One of two men sentenced to nine years in prison for a “prolonged, violent and degrading sexual assault,” of an unconscious or near unconscious 24-year-old woman at a downtown Toronto bar has been released on bail pending appeal because a new trial will almost certainly be ordered in his case.

Gavin MacMillan, the owner of the now-closed College Street Bar, and Enzo DeJesus Carrasco, the bar manager, were sentenced last week for gang sexual assault and drugging. Hours later MacMillan sought to be released on bail until his appeal could be heard.

In a decision released Wednesday, Court of Appeal Justice James MacPherson said that while the offences are “appalling,” MacMillan’s appeal is unusually “beyond strong; it borders on certainty.”

MacMillan’s case is identical to the Court of Appeal’s recent decision, in the murder case R. v Chouhan, that found a new jury-selection procedure implemented by the Liberal government should not have been used in cases that predated the change, MacPherson said. More than 30 recent cases are affected, the Superior Court of Justice has said.

“The jury selection in the applicant’s trial was therefore defective,” MacPherson said in the ruling.

“Barring something unforeseen arising, the appeal in this case will almost certainly be allowed and a new trial will be ordered,” MacPherson said.

He found the Crown’s assertion that it is not certain that the appeal will be granted “speculative.” The Crown has said they are seeking leave from the Supreme Court of Canada to appeal the Chouhan decision. The Crown is also seeking leave to appeal to the Supreme Court of Canada in another case in order to argue that a new trial does not have to be granted.

MacPherson, at the hearing, said the Crown’s case was “very, very strong” and in his ruling described the hours of video from the bar security cameras as “profoundly troubling” and showing “substantial violence and nauseating degradation.”

However, he also said MacMillan has followed his bail conditions before and during his trial. He will be released on a strict house arrest that requires him to live with a surety and prohibits him from leaving his home outside of emergencies and court appearances. MacPherson said this would address any concerns of public safety or flight risk.

Public confidence in the administration of justice, which requires balancing enforcing a sentence with allowing a meaningful review of convictions, is not harmed by releasing MacMillan on bail, he concluded.

A date has not yet been set for the appeal. DeJesus Carrasco has filed a notice of appeal on the same grounds but has not sought bail pending appeal. He faces two more judge-alone trials on three counts of sexual assault involving three complainants.