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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20200219 DOCKET: M51246 (C67940)

MacPherson J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Gavin MacMillan Applicant

Counsel: Breana Vandebeek, for the applicant Jennifer A.Y. Trehearne, for the respondent

Heard: February 12, 2020

REASONS FOR DECISION

[1] The applicant Gavin MacMillan and his co-accused Enzo De Jesus Carrasco were found guilty, by a jury in a trial presided over by Dambrot J. of the Superior Court of Justice, of sexually assaulting and administering a noxious substance to a young woman in the College Street Bar, owned by the applicant.

[2] The applicant’s and co-accused’s assault and violation of the complainant took place over approximately six hours. A great deal of it was captured by the bar’s surveillance camera. What the camera shows is profoundly troubling – substantial violence and nauseating degradation over the course of a prolonged physical and sexual assault on the complainant. For most of the time, the complainant was unable to resist due to severe intoxication by alcohol and cocaine the two men gave her.

[3] On February 12, 2020, the applicant received a sentence of nine years’ imprisonment for the offences. He has prepared a draft Notice of Appeal. He seeks bail pending the hearing of the appeal.

[4] The test for granting bail pending appeal is set out in s. 679(3) of the Criminal Code:

… the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

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

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

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

[5] The Crown concedes that the appeal is not frivolous. The applicant’s principal ground of appeal is that the trial judge erred by determining, as did several other Ontario trial judges, that a recent federal law (“Bill C-75”) removing peremptory juror challenges applied retrospectively to criminal proceedings that had started, but not finished, before Bill C-75 came into force.

[6] This argument is far removed from being frivolous. Indeed, it is almost the opposite; it is almost certain to succeed. That is because two months after this trial concluded, this court reached the opposite conclusion on the same issue. In R. v. Chouhan, 2020 ONCA 40, Watt J.A. said, at paras. 5 and 217:

With respect to the temporal application of the amendments, I decide that the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. But I conclude the amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019.

[T]he abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not have applied to the selection of the jury in his case nor should it apply to the selection of the jury in other cases if the accused had a vested right before September 19, 2019 to a trial by judge and jury as it existed in the prior legislation. [Emphasis added.]

[7] In terms of the relevant temporal factors, the present case is identical to Chouhan. It follows that, barring something unforeseen arising, the appeal in this case will almost certainly be allowed and a new trial will be ordered. Accordingly, this factor counts strongly in the applicant’s favour.

[8] The Crown also concedes that the second factor in s. 679(3) of the Criminal Code is not in play on this appeal. The Crown says: “It appears that any risk that the Applicant will flee the jurisdiction can be controlled pending appeal by the imposition of strict bail conditions”.

[9] I agree. The applicant complied with his bail conditions throughout the pre-trial and trial period. Moreover, he has agreed with the Crown that stringent bail conditions are appropriate. One of the bail conditions will be virtual house arrest:

5. You must reside with your surety [mother] at […]

6. You must remain in your residence at all times except:

i. for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling); or

ii. for purposes of travelling directly to, from and while at court appearances, or meeting with your lawyer, or for purposes of complying with this or any other order.

[10] Taking these factors into account, it is highly unlikely that the applicant is a flight risk.

[11] Turning to the third factor, the question for determination is whether the applicant has shown, on a balance of probabilities, that his detention is not necessary in the public interest: see R. v. Oland, 2017 SCC 17, at para. 19; R. v. Iraheta, 2018 ONCA 229, at para. 4.

[12] The ‘public interest’ factor in s. 679(3) of the Criminal Code has two components – public safety and public confidence in the administration of justice: see Oland, at para. 23, and R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at paras. 41-43. While public confidence in the administration of justice is rarely a central factor in the test, it ought to be considered when an offence is serious: Oland, at paras. 29 and 43.

[13] The public confidence in the administration of justice factor is in play in this application. Public confidence requires a balancing of reviewability and enforceability. In determining whether public confidence requires detention, the relevant factors are: (1) the gravity of the offence; (2) the circumstances surrounding its commission; (3) the potential for a lengthy term of imprisonment; and (4) the strength of the appeal: see Oland, at paras. 37-40.

[14] The offences are grave. The applicant has been convicted of two serious offences – sexual assault and administering a noxious substance.

[15] The circumstances surrounding the commission of the offence are, in a word, appalling. The applicant’s treatment of the complainant – captured on camera – was violent, degrading and prolonged.

[16] The potential for a lengthy term of imprisonment is obvious – the applicant has been sentenced to nine years’ imprisonment.

[17] However, and unusually on an application for bail, the applicant’s proposed appeal is beyond strong; it borders on certainty. On the issue of the jury selection process, the applicant’s case is identical to Chouhan. The jury selection process in the applicant’s trial was, therefore, defective. His appeal will likely be allowed and a new trial will likely be ordered.

[18] The respondent disagrees, submitting that it is not almost certain that the applicant’s appeal will be allowed. The respondent makes two submissions in support of this position.

[19] First, the respondent informed the court at the bail hearing that it has decided to seek leave to appeal Chouhan. The respondent submits that, because of the importance of Chouhan in the Ontario justice system (the Chouhan formula was followed in many trials), the Supreme Court is likely to grant leave. Then, the respondent submits, the Supreme Court might allow the appeal, rendering the applicant’s principal ground of appeal meritless.

[20] The problem with this submission is that it is entirely speculative. On the ground now, Chouhan is the law in Ontario. It will be applied in this appeal. Almost certainly, that will mean a new trial in this case.

[21] Second, the respondent submits that even if a ‘Chouhan error’ is established in this case, a new trial will not necessarily be the remedy. In a similar Ontario case, R. v. Esseghaier and Jaser, 2019 ONCA 672, where this court ordered a new trial because of a fault in the jury selection process, the federal Crown is seeking leave to appeal to the Supreme Court of Canada and, if leave is granted, will argue that the curative proviso in s. 686 of the Criminal Code should be applied to save the trial result. The respondent contends that, if this becomes the result in Esseghaier and Jaser, then a similar result would likely follow in this appeal.

[22] This submission suffers from the same defect as the previous one: it is entirely speculative. On the ground now, Esseghaier and Jaser is the law in Ontario. And in Esseghaier and Jaser, Zarnett J.A., speaking for a unanimous court, said, at para. 95:

In my view, the curative proviso cannot be applied in this case. As pointed out in Noureddine, beyond the issue of the curative proviso’s application to a question that affects the proper constitution of the jury, and thus of the court which tried the appellants, the curative proviso cannot be applied unless there was no prejudice to the accused. As in Noureddine, the question here is not actual prejudice, which in these kinds of circumstances is impossible to gauge, but prejudice to the due administration of justice flowing from the denial of a jury selection method which was in law properly invoked: Noureddine, at paras. 62-64.

[23] Taking these factors together, I cannot say public confidence in the administration of justice would be offended if the applicant were released on bail pending his appeal. He has a very strong case on the appeal. He complied with all the conditions of his bail before and during his trial. And as stated above, the public confidence factor does not exhaust the public interest: the stringent conditions on the applicant’s interim release are adequate to protect public safety. In my view, these are the controlling factors on this application, against the backdrop of this court’s decisions in Chouhan and Esseghaier and Jaser.

[24] For these reasons, the application for bail pending appeal is granted. The Crown and the applicant have agreed on the terms of bail, including virtual house arrest. Order to go in terms of the draft Release Order filed.

“J.C. MacPherson J.A.”