Court Information

Court of Appeal for Ontario

Date: 2025-09-18

Docket: M56279 (COA-25-CR-1099)

Motion Judge: Sossin J.A.

Parties

Between

His Majesty the King Respondent/Responding Party

and

Rebecca Horton Appellant/Applicant

Counsel

Laura Remigio, for the appellant/applicant

Kevin Chan, for the respondent/responding party

Hearing

Heard: September 12, 2025

Reasons for Decision

Overview

[1] The applicant was convicted of two counts of human trafficking and sentenced to a period of 8 years imprisonment (reduced to 7.5 years on the basis of credit for 6 months of pre-trial custody): R. v. Horton, 2025 ONSC 4882, at para. 63 ("Horton Sentence"). She had no prior criminal record and was 21 years old at the time of the offences in 2018: Horton Sentence, at para. 19.

[2] The offences involved the applicant trafficking two vulnerable females, referred to as R.W. and M.D. The applicant assaulted R.W., and subjected her to psychological, emotional and physical abuse. She sexually assaulted M.D., who was under 18 years of age at the time, in addition to subjecting M.D. to psychological coercion, violence, withholding of food, and exploitation of her poverty, homelessness, and substance addictions.

[3] The applicant was originally tried together with two men who were her co-accused in the human trafficking offences before O'Marra J., but a mistrial was declared due to one of her co-accused's delay, and a new trial proceeded before Campbell J. In the midst of her second trial, the applicant successfully applied to sever her trial from that of her co-accused, and proceeded in a judge-alone trial: R. v. Horton, 2025 ONSC 1344, at para. 3 ("Horton Conviction").

[4] The applicant's defence at her second trial was that she was a victim of her co-accused in the human trafficking offences: Horton Conviction, at para. 7. The trial judge found as a fact that the applicant was a fully willing and active participant in the trafficking scheme: Horton Conviction, at para. 129.

[5] In order to succeed on an application for bail pending appeal, the applicant must establish, per s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, that:

(a) the appeal is not frivolous;

(b) the applicant will surrender themself into custody in accordance with the terms of the release order; and

(c) the applicant's detention is not necessary in the public interest: see also R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

[6] The applicant was released on a recognizance on June 15, 2018 and has since resided in Nova Scotia. Over the past 7 years, the applicant submits that she has had no breaches, and has followed her conditions, namely, to reside with her surety and check in at the Halifax police station every Friday. She has attended court by Zoom when requested and has shown that she is capable of attending court in person when asked to do so.

[7] The Crown concedes that the applicant is not a risk to public safety, nor are there concerns with respect to her surrendering into custody at the time of her appeal.

[8] For the reasons that follow, I would allow the application. In my view, the applicant's appeal is not frivolous, nor is her detention necessary in the public interest. Given the Crown's concession that the applicant is not a flight risk, I conclude that each of the factors in s. 679(3) are met.

Analysis

The appeal is not frivolous

[9] The applicant raises three grounds of appeal:

(1) The first trial judge erred in allowing the Crown's hearsay application to admit R.W.'s K.G.B. statement against all accused, including the applicant;

(2) The second trial judge erred in dismissing the applicant's application under s. 653.1 of the Criminal Code to re-litigate the hearsay application on the basis that the necessity component allowing for the K.G.B. statement to be admitted had changed since the first trial; and

(3) The second trial judge misapprehended the evidence and provided insufficient reasons for rejecting the applicant's evidence and accepting M.D.'s evidence.

[10] The applicant argues that the first trial judge erred in finding that the Crown had met their onus to demonstrate that R.W.'s K.G.B. statement was admissible. In particular, the applicant submits that the first trial judge erred in finding that, notwithstanding the fact that not all accused had an opportunity to cross-examine R.W., the statement met the necessity requirement and the threshold reliability requirement for admission under the principled exception to hearsay: see for e.g., R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. The applicant's position in the proposed appeal will be that insufficient weight was given to the fact that the applicant did not have an opportunity to cross-examine R.W., and that the limited cross-examination that did take place with counsel for another co-accused was not relevant to the applicant's case. Further, according to the applicant, the first trial judge failed to consider R.W.'s attempts to frustrate the cross-examination at the preliminary hearing when considering whether the reliability threshold had been met. Thus, according to the applicant, the statement should not have been admitted under the principled exception to hearsay.

[11] The Crown concedes that at least the ground of appeal relating to the admission of R.W.'s hearsay evidence is not frivolous. I agree. That said, the Crown submits that it is not a strong ground of appeal, as it effectively seeks to second-guess the weight the first trial judge gave to the factors relevant to admissibility, and overlooks the circumstances of R.W.'s testimony, including her evident distress at having to testify, the absence of grounds for her to be detained, and other contextual factors considered by the first trial judge in admitting R.W.'s K.G.B. statement that likely would attract deference on appeal.

