Her Majesty the Queen v. Durrani [Indexed as: R. v. Durrani]

94 O.R. (3d) 350

Court of Appeal for Ontario,

MacPherson J.A. (In Chambers)

December 16, 2008

Criminal law -- Bail -- Review -- Accused denied bail by justice of peace and twice by judges of superior court -- Trial judge hearing pre-trial motions but accused not yet in charge of a jury -- Accused's trial not having started for purposes of s. 523(2)(a) of Criminal Code -- [page351] Accused's application for review of detention order governed by s. 520 of Code -- Court of Appeal declining to exercise its concurrent jurisdiction to hear bail review application before trial in absence of special circumstances -- Criminal Code, R.S.C. 1985, c. C.-46, ss. 520, 523(2)(a).

The accused was charged with participating in or contributing to a terrorist group. He was denied bail by a justice of the peace. During the preliminary inquiry, he was again denied bail by a Superior Court judge. After a direct indictment was filed, another Superior Court judge rejected the accused's fresh application for bail. The accused brought an application for judicial review of that order.

Held, the application should be dismissed.

The accused's trial had not yet started for the purposes of s. 523(2)(a) of the Criminal Code. The trial judge was hearing pre-trial motions, but the accused had not been arraigned and had not entered a plea. Even if the accused had been arraigned, his trial would not have started until he was given in charge of the jury. Accordingly, the request for bail had to be determined under s. 520 of the Code.

There is concurrent jurisdiction in the Superior Court and the Court of Appeal to conduct a bail review under s. 520 of the Code. However, absent special circumstances, courts of appeal should deal with bail pending appeal and superior courts should deal with bail prior to and during a trial. The accused argued that jurisdiction should be exercised because being directly indicted amounted to a special circumstance. He argued that if the Court of Appeal did not assume jurisdiction, he would have to bring a bail review before a judge of the same court as the judge whose order was being reviewed. This argument is inconsistent with the language of s. 520, which contemplates a judge of the same court reviewing a bail order made by another judge. There are no special circumstances justifying the intervention of the Court of Appeal.

APPLICATION for review of a detention order of Hill J. of the Superior Court of Justice dated June 6, 2008.

Cases referred to

R. v. McCreery, 1996 17941 (BC SC), [1996] B.C.J. No. 2018, 110 C.C.C. (3d) 561, 32 W.C.B. (2d) 144 (S.C.), apld R. v. Massey, [2005] B.C.J. No. 640, 2005 BCCA 174, 64 W.C.B. (2d) 524; R. v. Vukelich, 1993 2438 (BC CA), [1993] B.C.J. No. 3076, 32 B.C.A.C. 81, 22 W.C.B. (2d) 283, 53 W.A.C. 81 (C.A.), not folld

Other cases referred to

R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205; R. v. Basarabas, 1982 216 (SCC), [1982] 2 S.C.R. 730, [1982] S.C.J. No. 96, 144 D.L.R. (3d) 115, 46 N.R. 69, [1983] 4 W.W.R. 289, 2 C.C.C. (3d) 257, 31 C.R. (3d) 193; R. v. Carrier, 1979 2907 (MB CA), [1979] M.J. No. 93, 2 Man. R. (2d) 168, 51 C.C.C. (2d) 307, 4 W.C.B. 102 (C.A.); R. v. Chan, [2000] A.J. No. 891, 2000 ABCA 214, [2001] 1 W.W.R. 289, 85 Alta. L.R. (3d) 72, 261 A.R. 351, 146 C.C.C. (3d) 494, 35 C.R. (5th) 260, 77 C.R.R. (2d) 99, 47 W.C.B. (2d) 177; R. v. Cook, 1986 4623 (ON CA), [1986] O.J. No. 73, 13 O.A.C. 238, 26 C.C.C. (3d) 188 (C.A.); R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510, 7 W.C.B. 478 (C.A.); R. v. MacIver, 1998 17788 (MB CA), [1998] M.J. No. 480, 131 Man. R. (2d) 84, 40 W.C.B. (2d) 82 (C.A.); R. v. Mallett, 1992 4021 (MB CA), [1992] M.J. No. 374, [1992] 5 W.W.R. 138, 83 Man. R. (2d) 116, 75 C.C.C. (3d) 251, 17 W.C.B. (2d) 67 (C.A.); R. v. Petrie, 1984 3678 (MB CA), [1984] M.J. No. 450, [1985] 2 W.W.R. 128, 30 Man. R. (2d) 145 (C.A.); R. v. Ranger, 2003 15438 (ON CA), [2003] O.J. No. 5126, 180 O.A.C. 138, 61 W.C.B. (2d) 36 (C.A.); R. v. Saracino, 1989 7197 (ON SC), [1989] O.J. No. 28, 47 C.C.C. (3d) 185, 6 W.C.B. (2d) 236 (H.C.J.); R. c. Savoie, 2001 4343 (NB CA), [2001] A.N.-B. no 267, 239 N.B.R. (2d) 291 (C.A.); R. v. Semenick, 1984 3680 (MB CA), [1984] M.J. No. 207, [1985] 2 W.W.R. 132, 30 Man. R. (2d) 147 (C.A.); [page352] R. v. Smith, [2002] S.J. No. 534, 2002 SKCA 103, [2003] 3 W.W.R. 39, 223 Sask. R. 133, 9 C.R. (6th) 1, 55 W.C.B. (2d) 475; R. v. Vézina, 1986 93 (SCC), [1986] 1 S.C.R. 2, [1986] S.C.J. No. 2, 25 D.L.R. (4th) 82, 64 N.R. 93, J.E. 86-197, 23 C.C.C. (3d) 481, 49 C.R. (3d) 351; R. v. Zeneli, [2003] M.J. No. 136, 2003 MBCA 50, 173 Man. R. (2d) 175, 174 C.C.C. (3d) 477, 57 W.C.B. (2d) 328

