WARNING

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.M., 2020 ONCA 610

DATE: 20200928

DOCKET: M51788 (C67806)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

S.M.

Appellant (Applicant)

Christen Cole, for the appellant

Molly Flanagan, for the respondent

Heard: September 28, 2020 by video conference

REASONS FOR DECISION

[1] On June 26, 2020, I denied an application by S.M. for release pending appeal. I ordered his continued detention on the tertiary ground because, in the unique circumstances of the case, he had not met his burden of satisfying me that his detention is not necessary in the public interest. Those circumstances included that his grounds of appeal did not appear to be strong; that pending trial he had breached interim judicial release conditions imposed on the same charges; and that one of the convictions being appealed is for obstruction of justice relating to a demand he made to the complainant that she recant.

[2] S.M. has now renewed his application for release pending appeal based on what the Crown concedes to be a material change in circumstances. Specifically, S.M. now appeals on the additional ground that the trial judge erred in relying on s. 276 of the Criminal Code to prevent him from engaging in relevant cross-examination of the complainant regarding her prior experience as a sex worker, when s. 276 does not apply to the offences being prosecuted, specifically human trafficking and charges related to the commodification of sexual services. He contends that the trial judge’s ruling prevented him from effectively defending those charges on the theory that the complainant, as an experienced sex worker, was the one who conducted the sexual services business. S.M. also contends that this ruling prevented him from demonstrating that violence previously experienced by the complainant in her work as a sex worker gives credence to his claim that the complainant’s practice of checking in and out with him before and after providing sexual services related to her personal safety and did not reflect his involvement in the business.

[3] The Crown accepts that the application of s. 276 in this prosecution is controversial but argues that this is a new issue on appeal that S.M. should not be permitted to raise. The Crown may well prove to be correct but their argument is also contentious. In my view, it can no longer be said that S.M.’s grounds of appeal lack strength. There is a realistic prospect that his appeal could succeed.

[4] This elevates the importance of reviewability and changes the balance in this case. S.M.’s bail release plan has also solidified now that the owner of the residence where he proposes to serve the house arrest condition of his planned release has given her approval. In the circumstances, S.M. has met the burden of establishing that his continued detention is no longer required on the tertiary ground.

[5] I am prepared to release S.M. on appropriate conditions with the sureties proposed. Those conditions must include both house arrest and electronic surveillance. The parties should strive to agree upon an appropriate order and submit it for my approval or notify me of the need for a further hearing.

“David M. Paciocco J.A.”