments to this ground of appeal that arise
    from the failure of defence counsel to object, and the absence of an
    evidentiary record at trial confirming the allegations now being made about the
    trial judges demeanour. This failure to contemporaneously document in open
    court the trial judges impugned conduct in the record creates at least three
    problems.

[26]

First,
    as this court confirmed in
R. v. Nero
, 2016 ONCA 160, 334 C.C.C. (3d)
    148, at para. 33, at least as a general rule, allegations of bias or a
    reasonable apprehension of bias should be advanced as soon as it is reasonably possible
    to do so. This did not occur here.

[27]

Second,
    as reasonable apprehension of bias was not raised as an issue at trial, it
    becomes a new argument sought to be raised on appeal. It is therefore unclear whether
    this ground of appeal will even be allowed to proceed:
R. v. Perka
,
    [1984] 2 S.C.R. 232, at p. 240
per

Dickson J.; and
R. v.
    Brown
, [1993] 2 S.C.R. 918, at p. 923
per
LHeureux-Dubé J.
    (dissenting). This court has held that where a new issue is raised for the
    first time on appeal, the burden falls on the party raising it to demonstrate
    that all of the facts necessary to address the proposed issue are fully before
    the court, that the failure to raise the issue was not tactical, and that the
    refusal to hear the argument would result in a miscarriage of justice:
R.
    v. Reid
, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 42-44.

[28]

It
    is not clear that Mr. Ruthowsky can discharge that burden. Crown arguments made
    before me raise concerns about the absence of a fair and reliable evidentiary
    record, as a result of the failure to object during the trial. The Crown also
    makes a weighty case that the failure to raise the bias issue at trial was a tactical
    decision. Finally, the Crown claims that the failure to object created
    irreparable prejudice, since, had there been a meritorious objection, the trial
    judge could have provided a pointed mid-trial direction and a final direction
    to the jury not to be influenced by his behaviour:
Snow
, at paras.
    48-49.

[29]

Third,
    this ground of appeal depends, in material part, on a successful fresh evidence
    application. Yet the failure to object during the trial has created problems
    for the defence in meeting the
Palmer

test:
Palmer v. The
    Queen
, [1980] 1 S.C.R. 759, at p. 775. The facts claimed in the
    information and belief affidavit now being relied upon could arguably have been
    made part of the trial record with due diligence, and the second-hand opinion
    evidence from interested observers about the trial judges demeanour is apt to
    be found to be insufficiently reliable to gain admission.

[30]

There
    are therefore imposing hurdles to the success of this ground of appeal. As a
    result, I cannot agree with Mr. Ruthowsky. This is not a ground of appeal that
    clearly surpasses the not frivolous threshold.

(b)

Legal Errors in the Trafficking Conviction

[31]

In
    this case, the trial judge made findings of fact during sentencing, pursuant to
Criminal Code
, s. 724(2)(b). Mr. Ruthowsky submitted in oral argument
    that the trial judge erred by finding that he aided the offence of drug
    trafficking by arranging, on behalf of a drug dealer, for a superior cutting
    agent to be identified through lab testing and thereby increasing the drug
    dealers profits. Mr. Ruthowsky claims that this is not an appropriate basis
    for liability, and that, even if it was, the trial judge erred by treating this
    singular act as aiding ongoing drug trafficking activities.

[32]

In
    my view, this ground of appeal is without merit. Assisting a known drug dealer
    in the selection of a cutting agent to be used in trafficking narcotics
    constitutes aiding the offence of narcotics trafficking. The law does not
    require advance knowledge of the specific acts of trafficking that will occur.
    Moreover, this was not the only basis for Mr. Ruthowskys narcotics trafficking
    conviction. The trial judge also found that Mr. Ruthowsky assisted a known drug
    trafficker by advising him of how to avoid being caught trafficking.

(c)

Remaining Grounds in the Notice of Appeal

[33]

I
    now turn to the remaining grounds of appeal in Mr. Ruthowskys notice of appeal
    that did not feature during oral argument.

[34]

The
    first ground in the notice of appeal is that the trial judge erred in
    permitting the Crown to adduce evidence from a Crown witness that the appellant
    had twice identified a confidential informant to the witness, without permitting
    the informants identity to be disclosed. It is Mr. Ruthowskys position that,
    without disclosing the informants identity, it was not possible for him to
    cross-examine that witness effectively.

[35]

This
    ground of appeal, while arguable, is not strong. Informer privilege is a fixed
    rule of law. In order to overcome that privilege, an accused person must
    persuade a judge that their innocence is at stake unless the privilege is set
    aside:
R. v. Liepert
, [1997] 1 S.C.R. 281, at para. 20;
Named
    Person v. Vancouver Sun
, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 29;
    and
R. v. Durham Regional Crime Stoppers Inc.
, 2017 SCC 45, [2017] 2
    S.C.R. 157, at para. 11. I note that the defence did not object to the evidence
    being led, or bring an application to disclose the confidential informers
    privilege during trial. This makes an appeal on this issue difficult to
    maintain.

[36]

The
    second ground of appeal identified in the notice of appeal is that the trial
    judge erred in permitting the Crown to expand the appellants scope of
    potential liability beyond what was contemplated when the prosecution began. In
    other words, Mr. Ruthowsky claims that the Crown changed its theory about how
    the charged offences occurred. Mr. Ruthowsky argues that this made it more
    difficult to defend the charges. This is an arguable ground of appeal, but it,
    too, is not without its challenges. The Crown is not bound to prove a case
    according to any particular factual or legal theory. Unless the right of the
    accused to make full answer and defence is compromised by doing so, the Crown
    is free to rely on different theories of liability that are rooted in the
    evidence. To succeed, Mr. Ruthowsky will have to show that a change in the Crowns
    theory occurred, and that it prejudiced his ability to defend himself. However,
    no specific evidence of such prejudice been offered in the application record.

