



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.M., 2020 ONCA 427

DATE: 20200626

DOCKET: M51598 (C67806)

Paciocco J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Applicant/Appellant

Anthony Moustacalis and Christen Cole,
    for the applicant

Molly Flanagan, for the respondent

Heard: June 25, 2020 by video
    conference

REASONS FOR DECISION

OVERVIEW

[1]

October 11, 2019, S.M. was convicted of seven human
    trafficking related offences, including assault causing bodily harm, alleged to
    have been committed against a single complainant. He was also convicted of an
    eighth offence, obstruction of justice, for attempting to discourage the
    complainant from co-operating with the police by yelling at her when he was
    being arrested for assaulting her and she was in the process of giving a police
    statement.

[2]

On November 28, 2019, S.M. was sentenced for
    these offences to a global sentence of 66 months imprisonment, minus 27 months
    of credit for pre-sentence custody. He is now applying before me pursuant to s.
    679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46

for judicial
    interim release pending appeal.

[3]

The Crown contests S.M.s judicial interim
    release application only on the tertiary ground. It contends that, given the
    seriousness of the crimes including the length of the sentence imposed; the low
    plausibility of S.M.s proposed grounds of appeal; the inadequacy of his
    release plan; and the absence of any case specific COVID-19 concerns, S.M. has
    not met his onus of establishing that his detention is not necessary in the
    public interest. More specifically, he has not demonstrated on the balance of
    probabilities that his release would not harm public confidence in the administration
    of justice.

[4]

I agree with the Crown. S.M. has not met the
    burden he bears. His application for interim judicial release is denied.

ANALSIS

[5]

The Crown accepts that S.M.s grounds of appeal
    clear the very low not frivolous hurdle found in s. 679(3)(a) of the
Criminal

Code
.

[6]

The Crown also concedes that S.M. has
    established that he would surrender himself into custody in accordance with the
    terms of a release order. This concession is well-taken. S.M. has important
    ties to the community, as well as gainful self-employment in the entertainment
    industry in his community, and he has surrendered himself for bail release
    hearings on two occasions in connection with the current matters.

[7]

The Crown contends that S.M. has not satisfied
    this third precondition to judicial interim release pending appeal, provided
    for in s. 679(3)(c) of the
Criminal

Code
. It takes issue
    with S.M.s submission that he has established on a balance of probabilities
    that his detention is not necessary in the public interest.

[8]

I do not understand the Crown to be submitting
    that SM.s detention pending appeal is in the public interest because he has
    not disproved that he poses a substantial likelihood of reoffending, thereby
    warranting his detention on the secondary ground: see
R. v. Stojanovski
,
    2020 ONCA 285, at para. 18. That submission could not be accepted on this
    record. Instead, the Crown relies on the tertiary ground. The Crowns position
    is that in the circumstances, including the residual risk S.M. poses to public
    safety, S.M. has failed to show that his release would not diminish public
    confidence in the administration of justice in the eyes of reasonable members
    of the public:
Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 47.

[9]

The public confidence determination requires a
    balancing to be undertaken between the public interest (including his own
    interest) in having a meaningful review of his convictions before he is made to
    begin serving his sentence pending appeal, and the public enforceability
    interest:
R. v. Oland
, [2017] 1 S.C.R. 250 at paras. 23-26.

[10]

Of significance, S.M. no longer benefits from
    the presumption of innocence. To reflect the absence of the presumption of
    innocence, the general rule in judicial interim release applications pending
    appeal is that there should be immediate enforceability of judgments:
Oland
,
    at para. 25. The burden is therefore on the applicant, in this case S.M., to
    demonstrate on a balance of probabilities that the reviewability interest outweighs
    the enforceability interest. Several factors inform this determination,
    including the seriousness of the crimes S.M. was convicted of; the strength of
    his proposed grounds of appeal, and the residual risk he presents, bearing in
    mind the proposed plan of release.

A.

THE SERIOUSNESS OF THE CRIMES

[11]

The seriousness of the crimes S.M. was convicted
    of may be determined by the gravity of the offences he was charged with, the
    circumstances surrounding their commission, and the potential length of imprisonment.
    This ultimate determination will be informed by the trial judges reasons for
    sentence:
Oland
, at para. 38.

