COURT OF APPEAL FOR ONTARIO
Gillese J.A. (Motions Judge)
BETWEEN
His Majesty the King
Applicant
and
S.H.
Respondent
Erica Whitford, for the applicant
Michael A. Moon, for the respondent
Heard: February 10, 2025
ENDORSEMENT
1The respondent was convicted of historical sexual offences involving two complainants who were children at the time of the offences. He was sentenced to a global sentence of seven years’ imprisonment. He filed an inmate notice of appeal against conviction and sentence and argued his appeal at the Kingston inmate appeal sittings on October 10, 2024. This court allowed his conviction appeal and ordered a new trial on all counts.
2On October 28, 2024, a single judge of this court made a release order under s. 679(5) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Release Order”). The Owen Sound Crown’s office is re-prosecuting the respondent on the offences for which he received a new trial.
3The Crown applies for an order revoking the Release Order and for a warrant of arrest and committal (the “Application”). As a result of the facial breach of the condition prohibiting him from being in the company of any persons under the age of 16 years, he was arrested for a s. 145(5) offence and is detained pending a show cause hearing.
4The respondent opposes the Application on the basis that the Release Order is a nullity. He points out that a release order made under s. 679(5) governs release pending appeal whereas he was released after the court allowed his appeal and ordered a new trial. Consequently, the respondent submits, the only valid form of release upon which he could have entered into bail was an order under s. 679(7.1), which governs those seeking release pending trial after a successful appeal. The respondent relies on the decision of Feldman J.A. in R. v. Ranger (2003), 2003 CanLII 15438 (ON CA), 180 O.A.C. 138 (C.A.), at para. 10 for his position. See also, R. v. D.C., 2019 ONCA 553, at para. 14 and R. v. Manasseri, 2017 ONCA 226, at paras. 40, 41 to the same effect. He further argues that since the Release Order was not lawful, it was void ab initio and, therefore, there is no lawful order upon which a revocation hearing can be based.
5I accept the respondent’s submission.
6Section 679(5) of the Criminal Code is clear that it only applies to an “appellant” who is released pending the hearing of their appeal. In this case, the respondent’s appeal is completed and a new trial was ordered. The only form of release applicable to the respondent in these circumstances would have to be issued under s. 679(7.1).
7Since the impugned Release Order’s issuance, the respondent appeared before the Owen Sound Superior Court of Justice where, presumably, the new trial will be held. According to para. 19 of Ranger, in the time period when the person first appears in the court where the new trial is to be held, up until the commencement of trial, the trial court and this court have concurrent jurisdiction over judicial interim release: see also, Manasseri, at paras. 40, 41; D.C., at para. 12.
8Despite having concurrent jurisdiction to hold a de novo bail hearing under s. 679(7.1), I decline to embark on that hearing. In my view, the Superior Court of Justice is better positioned to hear and decide such an application: D.C., at para. 17.
9Accordingly, the Application is dismissed and the matter of the respondent’s interim release is remitted to the Superior Court of Justice for a first instance Crown onus hearing for release under s. 679(7.1).
“E. E. Gillese J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.