



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. MacMillan, 2020 ONCA 141

DATE: 20200219

DOCKET: M51246 (C67940)

MacPherson J.A.
    (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Gavin MacMillan

Applicant

Breana Vandebeek, for the applicant

Jennifer A.Y. Trehearne, for the respondent

Heard: February 12, 2020

REASONS FOR DECISION

[1]

The applicant Gavin MacMillan and his
    co-accused Enzo De Jesus Carrasco were found guilty, by a jury in a
trial
presided over by Dambrot J. of the Superior Court of
    Justice, of sexually assaulting and administering a noxious substance to a
    young woman in the College Street Bar, owned by the applicant.

[2]

The applicants and co-accuseds
    assault and violation of the complainant took place over approximately six
    hours. A great deal of it was captured by the bars surveillance camera. What
    the camera shows is profoundly troubling  substantial violence and nauseating
    degradation over the course of a prolonged physical and sexual assault on the
    complainant. For most of the time, the complainant was unable to resist due to
    severe intoxication by alcohol and cocaine the two men gave her.

[3]

On February 12, 2020, the applicant
    received a sentence of nine years imprisonment for the offences. He has
    prepared a draft Notice of Appeal. He seeks bail pending the hearing of the
    appeal.

[4]

The test for granting bail pending
    appeal is set out in s. 679(3) of the
Criminal Code
:

the judge of the court of appeal may order that the appellant
    be released pending the determination of his appeal if the appellant
    establishes that

(a) the appeal or application for leave to appeal is not
    frivolous;

(b) he will surrender himself into custody in accordance with
    the terms of the order; and

(c) his detention is not necessary in the public interest.

[5]

The Crown concedes that the appeal is not frivolous. The applicants
    principal ground of appeal is that the trial judge erred by determining, as did
    several other Ontario trial judges, that a recent federal law (Bill C-75)
    removing peremptory juror challenges applied retrospectively to criminal proceedings
    that had started, but not finished, before Bill C-75 came into force.

[6]

This argument is far removed from being frivolous. Indeed, it is almost
    the opposite; it is almost certain to succeed. That is because two months after
    this trial concluded, this court reached the opposite conclusion on the same
    issue. In
R. v. Chouhan
, 2020 ONCA 40, Watt J.A. said, at paras. 5 and
    217:

With respect to the
    temporal application of the amendments, I
decide that the abolition
    of the peremptory challenge applies prospectively, that is to say, only to
    cases where the accuseds right to a trial by judge and jury vested on or after
    September 19, 2019. But I conclude the amendment making the presiding judge the
    trier of all challenges for cause applies retrospectively, that is to say, to
    all cases tried on or after September 19, 2019.



[T]he abolition of peremptory challenges affected the
    substantive rights of the appellant, thus it should not have applied to the
    selection of the jury in his case
nor
    should it apply to the selection of the jury in other cases if the accused had
    a vested right before September 19, 2019 to a trial by judge and jury as it
    existed in the prior legislation
.
[Emphasis added.]

[7]

In terms of the relevant temporal factors, the present case is identical
    to
Chouhan
. It follows that, barring something unforeseen arising, the
    appeal in this case will almost certainly be allowed and a new trial will be
    ordered. Accordingly, this factor counts strongly in the applicants favour.

[8]

The Crown also concedes that the second factor in s. 679(3) of the
Criminal
    Code
is not in play on this appeal. The Crown says: It appears that any
    risk that the Applicant will flee the jurisdiction can be controlled pending
    appeal by the imposition of strict bail conditions.

[9]

I agree. The applicant complied with his bail conditions throughout the
    pre-trial and trial period. Moreover, he has agreed with the Crown that
    stringent bail conditions are appropriate. One of the bail conditions will be
    virtual house arrest:

5. You must reside
    with your surety [mother] at []

6. You must
    remain in your residence at all times except:

i. for medical emergencies involving you or a member of your
    immediate family (spouse, child, parent, sibling); or

ii. for purposes of travelling
    directly to, from and while at court appearances, or meeting with your lawyer,
    or for purposes of complying with this or any other order.

[10]

Taking
    these factors into account, it is highly unlikely that the applicant is a
    flight risk.

[11]

Turning
    to the third factor, the question for determination is whether the applicant
    has shown, on a balance of probabilities, that his detention is not necessary
    in the public interest: see
R. v. Oland
, 2017 SCC 17, at para. 19;
R.
    v. Iraheta
, 2018 ONCA 229, at para. 4.

