Court of Appeal for Ontario

Date: 2018-03-26 Docket: M48929 Motion Judge: Brown J.A.

Between

Her Majesty the Queen Respondent (Respondent)

and

Daniel George Appellant (Applicant)

Counsel

Anita Nathan, for the appellant

Stephen Oakey, for the respondent

Heard: March 21, 2018

Endorsement

I. Overview

[1] The applicant, Daniel George, applies under s. 520 of the Criminal Code to review the terms of his judicial interim release before trial granted by a judge of the Superior Court of Justice on October 20, 2017.

[2] Section 520(1) of the Criminal Code provides:

If a justice … makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.

[3] There is concurrent jurisdiction in the Superior Court of Justice and this court to conduct a bail review under s. 520: R. v. Durrani, 2008 ONCA 856, 94 O.R. (3d) 359 (In Chambers), at para. 16. This results from the definitions of "superior court of criminal jurisdiction" and "judge" in ss. 2 and 493 of the Criminal Code including both judges of the Superior Court of Justice of Ontario and the Ontario Court of Appeal. See also Gary T. Trotter, The Law of Bail in Canada, loose-leaf (2017-Rel. 2), 3d ed. (Toronto: Carswell, 2010), at p. 8-3.

[4] Notwithstanding that concurrent jurisdiction, "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": Durrani, at para. 34.

[5] The applicant has not demonstrated special circumstances. I therefore dismiss his application.

II. History of the Proceeding

[6] On March 26, 2017 the applicant (and his co-accused) were charged with three counts of possession of a controlled substance – cocaine (254.66 gm), crack cocaine (21.18 gm), and heroin (3.35 gm) – for the purposes of trafficking contrary to s. 5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[7] On July 20, 2017 the applicant applied for bail before Justice of the Peace Wong. Because the applicant was charged with drug trafficking, the presumption in favour of pre-trial release did not apply and he bore the burden of justifying his release: Criminal Code, s. 515(6)(d).

[8] The Justice of the Peace detained the applicant. She ruled the strength of the Crown's case and the applicant's record raised substantial secondary ground concerns that if released on bail, the applicant would most likely return to the drug trade. Justice of the Peace Wong concluded that the proposed plan of release, including the surety proposed, was insufficient to address those concerns.

[9] On August 17, 2017 the applicant brought a bail review application before Justice B. O'Marra of the Superior Court of Justice. O'Marra J. dismissed the application. The applicant did not dispute that any form of release would require a surety and terms. O'Marra J. found the criminal record of the surety, and the incremental disclosure of the true extent of his record, rendered the surety unqualified to act. He concluded the proposed plan of release did not address the secondary ground concerns and dismissed the application.

[10] On October 20, 2017 the applicant brought a further s. 520 application before Justice Clark of the Superior Court of Justice (the "Review Judge"). The applicant proposed a new plan of release, which included a form of house arrest. The Crown had consented to the plan, which involved two new sureties. The applicant proposed residing with one of the sureties.

[11] The Review Judge expressed several concerns about the plan, in particular that: (i) the employment of the surety with whom the applicant proposed to live would leave him on his own eight to twelve hours each working day; (ii) the applicant's history clearly showed he had been a drug dealer for some time; and (iii) he had breached probation and recognizance orders.

[12] The Review Judge, "with some reluctance", agreed to release the applicant. However, he added terms of release not contained in the proposed plan of release: (i) a bi-weekly reporting requirement; and (ii) prohibitions on possessing a cellphone and associating with any person with a criminal record unless a member of his immediate family.

[13] The jointly proposed plan of release would have required Mr. George to remain in his residence at all times, except: (i) while in the direct and continuous presence of a surety; (ii) while going directly to and from, and while at, work; (iii) while going directly to and from court; or (iv) during a medical emergency. However, the Review Judge refused to include a term that the applicant could travel to and from and remain at a place of work unaccompanied by a surety. That decision was based upon the state of the record before him. Nevertheless, the Review Judge indicated he would be open to reconsidering the issue with better evidence: "[The applicant] is going to have to get a job and come to this court for a bail review."

[14] In granting the applicant release from detention on terms, the Review Judge stated:

Mr. George, I am impressed by your sureties. They seem like decent hard-working upright people, and they are the only reason you are getting out of jail today. You have a dismal criminal record, and you appear to me to be nothing more than a drug dealer. And I would not let you out, but for the fact that you have good sureties, and because both sides are consenting here. Other than that, you can stay exactly where you are pending trial. I do not see the case against you as being all that weak. In fact, quite the opposite, I see it as being quite strong, but I am not the trial judge, so that is fine. It is with some misgiving that I am going to let you out, but listen to me now when I tell you, if there is one breach, any sort of breach, and there is not going to be any more bail. You are going to sit in jail until your trial. If that breach be discovered, and you be arrested, you will not be getting another bail.

