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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 20220805 Docket: M53658 (C70924)

Before: Gillese J.A. (Motion Judge)

Between: Her Majesty the Queen, Respondent and H.K., Applicant

Counsel: Brian H. Greenspan and Michelle M. Biddulph, for the applicant Lilly Gates, for the respondent

Heard: August 4, 2022 by video conference

Endorsement

[1] The applicant, H.K., applies for release pending appeal. At the oral hearing of the appeal, I advised the parties that I would grant the application with brief reasons to follow. These are the promised reasons.

[2] The applicant is 67 years of age and has no criminal record. He immigrated to Canada in 1981 and became a Canadian citizen in approximately 1986. His life, home, family, and the companies he founded, are all here: there is no question that he will surrender into custody.

[3] While the Crown argues that his appeal has no merit, in my view, the appeal more than meets the “not frivolous” test. This is especially true of the sentence appeal where it appears that relevant and compelling evidence of extraordinary hardship may not have been taken into consideration when determining whether a conditional sentence should be imposed.

[4] I do not accept the Crown’s contention that the applicant’s detention is necessary in the public interest. The applicant was sentenced to a total of ten months’ imprisonment. This means that he would be eligible for parole after approximately 3.5 months and eligible for release based on earned remission after approximately 6.5 months. If this application is dismissed, it is very likely that the applicant will have served the custodial portion of his sentence by the time the appeal is heard and decided. That would render moot his appeal against sentence. In my view, the risk of mootness alone weighs heavily in favour of release pending appeal. My view is reinforced by a consideration of the strength of the merit of the sentence appeal.

[5] For these reasons, I granted the application for release and ordered that the release order should go in accordance with the draft provided to the court.

[6] At the Crown’s request, I also order that a publication ban shall apply to the proceedings in this court, pursuant to ss. 486.4(2.2) and 486.5(1) of the Criminal Code, R.S.C. 1985, c. C-46. I note that no such ban was sought or obtained in the proceedings below and that the applicant takes no objection to a publication ban being imposed at this stage of the proceedings.

“E.E. Gillese J.A.”