



WARNING

This appeal is subject to a mandatory publication ban
    under s. 278.95. This section of the

Criminal
    Code
provides:

278.95 (1)
A person shall not publish in any document, or broadcast or
    transmit in any way, any of the following:

(a)     the contents of
    an application made under subsection 278.93;

(b)     any evidence
    taken, the information given and the representations made at an application
    under section 278.93 or at a hearing under section 278.94;

(c)     the decision of
    a judge or justice under subsection 278.93(4), unless the judge or justice,
    after taking into account the complainants right of privacy and the interests
    of justice, orders that the decision may be published, broadcast or
    transmitted; and

(d) the determination made
    and the reasons provided under subsection 278.94(4), unless

(i)       that
    determination is that evidence is admissible, or

(ii)      the judge or
    justice, after taking into account the complainants right of privacy and the
    interests of justice, orders that the determination and reasons may be
    published, broadcast or transmitted.

(2)     Every person who
    contravenes subsection (1) is guilty of an offence punishable on summary
    conviction.




WARNING

The presiding justice 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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacMillan, 2020 ONCA 762

DATE: 20201127

DOCKET: M51946 (C67940)

Huscroft J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Gavin MacMillan

Appellant (Moving Party)

Breana Vandebeek, for the moving party

Molly Flanagan, for the responding
    party

Heard by videoconference: November 26, 2020

REASONS FOR DECISION


[1]

The appellant and his co-accused were convicted
    of sexually assaulting and administering a noxious substance to the complainant
    and sentenced to a term of 9 years imprisonment. He is appealing both
    conviction and sentence.

[2]

The appellant was granted bail pending appeal
    with a surrender date of December 1, 2020. The Crown is not consenting to an
    extension of the appellants bail beyond this date. As a result, the appellant
    has brought an application to vary his release order to extend the surrender
    date.

[3]

For the reasons that follow, I conclude that the
    application should be granted.

[4]

On the initial bail application, the Crown
    conceded that the appellants appeal was not frivolous and that he was not a
    flight risk but contested whether detention of the appellant was necessary in
    the public interest. MacPherson J.A. concluded that, despite the seriousness of
    the offence, the appellant was all but certain to succeed on appeal given this
    courts decision in
R. v. Chouhan
, 2020 ONCA 40, 194 O.R. (3d) 365. As
    a result, he concluded that the public interest balance favoured reviewability
    rather than enforceability and granted bail.

[5]

Subsequently, the Supreme Court of Canada
    overturned this courts decision in
R. v. Chouhan

(October 13,
    2020), S.C.C. 39062. Following release of the courts decision, the Crown
    informed the appellant
that in light of the change in
    the law, it would not consent to a further extension of his bail because the
    appellant could no longer show that his detention was not necessary in the
    public interest.

[6]

As on the original application, the Crown
    concedes that the first two criteria set out in the
Criminal Code
, s.
    679(3)(a) and (b) are satisfied. Specifically, the Crown concedes that the
    appeal is not frivolous and that the appellant will surrender into custody as
    required. Accordingly, the onus is on the appellant to establish that his
    detention is not necessary in the public interest under s. 679(3)(c). The
    public interest criterion has two components, public safety and public
    confidence in the administration of justice:
R. v. Oland
, 2017 SCC 17,
    [2017] 1 S.C.R. 250, at paras. 23, 26. The Crown accepts that any public safety
    concerns here can be addressed by bail conditions.

[7]

In determining whether detention is necessary to
    maintain public confidence in the administration of justice, the relevant
    factors are: (1) the gravity of the offence; (2) the circumstances surrounding the
    commission of the offence; (3) the potential for a lengthy term of
    imprisonment; and (4) the strength of the appeal.

[8]

There is no question as to the gravity of the offences
    in this case or the egregious circumstances surrounding their commission. The
    question is, how is this to be balanced against the strength of his appeal?

[9]

The appellant proposes to make several arguments
    against conviction. First, he contests the decision to admit expert evidence and
    maintains that the expert was not impartial. Second, he argues that the trial
    judge erred in his instructions to the jury on the issue of consent. Third, he
    argues that the trial judge erred in his ruling on s. 276 of the
Criminal
    Code
. Fourth, the appellant argues that the trial judge erred in his
    ruling on the mistrial application.

[10]

The Crown submits that the first ground is
    arguable, but not strong, and describes the other three grounds as weak or frivolous.

[11]

At this stage of the proceedings, the
    appellants proposed arguments on appeal do not appear to me to be strong, but
    it is difficult to say more than this in the absence of a complete record. The
    Crown concedes that one of the grounds is arguable and it is fair to conclude
    that this ground clearly surpasses the minimal standard required to meet the
    not frivolous criterion. That is as much as can be said by way of a
    preliminary assessment.

[12]

In other circumstances, the enforceability
    interest might be thought to outweigh the reviewability interest. But the circumstances
    of this case are unusual, in that
the appellant has already been on bail pending appeal for nine months. Prior
    to that, he was on bail pre-trial for over three years, and the bail period has
    been uneventful. As the Supreme Court stated 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.

[13]

Given that an appeal can be heard relatively
    soon I conclude that it is appropriate to extend the appellants bail for the
    brief period that will be necessary.

[14]

Accordingly, the application is granted. The
    draft order prepared by the appellant will issue if the Crown agrees to its
    terms. If not, I will resolve the terms of the order before expiry of the bail
    on December 1, 2020.

Grant Huscroft J.A.


