Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court File and Parties

Court of Appeal for Ontario

Date: 20230515 Docket: M54267(C69102)

Before: Simmons J.A. (Motion Judge)

Between: His Majesty the King Respondent (Respondent)

And: Adam Collier Applicant (Appellant)

Counsel: Breana Vandebeek, for the applicant Michael Dunn, for the respondent

Heard: May 11 and 12, 2023 by videoconference

Reasons for Decision

[1] Due to inadvertence of counsel and the applicant, the applicant failed to apply for an extension of the surrender date in a release order and failed to surrender on the specified surrender date.

[2] After the error was discovered, the applicant immediately surrendered and, with the consent of the Crown, applied for an extension of the surrender date. Because the prior release order had expired, I required that a fresh application for a release order be made.

[3] On May 12, 2023, with the consent of the Crown, I made an order releasing the applicant from custody under s. 679(1) of the Criminal Code. The Crown and counsel for the applicant had agreed on the applicant’s release and on terms for the release order but, for reasons to follow, I required that, to support the applicant’s release and to ensure the protection of the public, the agreed upon terms should varied to add additional financial penalties in the event of a breach. These are my reasons.

[4] The applicant was arrested in 2017 and charged with several counts of child luring, making sexually explicit material available to a child and possession of child pornography offences. He was released on bail pending trial, initially with his father as surety. Later, when additional charges were added, both his father and his stepmother (“his parents”) were required as sureties.

[5] In October 2021, the appellant was convicted of one count of child luring, one count of making sexually explicit material available to a child, and one count of possession of child pornography. He was sentenced to two-years-less-a-day imprisonment plus two years’ probation and ordered to surrender on a specified day. On the day of his sentencing, a release order pending appeal was made by this court that required, among other things, that he live with his parents and that both his parents act as sureties with a $20,000 [^1] promise to pay but no deposit.

[6] In December 2021, the applicant applied for a bail variation, asking that his parents be removed as his sureties, that he be released on his own recognizance and be permitted to leave his parents’ home and move to Toronto. The applicants’ parents had no complaints about his behaviour. However, they wanted to be relieved of their obligations because the applicant’s father was in his 80’s and they wanted to resume travelling after the pandemic. But the applicant had few acquaintances and no one who was prepared to act as his surety.

[7] Over the objections of the Crown, this court released the applicant on his own recognizance subject to a $10,000 deposit and conditions that included a requirement that he not use or possess any device capable of accessing the internet and not enter into any contract for a cellular data plan or the provision of internet services.

[8] The applicant’s release order was subsequently varied to extend his surrender date as his appeal proceeded. Under the terms of the most recent order, he was required to surrender at 7 a.m. on the earlier of the day of his appeal hearing or April 3, 2023.

[9] Due to inadvertence, the applicant’s counsel failed to apply for a variation of the April 3, 2023, surrender date and this error was not discovered until the evening of May 8, 2023. Because the applicant did not possess a cell phone, his counsel was unable to contact him immediately. However, on the advice of and with the assistance of counsel, he surrendered into custody on May 10, 2023.

[10] Since the applicant’s release order from this court had expired and was therefore spent, I required that, rather than a variation application, a fresh application for a release order be brought with an updated affidavit from the applicant. On the return of the application, the Crown consented to the applicant being released on the same terms as this court had ordered in December 2021, save for the surrender date, which could now be updated to reflect that a November 2023 appeal hearing date has been set.

[11] Because the application before me was a fresh release order application, and not a variation application, it was necessary that I exercise my discretion and determine whether a release order should be made and, if so, on what terms.

[12] Based on my review of the fresh application together with the material that had previously been before this court, I was satisfied that the applicant’s appeal is not frivolous. Further, although the applicant failed to surrender on his April 3, 2023 surrender date, I accepted his and his counsel’s explanation that that should not raise concerns about him surrendering in the future. Counsel failed to apply for a variation of the surrender date due to inadvertence. The applicant expressed shock to his counsel about the surrender date and explained he had forgotten the date and did not intend to breach the release order. This explanation was supported by the fact that he continued to report as required after April 3, 2023 and surrendered promptly when informed by his counsel of the omission. The applicant has no criminal record apart from the offences subject to this appeal and has no other history of known breaches.

[13] Nonetheless, given the nature of the offences of which the appellant was convicted, I was not satisfied that a no-surety recognizance with a $10,000 deposit was a sufficient release plan to ensure public safety. Without sureties, the conditions prohibiting the applicant from using or possessing devices that would permit him to access the internet or obtaining internet services are incapable of practical supervision or enforcement.

[14] The applicant deposed that he had $80,000 in savings. In my view, to ensure that the terms of the release order would deter the applicant from attempting to access the internet, a greater potential financial penalty was required. I therefore ordered that the conditions agreed upon by counsel be varied to require a $50,000 promise to pay with a $20,000 deposit with terms that would ensure the increased deposit would be paid forthwith.

“Janet Simmons J.A.”

Footnotes

[^1]: The applicant also made a $10,000 promise to pay without deposit.