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [as am.], 83.18(1), 184.2, 184.3, 185 [as am.], 186 [as am.], 187 [as am.], 188 [as am.], 196 [as am.], 258 [as am.], 468, 470 [as am.], 488.1 [as am.], 490 [as am.], 490.2, 493 [as am.], 515 [as am.], 520 [as am.], 523, (2), (a), 680 [as am.], 699 [as am.]

Authorities referred to

Trotter, Gary, The Law of Bail in Canada (Toronto: Thomson Canada Ltd., 1999)

Manuel Azevedo, for applicant. Clyde Bond and Geoffrey Roy, for respondent.

A. Introduction

[1] The applicant, Amin Durrani, has been charged with two counts of knowingly participating in or contributing to a terrorist group contrary to s. 83.18(1) of the Criminal Code, R.S.C. 1985, c. C-46. Three times he has applied for bail, once to a Justice of the Peace and twice to different superior court judges. Three times his application has been rejected.

[2] The applicant seeks to have a single judge of this court review the third denial of bail. This application poses questions about the interpretation of ss. 520 and 523 of the Code, as well the question of whether this court should decline to exercise the concurrent jurisdiction it holds along with the Superior Court to make the order sought by the applicant.

B. Facts

[3] The applicant was arrested and charged on June 2, 2006 in an information alleging the commission of terrorism offences. He was detained and has remained in custody since that date.

[4] A preliminary inquiry commenced on May 28, 2007 and continued until September 24, 2007, at which time a direct indictment was filed with the Superior Court of Justice (Central West Region) in Brampton.

[5] The applicant has made three applications for judicial interim release since his arrest. Shortly after his arrest, the applicant was [page353] denied bail by Justice of the Peace Fallon on August 15, 2006. During the preliminary inquiry, Dawson J. of the Superior Court of Justice denied bail on July 26, 2007. Finally, after the filing of the direct indictment, Hill J. of the Superior Court of Justice rejected the applicant's fresh application for bail on June 6, 2008.

[6] The applicant seeks judicial review of Hill J.'s order denying bail.

C. Issues

[7] There are two issues raised by this appeal that concern ss. 523(2)(a) and 520 of the Criminal Code: (1) Is the applicant precluded from making this application in this court because his trial has started for the purposes of s. 523(2)(a) of the Code and therefore it is only the trial judge who can conduct a bail review at this stage of the proceedings? (2) If the trial has not started for the purposes of s. 523(2) (a), and s. 520 of the Code governs the application, should this court decline to exercise its jurisdiction in favour of the admitted jurisdiction of the Superior Court of Justice?

D. Analysis

(1) Section 523(2)(a) of the Criminal Code

[8] The respondent contends that the applicant's trial has commenced and, accordingly, by virtue of s. 523(2)(a) of the Criminal Code, this court has no jurisdiction to review Hill J.'s order denying bail to the applicant. Section 523(2)(a) provides:

523(2) Notwithstanding subsections (1) and (1.1), (a) the court, judge or justice before whom an accused is being tried, at any time, . . . . .

may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. (Emphasis added)

[9] In R. v. Basarabas, 1982 216 (SCC), [1982] 2 S.C.R. 730, [1982] S.C.J. No. 96, the Supreme Court of Canada discussed in a general way when a jury trial commences. Dickson J. stated, at pp. 740-41 S.C.R.:

The question of fixing the time of the commencement of a jury trial has been the subject of some difficulty in the past. It seems possible, however, on the authorities and on principle to reach the following conclusions. [page354]

First, the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied. . . . . .

