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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. S.M., 2020 ONCA 427

DATE: 20200626

DOCKET: M51598 (C67806)

Paciocco J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Applicant/Appellant

Anthony Moustacalis and Christen Cole, for the applicant

Molly Flanagan, for the respondent

Heard: June 25, 2020 by video conference

REASONS FOR DECISION

OVERVIEW

[1] October 11, 2019, S.M. was convicted of seven human trafficking related offences, including assault causing bodily harm, alleged to have been committed against a single complainant. He was also convicted of an eighth offence, obstruction of justice, for attempting to discourage the complainant from co-operating with the police by yelling at her when he was being arrested for assaulting her and she was in the process of giving a police statement.

[2] On November 28, 2019, S.M. was sentenced for these offences to a global sentence of 66 months imprisonment, minus 27 months of credit for pre-sentence custody. He is now applying before me pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46 for judicial interim release pending appeal.

[3] The Crown contests S.M.’s judicial interim release application only on the tertiary ground. It contends that, given the seriousness of the crimes including the length of the sentence imposed; the low plausibility of S.M.’s proposed grounds of appeal; the inadequacy of his release plan; and the absence of any case specific COVID-19 concerns, S.M. has not met his onus of establishing that his detention is not necessary in the public interest. More specifically, he has not demonstrated on the balance of probabilities that his release would not harm public confidence in the administration of justice.

[4] I agree with the Crown. S.M. has not met the burden he bears. His application for interim judicial release is denied.

ANALSIS

[5] The Crown accepts that S.M.’s grounds of appeal clear the very low “not frivolous” hurdle found in s. 679(3)(a) of the Criminal Code.

[6] The Crown also concedes that S.M. has established that he would surrender himself into custody in accordance with the terms of a release order. This concession is well-taken. S.M. has important ties to the community, as well as gainful self-employment in the entertainment industry in his community, and he has surrendered himself for bail release hearings on two occasions in connection with the current matters.

[7] The Crown contends that S.M. has not satisfied this third precondition to judicial interim release pending appeal, provided for in s. 679(3)(c) of the Criminal Code. It takes issue with S.M.’s submission that he has established on a balance of probabilities that his detention is not necessary in the public interest.

[8] I do not understand the Crown to be submitting that SM.’s detention pending appeal is in the public interest because he has not disproved that he poses a substantial likelihood of reoffending, thereby warranting his detention on the secondary ground: see R. v. Stojanovski, 2020 ONCA 285, at para. 18. That submission could not be accepted on this record. Instead, the Crown relies on the tertiary ground. The Crown’s position is that in the circumstances, including the residual risk S.M. poses to public safety, S.M. has failed to show that his release would not diminish public confidence in the administration of justice in the eyes of reasonable members of the public: Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 47.

[9] The public confidence determination requires a balancing to be undertaken between the public interest (including his own interest) in having a meaningful review of his convictions before he is made to begin serving his sentence pending appeal, and the public enforceability interest: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 at paras. 23-26.

[10] Of significance, S.M. no longer benefits from the presumption of innocence. To reflect the absence of the presumption of innocence, the “general rule” in judicial interim release applications pending appeal is that there should be “immediate enforceability of judgments”: Oland, at para. 25. The burden is therefore on the applicant, in this case S.M., to demonstrate on a balance of probabilities that the reviewability interest outweighs the enforceability interest. Several factors inform this determination, including the seriousness of the crimes S.M. was convicted of; the strength of his proposed grounds of appeal, and the residual risk he presents, bearing in mind the proposed plan of release.

A. THE SERIOUSNESS OF THE CRIMES

[11] The seriousness of the crimes S.M. was convicted of may be determined by the gravity of the offences he was charged with, the circumstances surrounding their commission, and the potential length of imprisonment. This ultimate determination will be informed by the trial judge’s reasons for sentence: Oland, at para. 38.