[12]

S.M. acknowledges that, by their nature, the
    offences he was convicted of are serious or grave. That concession is
    appropriate. The seven human trafficking charges S.M. was found to have
    committed criminalize the exploitation and domination of a victim so that the
    victim will provide sexual services for the financial benefit of the offender.

[13]

Even bearing in mind S.M.s observation that the
    offences he was convicted of involved only a single complainant, the
    circumstances surrounding the commission of these offences underscore the
    seriousness of the crimes S.M. has been convicted of committing. The trial
    judge found that S.M. persuaded the complainant, who he had been in a personal relationship
    with and who was attempting to overcome substance abuse issues, to re-enter the
    sex trade. She found that S.M. directed this vulnerable womans activity in the
    sex trade during an ongoing period, used violence against her that broke her
    ribs, and controlled the proceeds of her sex work. The mid-range penitentiary
    sentence S.M. received  66 months, or five and one-half years  underscores
    the seriousness of the offences.
[1]


[14]

In my view, the seriousness of the crimes S.M.
    was convicted of committing pulls in favour of the enforcement interest. The
    more serious an offence is, the more urgent the enforcement interest becomes.
    The seriousness of the crimes may also enhance concern about the residual
    public safety risks an applicant poses, and it does so here. A person who would
    commit the offences S.M. has been convicted of will have demonstrated their
    readiness to exploit, diminish and harm a vulnerable human being in their own
    self-interest on an ongoing basis, and then attempt to interfere in the
    administration of justice to frustrate their own prosecution.

B.

The STRENGTH OF THE GROUNDS OF APPEAL

[15]

Grounds of appeal may be strong enough to
    mitigate the residual risk to public safety suggested by the seriousness of the
    offences the applicant is appealing. Grounds of appeal that clearly surpass the
    not frivolous threshold set in s. 679(3)(a) of the
Criminal

Code
can also play a central role in enhancing that public interest in reviewability:
Oland

at paras. 40, 44. However, based on the record before me,
    I am not persuaded that the general legal plausibility of S.M.s grounds of
    appeal promotes his application for release.

[16]

I can give no weight to the suggestion that
    there could be a supplemental ground of appeal relating to the prior sexual
    history evidence. S.M.s judicial interim release application lacks entirely the
    details necessary to evaluate whether such a ground of appeal would have any
    merit.

[17]

The one legal error that is alleged relates to a
    paraphrase by the trial judge of the first two legs of the
R. v. W.D.
,
    [1991] 1 S.C.R. 742,

self-direction. In describing the first branch of
    the
W.D.
test the trial judge replaced the familiar reference to believing
    exculpatory evidence with accept[ing] as accurate evidence that is
    inconsistent with a finding that the accused is guilty. In the second branch,
    she substituted the familiar reference to not believing the exculpatory
    evidence but being left in reasonable doubt by it, with being unsure whether
    the evidence that is inconsistent with guilt is accurate. Although I remain
    open minded and will refrain from engaging the issue more extensively in an
    interim judicial release application, it is not immediately evident to me that this
    ground of appeal clearly surpasses the not frivolous standard. Put otherwise,
    I cannot conclude on the record before me the apparent strength of this ground
    of appeal leans in favour of reviewability before enforcement.

[18]

The remaining proposed grounds of appeal relate
    to the trial judges credibility evaluation, with claims made of an
    unreasonable verdict, misapprehension of evidence including the failure to give
    effect to evidence, and uneven scrutiny. Although the objections made by S.M. to
    the trial judges reasoning could, with the benefit of a full record, prove to
    be of great substance, these grounds of appeal venture into areas where
    significant deference is afforded to trial judges. This is so in a case where
    the trial judge found confirming evidence for the complainants account, and where
    the trial judge gave reasons for finding the accuseds version of events to be
    implausible and incredible. The strength of these remaining grounds of appeal
    do not support reviewability before enforcement, either.

C.

PUBLIC Risk and the release plan

[19]

S.M. had no prior criminal record when charged with
    the offences now under appeal. This is an important indication when taken in
    isolation that S.M. would probably keep the peace and comply with conditions of
    release, were I to grant his current application.