Finally, the weight of authority supports the position of the accused that a jury trial commences when the accused has been placed in charge of the jury. Canadian courts have frequently cited the judgment of Ritchie C.J. [in R. v. Morin (1890), 1890 38 (SCC), 18 S.C.R. 407] in support of a narrow interpretation of the word "trial" in respect of a jury trial.

[10] In a similar vein, in R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.), Martin J.A. provided a fulsome description of the components of a trial, at p. 527 C.C.C.:

"[T]rial" for the purpose of the principle that an accused is entitled to be present at his trial clearly includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge's charge, including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty.

[11] This description was approved by the Supreme Court of Canada in R. v. Vézina, 1986 93 (SCC), [1986] 1 S.C.R. 2, [1986] S.C.J. No. 2 and R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84.

[12] None of these cases dealt with bail reviews. However in R. v. McCreery, 1996 17941 (BC SC), [1996] B.C.J. No. 2018, 110 C.C.C. (3d) 561 (S.C.), Romilly J. considered all of these cases and concluded that, for bail purposes, a trial did not commence until the accused was put in charge of the jury.

[13] In his valuable text, The Law of Bail in Canada (Toronto: Thomson Canada Ltd., 1999), Gary Trotter (now Justice Trotter) described and considered McCreery and concluded, at p. 347:

The approach in McCreery is sound. It is faithful to the wording of s. 523(2)(a) and the review provisions as a whole. It is an approach that is fair to litigants. The normal avenues of pre-trial review (ss. 520, 521 and 680) remain available until the trial actually gets underway.

[14] I agree. In the present case, it is true that a trial judge has been designated and that he has been hearing a variety of pre-trial motions for several months. However, the applicant has not been arraigned, nor has he entered a plea. [See Note 1 below] Moreover, it appears [page355] from the record that the pre-trial motions may continue for many more months. In these circumstances, I do not think that the applicant, per s. 523(2) (a) of the Code, "is being tried", at least for purposes of the bail provisions of the Code.

[15] Accordingly, the applicant's request for bail must be determined under s. 520 of the Code, an inquiry to which I now turn.

(2) [Section 520](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[16] As a preliminary point, I note that there is concurrent jurisdiction in the Superior Court and this court to conduct a bail review under s. 520 of the Code. Once it has been determined that the applicant's trial has not commenced for bail purposes, his application for a review of Hill J.'s order denying him bail becomes governed by s. 520 of the Criminal Code, which provides:

520(1) If a justice . . . makes an order under subsection 515(2), (5), (6), (7), (8) or (12) . . . the accused may, at any time before the trial of the charge, apply to a judge for a review of the order. (Emphasis added)

[17] Section 493 of the Code defines "judge" as "in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province". In s. 2 of the Code, "superior court of criminal jurisdiction" is defined as "in the Province of Ontario, the Court of Appeal or the Superior Court of Justice".

[18] The question raised by this appeal is whether, in a clear concurrent jurisdiction situation, the Court of Appeal should exercise or decline its jurisdiction to hear a bail review application in the circumstances of this case.

[19] Historically, most courts of appeal in Canada have been reluctant to exercise their concurrent jurisdiction in this domain. As explained by Trotter in The Law of Bail in Canada, at pp. 301-302:

While there is concurrent jurisdiction under ss. 520 and 521 in two levels of court in most provinces, the overwhelming majority of bail reviews are heard in the Superior or Supreme Court. The courts of appeal have shown great reluctance to exercise their jurisdiction under ss. 520 or 521. Attempts to invoke the jurisdiction of an appeal court judge in these circumstances often occur after an application has already been heard in the Superior Court pursuant to ss. 520 or 521. On numerous occasions, appellate judges have said that the jurisdiction of a judge of a court of appeal ought to be invoked only in "special" or "exceptional" circumstances.