[12] S.M. acknowledges that, by their nature, the offences he was convicted of are serious or grave. That concession is appropriate. The seven human trafficking charges S.M. was found to have committed criminalize the exploitation and domination of a victim so that the victim will provide sexual services for the financial benefit of the offender.

[13] Even bearing in mind S.M.’s observation that the offences he was convicted of involved only a single complainant, the circumstances surrounding the commission of these offences underscore the seriousness of the crimes S.M. has been convicted of committing. The trial judge found that S.M. persuaded the complainant, who he had been in a personal relationship with and who was attempting to overcome substance abuse issues, to re-enter the sex trade. She found that S.M. directed this vulnerable woman’s activity in the sex trade during an ongoing period, used violence against her that broke her ribs, and controlled the proceeds of her sex work. The mid-range penitentiary sentence S.M. received – 66 months, or five and one-half years – underscores the seriousness of the offences.[^1]

[14] In my view, the seriousness of the crimes S.M. was convicted of committing pulls in favour of the enforcement interest. The more serious an offence is, the more urgent the enforcement interest becomes. The seriousness of the crimes may also enhance concern about the residual public safety risks an applicant poses, and it does so here. A person who would commit the offences S.M. has been convicted of will have demonstrated their readiness to exploit, diminish and harm a vulnerable human being in their own self-interest on an ongoing basis, and then attempt to interfere in the administration of justice to frustrate their own prosecution.

B. The STRENGTH OF THE GROUNDS OF APPEAL

[15] Grounds of appeal may be strong enough to mitigate the residual risk to public safety suggested by the seriousness of the offences the applicant is appealing. Grounds of appeal that clearly surpass the “not frivolous” threshold set in s. 679(3)(a) of the Criminal Code can also play a central role in enhancing that public interest in reviewability: Oland at paras. 40, 44. However, based on the record before me, I am not persuaded that the general legal plausibility of S.M.’s grounds of appeal promotes his application for release.

[16] I can give no weight to the suggestion that there could be a supplemental ground of appeal relating to the prior sexual history evidence. S.M.’s judicial interim release application lacks entirely the details necessary to evaluate whether such a ground of appeal would have any merit.

[17] The one legal error that is alleged relates to a paraphrase by the trial judge of the first two legs of the R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, self-direction. In describing the first branch of the W.D. test the trial judge replaced the familiar reference to “believing” exculpatory evidence with “accept[ing] as accurate evidence that is inconsistent with a finding that the accused is guilty”. In the second branch, she substituted the familiar reference to not believing the exculpatory evidence but being left in reasonable doubt by it, with being “unsure whether the evidence that is inconsistent with guilt is accurate”. Although I remain open minded and will refrain from engaging the issue more extensively in an interim judicial release application, it is not immediately evident to me that this ground of appeal clearly surpasses the “not frivolous” standard. Put otherwise, I cannot conclude on the record before me the apparent strength of this ground of appeal leans in favour of reviewability before enforcement.

[18] The remaining proposed grounds of appeal relate to the trial judge’s credibility evaluation, with claims made of an unreasonable verdict, misapprehension of evidence including the failure to give effect to evidence, and uneven scrutiny. Although the objections made by S.M. to the trial judge’s reasoning could, with the benefit of a full record, prove to be of great substance, these grounds of appeal venture into areas where significant deference is afforded to trial judges. This is so in a case where the trial judge found confirming evidence for the complainant’s account, and where the trial judge gave reasons for finding the accused’s version of events to be implausible and incredible. The strength of these remaining grounds of appeal do not support reviewability before enforcement, either.

C. PUBLIC Risk and the release plan

[19] S.M. had no prior criminal record when charged with the offences now under appeal. This is an important indication when taken in isolation that S.M. would probably keep the peace and comply with conditions of release, were I to grant his current application.