[12] The Crown contends that the ground of appeal relating to the relitigation of the hearsay application on the basis of a change in the necessity requirement is without merit. The Crown asserts that the applicant has not raised any error with the second trial judge's finding that it would not be in the interest of justice to reopen this issue, as there had been, among other things, no new evidence, no new arguments advanced by the parties, no new issues, no change in the law, and the public interest in the timely and efficient conduct of criminal trials was furthered by the parties being bound by the earlier ruling of the first trial judge: R. v. Robinson, 2023 ONSC 5257, at para. 12.

[13] As for the remaining grounds, the Crown submits that the applicant's arguments relating to misapprehension of evidence and insufficient reasons, which are the only grounds relevant to the offences committed by the applicant against M.D., are without merit. The applicant argues that the trial judge failed to contemplate evidence that spoke to the abuse perpetrated against the applicant by her former co-accused, one of whom was her boyfriend at the time. The Crown argues that rejecting an accused's evidence is not a misapprehension. Similarly, the Crown submits that the insufficiency of reasons ground of appeal in relation to the trial judge's acceptance of M.D.'s evidence is bound to fail. As the Crown notes, trial judges are not required to address every inconsistency in the evidence of a witness, only major, material inconsistencies: R. v. R.C., 2021 ONCA 419, at para. 37. According to the Crown, the applicant has not explained how any of the alleged inconsistencies in M.D.'s evidence were material to an issue at trial.

[14] In Oland, at para. 20, Moldaver J. held that the "not frivolous" test "is widely recognized as being a very low bar". In this case, it is met, at least with respect to the ground of appeal relating to the admission of the K.G.B. statement. Overall, though, the grounds of appeal at this stage appear weak.

Detention is not necessary in the public interest

[15] This case turns on the public interest component of the test for bail pending appeal (s. 679(3)(c)). In setting out its position opposing the application, the Crown states, "[t]he Crown's opposition to this application is based solely on the public interest factor." The public interest component of the Oland framework includes two aspects: public safety and public confidence in the administration of justice. Given its concession that the applicant is not a threat to public safety, the Crown's position in this case relates to only the public confidence component, under which the court must balance enforceability and reviewability interests: Oland, at paras. 24, 47-52. Enforceability speaks to "the need to respect the general rule of the immediate enforceability of judgments", while reviewability speaks to society's interest in a meaningful appeal process in which those who successfully challenge their convictions do not improperly spend a significant period in custody: Oland, at para. 25. In conducting this balancing, public confidence in the administration of justice is to be assessed through the eyes of a reasonable member of the public, someone who is "thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values": Oland, at para. 47.

[16] In this analysis, I must bear in mind the Crown's concession that at least one ground of appeal raised by the applicant passes the "not frivolous" threshold, and that there are no public safety or flight risk concerns with respect to the applicant. I must also bear in mind the seriousness of the convictions, particularly the offence against M.D., who was under 18 at the time. That said, as the Supreme Court observed 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."

[17] This approach was adopted by Coroza J.A. in R. v. Diang (21 December 2023), M54734 (COA-23-CR-1317) (Ont. C.A.), relied on by the applicant, where bail was granted to an applicant who had been convicted of one count of procuring a person under the age of 18 to offer or provide sexual services contrary to s. 286.3(2) of the Criminal Code (and offences of uttering threats and mischief over $5,000) and sentenced to 3 years and five months in custody. Coroza J.A. stated:

Moving to the public confidence in the administration of justice, there is the public interest in enforceability. The applicant has been convicted of extremely serious procuring offences. However, the public confidence in the administration of justice is measured through the eyes of a reasonable member of the public, someone who is "thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values": Oland, at para. 47.

Overall, when I view this application through the lens of a reasonable member of the public, notwithstanding that the enforceability interest is strong – given the seriousness of the offence for which the applicant was convicted – it is mitigated by the lack of flight risk and public safety risk, given his proposed plan of release. Furthermore, the applicant's appeal is sufficiently strong that a reasonable member of the public would understand a decision to postpone enforcing the custodial sentence until the conviction and sentence have been subject to appellate review.

[18] The Crown relies on R. v. G.S., 2025 ONCA 627, where Trotter J.A. dismissed an application for bail pending appeal involving an applicant who was 30 at the time of the offences and who was convicted of sexual interference with three girls in their early teens, internet luring, and two counts of failing to comply with a release order: at paras. 1-3. He was sentenced to 6 years and 10 months in custody. While concluding that the appeal was not frivolous, Trotter J.A. held that, at para. 27:

Enforceability considerations must prevail in this case. The release of the applicant on bail pending appeal on these serious offences, based on weak grounds of appeal, would undermine, rather than inspire, confidence in the administration of justice. In these circumstances, release is not in the public interest.

[19] While both these cases provide helpful guidance, there is no precise analogy for the applicant's case, and each case must be assessed on its own merits. Viewing this case through the eyes of a reasonable member of the public and balancing the strong enforceability interest in this case in light of the serious offences, with the applicant's lack of public safety or flight risk, her strong plan of release, and the reviewability interest arising from an appeal that is not frivolous, I conclude her detention is not necessary in the public interest.

Disposition

[20] The application for bail pending appeal is granted.

"L. Sossin J.A."

Publication Ban

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.