WARNING

This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

WARNING

The presiding justice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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. 15.

Court of Appeal for Ontario

Citation: R. v. MacMillan, 2020 ONCA 762 Date: 2020-11-27 Docket: M51946 (C67940)

Huscroft J.A. (Motion Judge)

Between:

Her Majesty the Queen Respondent (Responding Party)

and

Gavin MacMillan Appellant (Moving Party)

Counsel: Breana Vandebeek, for the moving party Molly Flanagan, for the responding party

Heard: by videoconference: November 26, 2020

Reasons for Decision

[1] The appellant and his co-accused were convicted of sexually assaulting and administering a noxious substance to the complainant and sentenced to a term of 9 years’ imprisonment. He is appealing both conviction and sentence.

[2] The appellant was granted bail pending appeal with a surrender date of December 1, 2020. The Crown is not consenting to an extension of the appellant’s bail beyond this date. As a result, the appellant has brought an application to vary his release order to extend the surrender date.

[3] For the reasons that follow, I conclude that the application should be granted.

[4] On the initial bail application, the Crown conceded that the appellant’s appeal was not frivolous and that he was not a flight risk but contested whether detention of the appellant was necessary in the public interest. MacPherson J.A. concluded that, despite the seriousness of the offence, the appellant was all but certain to succeed on appeal given this court’s decision in R. v. Chouhan, 2020 ONCA 40, 194 O.R. (3d) 365. As a result, he concluded that the public interest balance favoured reviewability rather than enforceability and granted bail.

[5] Subsequently, the Supreme Court of Canada overturned this court’s decision in R. v. Chouhan (October 13, 2020), S.C.C. 39062. Following release of the court’s decision, the Crown informed the appellant that in light of the change in the law, it would not consent to a further extension of his bail because the appellant could no longer show that his detention was not necessary in the public interest.

[6] As on the original application, the Crown concedes that the first two criteria set out in the Criminal Code, s. 679(3)(a) and (b) are satisfied. Specifically, the Crown concedes that the appeal is not frivolous and that the appellant will surrender into custody as required. Accordingly, the onus is on the appellant to establish that his detention is not necessary in the public interest under s. 679(3)(c). The public interest criterion has two components, public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23, 26. The Crown accepts that any public safety concerns here can be addressed by bail conditions.

[7] In determining whether detention is necessary to maintain public confidence in the administration of justice, the relevant factors are: (1) the gravity of the offence; (2) the circumstances surrounding the commission of the offence; (3) the potential for a lengthy term of imprisonment; and (4) the strength of the appeal.

[8] There is no question as to the gravity of the offences in this case or the egregious circumstances surrounding their commission. The question is, how is this to be balanced against the strength of his appeal?

[9] The appellant proposes to make several arguments against conviction. First, he contests the decision to admit expert evidence and maintains that the expert was not impartial. Second, he argues that the trial judge erred in his instructions to the jury on the issue of consent. Third, he argues that the trial judge erred in his ruling on s. 276 of the Criminal Code. Fourth, the appellant argues that the trial judge erred in his ruling on the mistrial application.

[10] The Crown submits that the first ground is arguable, but not strong, and describes the other three grounds as weak or frivolous.

[11] At this stage of the proceedings, the appellant’s proposed arguments on appeal do not appear to me to be strong, but it is difficult to say more than this in the absence of a complete record. The Crown concedes that one of the grounds is arguable and it is fair to conclude that this ground clearly surpasses the minimal standard required to meet the “not frivolous” criterion. That is as much as can be said by way of a preliminary assessment.

[12] In other circumstances, the enforceability interest might be thought to outweigh the reviewability interest. But the circumstances of this case are unusual, in that the appellant has already been on bail pending appeal for nine months. Prior to that, he was on bail pre-trial for over three years, and the bail period has been uneventful. As the Supreme Court stated in Oland, at para. 51, “where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “not frivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences.”

[13] Given that an appeal can be heard relatively soon I conclude that it is appropriate to extend the appellant’s bail for the brief period that will be necessary.

[14] Accordingly, the application is granted. The draft order prepared by the appellant will issue if the Crown agrees to its terms. If not, I will resolve the terms of the order before expiry of the bail on December 1, 2020.

“Grant Huscroft J.A.”