[12]

The
    public interest factor in s. 679(3) of the
Criminal Code
has two
    components  public safety and public confidence in the administration of
    justice: see
Oland
, at para. 23, and
R. v. Farinacci
(1993),
    86 C.C.C. (3d) 32 (Ont. C.A.), at paras. 41-43. While public confidence in the
    administration of justice is rarely a central factor in the test, it ought to
    be considered when an offence is serious:
Oland
, at paras. 29 and 43.

[13]

The
    public confidence in the administration of justice factor is in play in this
    application. Public confidence requires a balancing of reviewability and
    enforceability. In determining whether public confidence requires detention,
    the relevant factors are: (1) the gravity of the offence; (2) the circumstances
    surrounding its commission; (3) the potential for a lengthy term of
    imprisonment; and (4) the strength of the appeal: see
Oland
, at paras.
    37-40.

[14]

The
    offences are grave. The applicant has been convicted of two serious offences 
    sexual assault and administering a noxious substance.

[15]

The
    circumstances surrounding the commission of the offence are, in a word,
    appalling. The applicants treatment of the complainant  captured on camera 
    was violent, degrading and prolonged.

[16]

The
    potential for a lengthy term of imprisonment is obvious  the applicant has
    been sentenced to nine years imprisonment.

[17]

However,
    and unusually on an application for bail, the applicants proposed appeal is
    beyond strong; it borders on certainty. On the issue of the jury selection
    process, the applicants case is identical to
Chouhan
. The jury
    selection process in the applicants trial was, therefore, defective. His
    appeal will likely be allowed and a new trial will likely be ordered.

[18]

The
    respondent disagrees, submitting that it is not almost certain that the
    applicants appeal will be allowed. The respondent makes two submissions in
    support of this position.

[19]

First,
    the respondent informed the court at the bail hearing that it has decided to
    seek leave to appeal
Chouhan
. The respondent submits that, because of
    the importance of
Chouhan
in the Ontario justice system (the
Chouhan
formula was followed in many trials), the Supreme Court is likely to grant
    leave. Then, the respondent submits, the Supreme Court might allow the appeal,
    rendering the applicants principal ground of appeal meritless.

[20]

The
    problem with this submission is that it is entirely speculative. On the ground
    now,
Chouhan
is the law in Ontario. It will be applied in this appeal.
    Almost certainly, that will mean a new trial in this case.

[21]

Second,
    the respondent submits that even if a 
Chouhan
error is established
    in this case, a new trial will not necessarily be the remedy. In a similar
    Ontario case,
R. v. Esseghaier and Jaser
, 2019 ONCA 672, where this
    court ordered a new trial because of a fault in the jury selection process, the
    federal Crown is seeking leave to appeal to the Supreme Court of Canada and, if
    leave is granted, will argue that the curative proviso in s. 686 of the
Criminal
    Code
should be applied to save the trial result. The respondent contends
    that, if this becomes the result in
Esseghaier and Jaser
, then a
    similar result would likely follow in this appeal.

[22]

This
    submission suffers from the same defect as the previous one: it is entirely
    speculative. On the ground now,
Esseghaier and Jaser
is the law in
    Ontario. And in
Esseghaier and Jaser
, Zarnett J.A., speaking for a
    unanimous court, said, at para. 95:

In my view, the curative proviso cannot be applied in this
    case. As pointed out in
Noureddine
, beyond the issue of the curative
    provisos application to a question that affects the proper constitution of the
    jury, and thus of the court which tried the appellants, the curative proviso
    cannot be applied unless there was no prejudice to the accused. As in
Noureddine
,
    the question here is not actual prejudice, which in these kinds of
    circumstances is impossible to gauge, but prejudice to the due administration
    of justice flowing from the denial of a jury selection method which was in law
    properly invoked:
Noureddine
, at paras. 62-64.

[23]

Taking
    these factors together, I cannot say public confidence in the administration of
    justice would be offended if the applicant were released on bail pending his
    appeal. He has a very strong case on the appeal. He complied with all the
    conditions of his bail before and during his trial. And as stated above, the
    public confidence factor does not exhaust the public interest: the stringent
    conditions on the applicants interim release are adequate to protect public
    safety. In my view, these are the controlling factors on this application,
    against the backdrop of this courts decisions in
Chouhan
and
Esseghaier
    and Jaser
.

[24]

For
    these reasons, the application for bail pending appeal is granted. The Crown
    and the applicant have agreed on the terms of bail, including virtual house
    arrest. Order to go in terms of the draft Release Order filed.

J.C. MacPherson J.A.


