R. v. N.S., 2021 ONCA 694

Publication Ban Warnings

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

WARNING

An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17 ]

R.S., 1985, c. C-46, s. 517 ; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17 .

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20211012 DOCKET: M52570 (C69437)

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen Applicant (Appellant)

and

N.S. Responding Party (Respondent)

Counsel: Deborah Krick, Michael Dunn and Jeremy Tatum, for the applicant Carlos Rippell and Marianne Salih, for the responding party Gerald Chan and Dragana Rakic, for the intervener, Criminal Lawyers’ Association (Ontario)

Heard: October 1, 2021 by video conference

Reasons for Decision

[1] Following the decision of the Supreme Court of Canada in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] S.C.R. 1101 (“Bedford SCC”), Parliament enacted new legislation to address the sale of sexual services in Canada. In this new legislation, Parliament criminalized certain aspects of commercial sex work.

[2] The respondent N.S. was charged with several offences under the Criminal Code, R.S.C. 1985, c. C-46, including s. 286.2 (receiving material benefit from sexual services), s. 286.3(1) (procuring sexual services), and s. 286.4 (advertising sexual services). At trial, the respondent asserted that these provisions infringed ss. 2(b), 2(d), and 7 of the Canadian Charter of Rights and Freedoms and were not justifiable limits under s. 1 of the Charter.

[3] The trial judge held that these provisions infringed s. 7 of the Charter, declared them of no force and effect, and declined to suspend the declaration of invalidity: R. v. N.S., 2021 ONSC 1628; R. v. N.S., 2021 ONSC 2920.

[4] The applicant has appealed these decisions and seeks to stay them pending the appeal.

[5] The test for granting a stay is the longstanding and well-known tripartite one set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] S.C.R. 311, at para. 48:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[6] The applicant easily meets the first part of the test. It is obvious that the respondent’s challenge to the validity of several provisions in s. 286 of the Criminal Code poses “a serious question to be tried”: see Bedford v. Canada (Attorney General), 2010 ONCA 814, 330 D.L.R. (4th) 162, at para. 10 (“Bedford ONCA”). In recent months three other judges of the Superior Court have declined to follow the decision in N.S.: see R. v. MacDonald, 2021 ONSC 4423, 72 C.R. (7th) 413; R. v. Williams (24 June 2021), Brampton, 18-00000980 (Ont. S.C.); and R. v. Maldonado Vallejos, 2021 ONSC 5809.

[7] On the second branch of the test – “irreparable harm” to the applicant – we begin with the analysis by Rosenberg J.A. in the stay application relating to the former Criminal Code prostitution provisions. In Bedford ONCA, Rosenberg J.A. analyzed the second branch of the RJR-MacDonald test at para. 15:

There are obvious advantages to maintaining the status quo by staying the judgment. A stay will minimize public confusion about the state of the law in Ontario; for the time being the law in Ontario will be the same as in the rest of Canada. The police will be able to continue to use the tools associated with enforcement of the law that they say provides some safety to prostitutes, especially those working on the streets. The various levels of government will have the opportunity, should they choose to do so, to consider a legislative response to the judgment, which might be better informed following a full review by this court of the application judge’s decision.

[8] In our view, the extensive evidentiary record put forward by the applicant on this motion strongly supports a similar analysis and conclusion.

[9] The third branch of the RJR-MacDonald test – the “balance of convenience” branch – also favours the granting of a stay. Again, the analysis in the decision on the stay application in Bedford ONCA is instructive. In that case, Rosenberg J.A. said, at para. 24:

In cases involving the constitutionality of legislation, irreparable harm and balance of convenience tend to blend together and they are often considered together. … This blending of the two stages in cases involving the constitutionality of legislation is understandable because, where the government is the applicant, the public interest is engaged at both stages … As well, the irreparable harm is not easily quantified in a case such as this in which monetary issues are not engaged and any harm to one side or the other cannot be cured by an award of damages at the end of the litigation … In the result, the same considerations that concern a court at the irreparable harm stage resurface in the balance of convenience stage.

[10] In Bedford ONCA, Rosenberg J.A. went on to conclude that the balance of convenience favoured the applicant. We would make a similar conclusion with respect to the new Criminal Code provisions relating to prostitution. Their content, and the ongoing investigative and enforcement steps taken by law enforcement personnel, support the granting of a stay. This is especially so given that, with the agreement of counsel, the stay will be a very brief one.

[11] We grant the stay and maintain it in place until November 19, 2021, the date on which the appeal will be heard in this court.

“J.C. MacPherson J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”