



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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants
    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(iii)     REPEALED: S.C. 2014,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    identify the victim shall not be published in any document or broadcast or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 OF APPEAL FOR ONTARIO

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

DATE: 20211012

DOCKET: M52570

(C69437)

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Applicant

(Appellant)

and

N.S.

Responding Party

(Respondent)

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 respondents 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 judges 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.