[20]

However, the impact of S.M.s prior clean record
    is diminished by the ongoing, exploitive and violent crimes he is now appealing.
    More significantly, the impact of his clean record is materially weakened by
    the fact that S.M. breached bail release conditions put in place relating to
    the charges he is now appealing, despite having a surety in place who had
    pledged $2,000 in support of his application. In doing so he has undermined the
    confidence that can be had that the risk of his behaviour to a surety would
    inspire his compliance.

[21]

Specifically, on April 1, 2019, S.M. pleaded
    guilty to two counts of failing to comply with conditions of his release that
    were put in place to reduce the risk of reoffence, a curfew condition and a
    condition that he not attend hotels. He was charged with these offences within
    six months of having been placed on judicial interim release. As the result of
    this event, S.M. was detained pending his trial. Consequently, he is not able
    to demonstrate through his prior experience that he would comply with his
    conditions of release. Moreover, one of the offences now under appeal 
    obstruction of justice  is an offence against the administration of justice
    found to have been committed in effort to impede the prosecution of one of the
    offences now under appeal.

[22]

In these circumstances a member of the public
    would reasonably apprehend that there is a material residual risk that if S.M. were
    to be released, he may well reoffend or commit offences against the
    administration of justice, notwithstanding his once clean record. Given this reasonable
    apprehension, his release could harm public confidence in the administration of
    justice.

[23]

Can this reasonable apprehension be sufficiently
    ameliorated by the proposed judicial interim release plan? I am not satisfied
    that it can be.

[24]

S.M. proposes a judicial interim release plan
    that would involve 24-hour house arrest when not in the presence of one of two identified,
    suitable sureties who are prepared to pledge a combined total of $20,000. Electronic-monitoring
    is also proposed, if required.

[25]

Notwithstanding the generosity and good standing
    of S.M.s proposed sureties, I share the Crowns concerns about the residency part
    of this plan. It is proposed that S.M. be released immediately to live with one
    of his sureties, in the suretys mothers home, until the surety finds and
    leases his own residence. Notably, there is no indication in the supporting
    materials that the suretys mother has consented to have S.M. move into her
    home pending the anticipated move. Moreover, the proposed residential surety
    works 11-hour days away from the home, 6 days a week. He will not be present to
    supervise S.M. for long tracts of time. Although this concern can be partially
    addressed with electronic monitoring, it is notable that the crimes S.M. has
    been convicted of were committed, in part, using electronic communication.

D.

COVID-19

[26]

The risk that institutional incarceration can
    increase exposure to COVID- 19 infection is a relevant and important
    consideration. However, S.M. has presented no case-specific foundation raising concern
    based on his health or demographic profile. Moreover, the Crown has provided
    evidence that at Joyceville Institution, where S.M. is currently residing, there
    have been no positive tests for COVID-19 among inmates. Without case-specific
    evidence of particular risk, COVID-19 considerations are of reduced weight:
R.
    v. Kazman
, 2020 ONCA 251, at para. 20 (Harvison Young J.A., in Chambers);
R.
    v. Jesso
, 2020 ONCA 280, at paras. 36-38 (Brown J.A., in Chambers). Appropriately,
    S.M. has not stressed his personal safety as a central consideration in his
    judicial interim release application.

E.

CONCLUSION

[27]

S.M. has failed to discharge his burden
    of satisfying me that
his detention is not necessary
    in the public interest.  I am fully aware that it should not be common to deny
    judicial interim release based on the tertiary ground:
Oland
, at para. 29. However, S.M., who was detained while he was
    presumed to be innocent of these serious charges, now seeks to be released
    pending appeal after having been convicted of the bulk of the charges against
    him. Moreover, he does so in reliance on grounds of appeal that do not appear
    on the record to be strong, after having breached interim judicial release
    conditions imposed on the same charges, and when one of the convictions being
    appealed is for obstruction of justice. In these unique circumstances I am not
    persuaded that he has met his burden. His compliance with non-communication
    orders relating to the complainant since being detained does not overcome these
    concerns.

[28]

The application
    for judicial interim release is denied.

David M. Paciocco J.A.





[1]
As an aside, the length of S.M.s sentence also reduces the urgency
    in releasing him pending appeal. Confidence in the administration of justice may
    be harmed where release is denied, and the sentence would be substantially
    served by the time his appeal is heard. That is not this case.


