



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.M., 2020 ONCA 610

DATE: 20200928

DOCKET: M51788 (C67806)

Paciocco
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent
(Respondent)

and

S.M.

Appellant
(Applicant)

Christen Cole, for the appellant

Molly Flanagan, for the respondent

Heard: September 28, 2020 by video conference

REASONS
    FOR DECISION

[1]

On June 26, 2020, I denied an application by
    S.M. for release pending appeal. I ordered his continued detention on the
    tertiary ground because, in the unique circumstances of the case, he had not
    met his burden of satisfying me that his detention is not necessary in the
    public interest. Those circumstances included that his grounds of appeal did
    not appear to be strong; that pending trial he had breached interim judicial
    release conditions imposed on the same charges; and that one of the convictions
    being appealed is for obstruction of justice relating to a demand he made to
    the complainant that she recant.

[2]

S.M. has now renewed his application for release
    pending appeal based on what the Crown concedes to be a material change in
    circumstances. Specifically, S.M. now appeals on the additional ground that the
    trial judge erred in relying on s. 276 of the
Criminal Code
to prevent
    him from engaging in relevant cross-examination of the complainant regarding
    her prior experience as a sex worker, when s. 276 does not apply to the
    offences being prosecuted, specifically human trafficking and charges related
    to the commodification of sexual services. He contends that the trial judges
    ruling prevented him from effectively defending those charges on the theory
    that the complainant, as an experienced sex worker, was the one who conducted
    the sexual services business. S.M. also contends that this ruling prevented him
    from demonstrating that violence previously experienced by the complainant in
    her work as a sex worker gives credence to his claim that the complainants
    practice of checking in and out with him before and after providing sexual
    services related to her personal safety and did not reflect his involvement in
    the business.

[3]

The Crown accepts that the application of s. 276
    in this prosecution is controversial but argues that this is a new issue on appeal
    that S.M. should not be permitted to raise. The Crown may well prove to be
    correct but their argument is also contentious. In my view, it can no longer be
    said that S.M.s grounds of appeal lack strength. There is a realistic prospect
    that his appeal could succeed.

[4]

This elevates the importance of reviewability
    and changes the balance in this case. S.M.s bail release plan has also
    solidified now that the owner of the residence where he proposes to serve the
    house arrest condition of his planned release has given her approval. In the
    circumstances, S.M. has met the burden of establishing that his continued
    detention is no longer required on the tertiary ground.

[5]

I am prepared to release S.M. on appropriate
    conditions with the sureties proposed. Those conditions must include both house
    arrest and electronic surveillance. The parties should strive to agree upon an
    appropriate order and submit it for my approval or notify me of the need for a
    further hearing.

David
    M. Paciocco J.A.