[20] Although the second edition of The Law of Bail in Canada was published in 1999, this passage is still valid. By my count, the courts of appeal in four provinces decline to exercise their concurrent jurisdiction under s. 520 of the Code absent special or exceptional circumstances: see R. c. Savoie, 2001 4343 (NB CA), [2001] A.N.-B no 267, 239 N.B.R. (2d) 291 (C.A.) (Ayles J.A. in Chambers); [page356] R. v. Petrie, 1984 3678 (MB CA), [1984] M.J. No. 450, [1985] 2 W.W.R. 128 (C.A.) (Matas J.A. in Chambers); R. v. Semenick, 1984 3680 (MB CA), [1984] M.J. No. 207, [1985] 2 W.W.R. 132 (C.A.) (Monnin C.J.M. in Chambers); R. v. Mallett, 1992 4021 (MB CA), [1992] M.J. No. 374, [1992] 5 W.W.R. 138 (C.A.) (Scott C.J. in Chambers); R. v. MacIver, 1998 17788 (MB CA), [1998] M.J. No. 480, 131 Man. R. (2d) 84 (C.A.) (Lyon J.A. in Chambers); R. v. Zeneli, 2003 MBCA 50, [2003] M.J. No. 136, 174 C.C.C. (3d) 477 (C.A.) (Huband J.A. in Chambers); R. v. Smith, 2002 SKCA 103, [2002] S.J. No. 534, [2003] 3 W.W.R. 39 (C.A.) (Sherstobitoff J.A. in Chambers); and R. v. Chan, 2000 ABCA 214, [2000] A.J. No. 891, 146 C.C.C. (3d) 494 (C.A.) (Berger J.A. in Chambers).

[21] In only one province, British Columbia, does it appear that a court of appeal will exercise its concurrent jurisdiction under s. 520 of the Code as a matter of course: see R. v. Vukelich, 1993 2438 (BC CA), [1993] B.C.J. No. 3076, 32 B.C.A.C. 81 (C.A.) (Wood J.A. in Chambers); and R. v. Massey, [2005] B.C.J. No. 640, 2005 BCCA 174 (Saunders J.A. in Chambers).

[22] In the provinces where courts of appeal decline to exercise their concurrent jurisdiction to conduct bail reviews under s. 520 of the Code absent special circumstances, what constitutes special circumstances has been defined quite narrowly. Some examples of special circumstances include: where there has been a substantial period of delay due to the absence of a transcript from the bail review, the superior court judge refused to proceed without the transcript, and it is essential and urgent that the matter be dealt with (R. v. Carrier, 1979 2907 (MB CA), [1979] M.J. No. 93, 51 C.C.C. (2d) 307 (C.A.) cited in Mallett); where no superior court judge is readily available (Mallett); and where two superior court judges on two bail applications applied differing interpretations of s. 515 of the Code and the case law (Smith). Of course, none of these exceptions applies in the present case. In his submissions, the applicant raises a number of arguments in order to overcome this problem.

[23] First, the applicant asserts that in Ontario, the British Columbia practice of exercising the concurrent jurisdiction provided in s. 520 of the Code, represented by Vukelich, should be preferred over the "special circumstances" jurisprudence applied in New Brunswick, Manitoba, Saskatchewan and Alberta.

[24] Second, the applicant appears to suggest that, in the alternative, the special circumstance test should not be applied in this case as it is only applied in s. 520 cases that do not involve direct indictments.

[25] Third, and partly in conjunction with his second argument, the applicant submits that to allow another superior court judge to review the bail order of a fellow judge on the same court [page357] is not in keeping with the hierarchical scheme of the bail system in Canada.

[26] The applicant's second argument can be quickly addressed. Appellate level courts have applied the special circumstances test in cases of direct indictment. In fact, several of the case authorities on the interpretation of the jurisdictional issue in s. 520 of the Code were direct indictment cases: see MacIver, Zeneli and Chan.

[27] In response to the applicant's first argument, although courts may not be uniform in their application of the special circumstances test, the overwhelming majority of appellate decisions on this topic favours the use of the test in cases such as these. Indeed, in response to the applicant's third argument, it becomes clear why I believe that the special circumstances test should be adopted in Ontario, and further, why a direct indictment charge does not qualify as a special circumstance.

[28] In his submissions, the applicant emphasizes that his trial is now proceeding as a direct indictment trial. It follows that the first bail review, after the direct indictment was preferred, was conducted by a superior court judge and, if I decline to exercise this court's jurisdiction, the next bail review will also be conducted by a superior court judge. This reality, says the applicant, ignores the fact that in most cases there is no direct indictment and the initial bail order made by a provincial court judge will be reviewed by a superior court judge. Accordingly, there is a disconnect between the hierarchy anchor in many bail review situations and the absence of such an anchor in direct indictment cases if courts of appeal do not exercise their concurrent jurisdiction under s. 520 as a matter of course. The need for this hierarchy, as explained by the applicant's counsel in his oral submissions, is the difficulty a superior court judge might have in reviewing the merits of an order written by a colleague. As counsel for the applicant put it, "I do not want to go before a co-ordinate judge in Brampton to review Hill J.'s decision."