[37]

The
    third ground of appeal identified in the notice of appeal is that the trial
    judge erred in failing to give counsel the opportunity to review hundreds of
    pages of new disclosure produced at trial. Based on the material before me, it appears
    that the trial judge ultimately ruled that defence counsel should proceed with
    his cross-examination, but would be entitled to an adjournment when he got to
    the new documents in his questioning of the witness. It appears that is what
    happened. Accordingly, I do not believe this to be a strong ground of appeal.

[38]

The
    fourth ground of appeal in the notice of appeal raises issues with the jury
    charge.

[39]

The
    first jury direction complaint relates to the failure by the trial judge to
    instruct the jury as suggested in
R. v. Starr
, 2000 SCC 40, [2000] 2
    S.C.R. 144, at para. 242, that proof beyond a reasonable doubt falls closer to
    absolute certainty than proof on the balance of probabilities. Although some
    judges direct juries in this way,
Starr

has not been
    interpreted authoritatively as requiring that this exact form of direction be
    given. While the
Canadian Criminal Jury Instructions
model charge
    includes this passage from
Starr
,
[1]
the current edition of
Watts Manual of

Criminal Jury
    Instructions
does not.
[2]
To succeed on this ground of appeal, it appears that Mr. Ruthowsky will have to
    move the law, as it is currently understood.

[40]

The
    balance of the issues raised with the jury charge depend on whether Mr. Ruthowskys
    characterization of what the trial judge said bears up when the jury charge is
    read as a whole. The descriptions of the charge offered are controversial.
    These grounds of appeal are arguable, but have not shown to clearly surpass the
    not frivolous threshold.

[41]

The
    fifth ground of appeal in Mr. Ruthowskys notice of appeal alleges an error in
    the trial judges decision to deny a stay of proceedings application brought
    pursuant to s. 24(1) of the
Charter of Rights and Freedoms
. This
    ground of appeal is presented as a bald assertion, without an attempt to
    identify errors of law, or principle, or unreasonable findings of fact. On this
    record, it stands no chance of success.

[42]

In
    sum, Mr. Ruthowsky is seeking bail pending appeal without the benefit of
    grounds of appeal that clearly surpass the not frivolous threshold. This
    weakens the reviewability interest.

(2)

The Gravity of the offences and the Circumstances Surrounding the
    Commission of the Offences

[43]

The
    crimes that Mr. Ruthowsky has been convicted of are grave. In his reasons for
    sentence, the trial judge described that they were committed in seriously
    aggravated circumstances. He was found to have repeatedly abused the trust
    reposed in him by the community over a protracted period, facilitating drug
    trafficking for his own enrichment. The sums involved where significant. He was
    found to have exposed the identity of a confidential informant to a known drug
    trafficker, and to have warned that trafficker that prospective buyers were
    undercover police officers.

[44]

These
    factors agitate in favour of his continued detention as they elevate the
    enforcement interest.

(3)

The Length of Imprisonment

[45]

Mr.
    Ruthowsky was sentenced to 13 years in custody. Even if his sentence appeal
    succeeds, he is facing a lengthy period of incarceration. I do not trivialize
    the loss of liberty that occurs during detention pending appeal, even for those
    who have much longer sentences to serve. There is no risk, however, that Mr.
    Ruthowsky will serve anything close to the full sentence imposed on him pending
    his appeal. Denying his release pending appeal will not, for all practical
    purposes, undermine the reviewability interest of the decision against him.

CONCLUSION

[46]

I
    bear in mind that courts have been instructed that only a fraction of bail
    pending appeal applications should be resolved based upon the impact that
    release pending appeal would have on public confidence in the administration of
    justice. I am also mindful that, in balancing the enforceability and reviewability
    interests, I am to conduct the evaluation through the eyes of a reasonable
    member of the public.

[47]

Mr.
    Ruthowsky has been convicted of very serious crimes, committed in aggravated
    circumstances, and his grounds of appeal do not clearly surpass the not
    frivolous threshold. A reasonable member of the public would conclude, in my
    view, that the public interest in enforceability outweighs the reviewability
    interest in this case. Mr. Ruthowsky has not satisfied me that his detention is
    not necessary in the public interest, to preserve public confidence in the
    administration of justice.

[48]

I
    therefore dismiss Mr. Ruthowskys application for bail pending appeal. As a
    result, it is particularly important that the appeal proceed without delay. I
    order that the appeal be expedited pursuant to s. 679(10) of the
Criminal
    Code
. I am prepared to assist the parties in achieving that. Counsel will
    coordinate and provide this court with mutually agreeable dates within the next
    three weeks for a case conference that I am offering to conduct so that
    directions may be given to expedite the appeal.

David
    M. Paciocco J.A.

[1]

Gerry A. Ferguson, The Honourable Justice Michael R.
    Dambrot & The Honourable Justice Elizabeth A. Bennett,
Canadian Criminal
    Jury Instructions
, loose-leaf (consulted on 13 June 2018), (Vancouver:
    Continuing Legal Education Society of British Columbia, 2005), at
§ 4.04.1.

[2]

The Honourable Justice David Watt,
Watt's
    Manual of Criminal Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015), at
    Final 13, pp. 261-67.