[20] However, the impact of S.M.’s prior clean record is diminished by the ongoing, exploitive and violent crimes he is now appealing. More significantly, the impact of his clean record is materially weakened by the fact that S.M. breached bail release conditions put in place relating to the charges he is now appealing, despite having a surety in place who had pledged $2,000 in support of his application. In doing so he has undermined the confidence that can be had that the risk of his behaviour to a surety would inspire his compliance.

[21] Specifically, on April 1, 2019, S.M. pleaded guilty to two counts of failing to comply with conditions of his release that were put in place to reduce the risk of reoffence, a curfew condition and a condition that he not attend hotels. He was charged with these offences within six months of having been placed on judicial interim release. As the result of this event, S.M. was detained pending his trial. Consequently, he is not able to demonstrate through his prior experience that he would comply with his conditions of release. Moreover, one of the offences now under appeal – obstruction of justice – is an offence against the administration of justice found to have been committed in effort to impede the prosecution of one of the offences now under appeal.

[22] In these circumstances a member of the public would reasonably apprehend that there is a material residual risk that if S.M. were to be released, he may well reoffend or commit offences against the administration of justice, notwithstanding his once clean record. Given this reasonable apprehension, his release could harm public confidence in the administration of justice.

[23] Can this reasonable apprehension be sufficiently ameliorated by the proposed judicial interim release plan? I am not satisfied that it can be.

[24] S.M. proposes a judicial interim release plan that would involve 24-hour house arrest when not in the presence of one of two identified, suitable sureties who are prepared to pledge a combined total of $20,000. Electronic-monitoring is also proposed, if required.

[25] Notwithstanding the generosity and good standing of S.M.’s proposed sureties, I share the Crown’s concerns about the residency part of this plan. It is proposed that S.M. be released immediately to live with one of his sureties, in the surety’s mother’s home, until the surety finds and leases his own residence. Notably, there is no indication in the supporting materials that the surety’s mother has consented to have S.M. move into her home pending the anticipated move. Moreover, the proposed residential surety works 11-hour days away from the home, 6 days a week. He will not be present to supervise S.M. for long tracts of time. Although this concern can be partially addressed with electronic monitoring, it is notable that the crimes S.M. has been convicted of were committed, in part, using electronic communication.

D. COVID-19

[26] The risk that institutional incarceration can increase exposure to COVID- 19 infection is a relevant and important consideration. However, S.M. has presented no case-specific foundation raising concern based on his health or demographic profile. Moreover, the Crown has provided evidence that at Joyceville Institution, where S.M. is currently residing, there have been no positive tests for COVID-19 among inmates. Without case-specific evidence of particular risk, COVID-19 considerations are of reduced weight: R. v. Kazman, 2020 ONCA 251, at para. 20 (Harvison Young J.A., in Chambers); R. v. Jesso, 2020 ONCA 280, at paras. 36-38 (Brown J.A., in Chambers). Appropriately, S.M. has not stressed his personal safety as a central consideration in his judicial interim release application.

E. CONCLUSION

[27] S.M. has failed to discharge his burden of satisfying me that his detention is not necessary in the public interest. I am fully aware that it should not be common to deny judicial interim release based on the tertiary ground: Oland, at para. 29. However, S.M., who was detained while he was presumed to be innocent of these serious charges, now seeks to be released pending appeal after having been convicted of the bulk of the charges against him. Moreover, he does so in reliance on grounds of appeal that do not appear on the record to be strong, after having breached interim judicial release conditions imposed on the same charges, and when one of the convictions being appealed is for obstruction of justice. In these unique circumstances I am not persuaded that he has met his burden. His compliance with non-communication orders relating to the complainant since being detained does not overcome these concerns.

[28] The application for judicial interim release is denied.

“David M. Paciocco J.A.”

[^1]: As an aside, the length of S.M.’s sentence also reduces the urgency in releasing him pending appeal. Confidence in the administration of justice may be harmed where release is denied, and the sentence would be substantially served by the time his appeal is heard. That is not this case.