[29] In my view, the overarching problem with this hierarchy argument is that it finds no support in -- indeed it is contrary to -- the wording of s. 520. Section 520 clearly envisions more than one opportunity to bring a bail review application and contemplates that different judges of the superior court will sometimes hear these applications. The hearing will often be a blending of the original material and the material before the judge on any prior review and the order made by that judge with new material that has arisen subsequent to the initial hearing: see R. v. Saracino, 1989 7197 (ON SC), [1989] O.J. No. 28, 47 C.C.C. (3d) 185 (H.C.J.), at pp. 190-91 C.C.C., [page358] per Doherty J. In other words, s. 520 of the Code explicitly contemplates that, in reviewing an order made at a show cause hearing under s. 520, one superior court judge may consider the order made by another judge of the same court on a prior review application.

[30] As to the argument that one superior court judge should not review the decision of another, I agree with Huband J.A.'s rejection of this notion in Zeneli, at p. 480 C.C.C.:

Crown counsel submit that special circumstances exist because of an error of law on the part of Menzies J. in failing to provide reasons for his decision in spite of a statutory requirement to do so. It is argued that this distinguishes the present case from the usual situation where changed circumstances are alleged. It is further suggested that another judge of the Court of Queen's Bench might be reluctant to find judicial error. Further, if judicial error were to be found, allowing a fresh discretion to be exercised, a judge of the Court of Queen's Bench might be reluctant to come to a different conclusion than his or her colleague on the Court of Queen's Bench.

In my opinion, the fact that the intended review is based initially on an alleged error of law does not, by itself, qualify as a special circumstance justifying a judge of this court to entertain a review. In my opinion, judges of the Court of Queen's Bench will fulfil their responsibilities by finding judicial error if error indeed exists and by exercising an independent discretion if the circumstances call for an independent discretion. See, also, Semenick, at para. 14, and R. v. Cook, 1986 4623 (ON CA), [1986] O.J. No. 73, 26 C.C.C. (3d) 188 (C.A.), at p. 192 C.C.C. (Dubin J.A in Chambers).

[31] Moreover, I note that s. 520 is not the only provision of the Code assigning jurisdiction to coordinate members of the same court in the bail domain; s. 680 of the Code establishes a similar mechanism for courts of appeal with respect to bail orders pending appeal.

[32] I make one final observation. In my view, there are strong policy and practical reasons for adopting the "special circumstance" overlay to the concurrent jurisdiction set out in s. 520 of the Code. First, if evidence is to be heard at the bail review, the Superior Court is better positioned to hear the review; it has the facilities, staff and mechanisms to respond to this necessity: see Petrie, Semenick and R. v. Ranger, 2003 15438 (ON CA), [2003] O.J. No. 5126, 180 O.A.C. 138 (C.A.) (Feldman J.A. in Chambers).

[33] Second, there are many other provisions in the Criminal Code that confer concurrent jurisdiction on a court of appeal as a "superior court of criminal jurisdiction", but an appellate court would rarely, if ever, exercise those powers for practical and policy reasons: see, for example, ss. 184.2, 184.3, 185, 186, 187, 188 and 196 (wiretaps); s. 258 (release of blood samples for testing); ss. 468 [page359] and 470 (trying indictable offences); s. 488.1 (examination of seized solicitor-client privileged documents; s. 490 (retention orders in relation to items seized); s. 490.2 (forfeiture of offence related property); and s. 699 (insurance of out-of- province subpoena).

[34] I conclude that, absent special circumstances, courts of appeal should deal with bail pending appeal and superior courts should deal with bail prior to and during a trial. The applicant has not established special circumstances to justify the intervention of this court in his case.

E. Disposition

[35] The application is dismissed.

Application dismissed.

Notes

Note 1: Even if the applicant had been arraigned and entered a plea of not guilty, as is sometimes the practice as lenghty pre-trial motions begin, my conclusion would be the same, since the procedure would have to be repeated in the presence of the panel as jury selection began. Only after jury selection had bee completed would the applicant have been given in charge of the jury and the trial begun.