III. The Present Application

[15] The applicant applies for a review of that order under s. 520 of the Criminal Code. He has filed evidence from himself and his sureties that certain terms of the house arrest are too onerous. He has also filed updated evidence about his employment prospects. A March 5, 2018 letter from a fitness centre confirms the applicant may continue his training there as a volunteer personal trainer. Upon completion of that training and certification, the fitness centre will offer the applicant full-time employment.

[16] The applicant asks this court to vary the terms of house arrest to accord largely with those jointly proposed before the Review Judge.[1]

[17] The respondent is prepared to consent to the substance of the variation order sought by the applicant should the applicant apply to the Superior Court of Justice under s. 520. However, the respondent submits this court should decline to exercise its jurisdiction under s. 520 because no special circumstances exist.

IV. Analysis

[18] The message in Durrani was simple and clear: courts of appeal should deal with bail pending appeal and superior courts should deal with bail prior to and during a trial. Any departure from that clear division of labour requires an applicant to demonstrate "special circumstances" that would justify an appellate court exercising its concurrent jurisdiction under s. 520 of the Criminal Code.

[19] As MacPherson J.A. stated in Durrani, at para. 22, "what constitutes special circumstances has been defined quite narrowly." He went on to describe examples of "special circumstances" found in the case-law: (i) 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; (ii) where no superior court judge is readily available; and (iii) where two superior court judges on two bail applications applied differing interpretations of s. 515 of the Criminal Code and the case law.

[20] None of those special circumstances exist in this case.

[21] Instead, the applicant asks this court to exercise its concurrent jurisdiction for other reasons. He argues the Review Judge committed four legal errors that merit correction by this court: (i) he rejected jointly proposed conditions of release; (ii) he failed to provide sufficient reasons for rejecting the jointly proposed release conditions; (iii) he failed to impose the least restrictive conditions necessary in all of the circumstances; and (iv) he imposed conditions unrelated to the secondary grounds of detention, which was the ground of concern raised.

[22] The applicant submits this court should exercise its jurisdiction in order to give direction on when a review judge may reject a joint submission. The applicant urges this court to apply the public interest test in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, regarding joint submissions on sentence to bail review hearings under s. 520. If that test is applied, the applicant contends the terms of release jointly proposed to the Review Judge ought to have been accepted.

[23] I am not persuaded by the applicant's submission.

[24] First, it is far from clear a need exists for this court to clarify when a review judge may depart from a jointly proposed release plan. The Supreme Court of Canada recently considered the issue. In R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, the court stated, at para. 68:

Of course, it often happens that the Crown and the accused negotiate a plan of release and present it on consent. Consent release is an efficient method of achieving the release of an accused, and the principles and guidelines outlined above do not apply strictly to consent release plans. Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject one. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release. [Emphasis added]

[25] Second, the applicant casts his argument in terms of seeking "a ruling from Ontario's highest court regarding joint submissions on the form and terms of release". The applicant's tone is one of requesting appellate intervention in respect of errors of law in order to give guidance to lower courts in this and other cases. However, there is no right of appeal to the Court of Appeal from a bail order made by a judge on the authority of ss. 520 or 521: R. v. Smith, 2003 SKCA 8, 227 Sask. R. 279, at para. 25; and Antic, at para. 18.

[26] I would also observe that on this s. 520 application I am sitting as a single judge of a superior court of criminal jurisdiction, which in Ontario means the Court of Appeal and the Superior Court of Justice. The applicant asks that I exercise a jurisdiction also possessed by judges of the Superior Court of Justice. In such circumstances, my decision has no binding effect on any other judge of a superior court of criminal jurisdiction in Ontario sitting on a similar application.

[27] Next, the fact that the intended review is based on alleged errors of law does not qualify, by itself, as a special circumstance justifying a judge of an appellate court to entertain a review application under s. 520. Judges of a provincial superior court can intervene on a s. 520 application "if the justice has erred in law": R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121. Further, in Durrani, at para. 30, this court agreed with the view expressed by the Manitoba Court of Appeal in R. v. Zeneli, 2003 MBCA 50, 173 Man. R. (2d) 175, at para. 9, that judges of the provincial superior court "will fulfill their responsibilities by finding judicial error if error indeed exists and by exercising an independent discretion if the circumstances call for an independent discretion."

[28] Finally, the evidence filed on behalf of the applicant does not disclose any special circumstance. It describes a quite ordinary circumstance – the applicant and his sureties find the conditions of release to be onerous; they would like them changed; and there is evidence about possible employment that was not available at the October 2017 review. The respondent is prepared to consent to the substance of the modified release terms the applicant proposes. A review under s. 520 before a judge of the Superior Court of Justice is the appropriate place to seek such a modification. No need exists for this court to exercise its concurrent jurisdiction.

V. Disposition

[29] For the reasons set out above, I dismiss the application, without prejudice to the applicant renewing it before a judge of the Superior Court of Justice.

"David Brown J.A."

[1] The difference concerns cell phone possession. The Review Judge had included a condition prohibiting the applicant from possessing any cell phone. The applicant seeks a variation that would permit him to possess one cell phone.