Court Information

Ontario Court of Justice

Date: December 22, 2016

Between:

Her Majesty the Queen

— AND —

Gary Judd

Before: Justice Nakatsuru

Heard on: September 22, October 24, 2016

Reasons for Judgment released on: December 22, 2016

Counsel

C. de Sa — counsel for the Public Prosecution Services of Canada

C. O'Connor — counsel for the Accused

NAKATSURU J.:

[1] Introduction

[1] On January 12, 2016, the accused, Mr. Judd, entered guilty pleas to possession of heroin for the purpose of trafficking and possession of oxycodone for the purpose of trafficking. He appeared before me in custody. There was a joint submission for a period of incarceration of two years less one day. As the sentencing hearing proceeded, it became apparent that Mr. Judd had a bail on these charges. It looked like he should not have been in custody. Inquiries had to be made. Mr. Judd was released on his own bail while the matter was investigated.

[2] Mr. Judd brought an application under the Canadian Charter of Rights and Freedoms. He alleged his right under s. 9 to be free from arbitrary detention was violated. He asked for a stay of proceedings as a remedy. I did not do so. Here are my written reasons explaining why.

A. History of the Proceedings

[3] On November 24, 2014, the police executed a search warrant at an apartment on Dawes Road in Toronto. Mr. Judd and a Ms. Hackett were found in the apartment with a quantity of heroin, oxycodone, and drug paraphernalia. There was a total of 38.54 grams of heroin and 104 oxycodone pills weighing 59.58 grams. They were both charged with possession of heroin for the purpose of trafficking, possession of heroin, possession of oxycodone for the purpose of trafficking, and possession of oxycodone. Mr. Judd was released on a surety release with a number of conditions on December 8, 2014. On March 13, 2015, Mr. Judd was taken back into custody after a surety relief. On July 24, 2015, Mr. Judd was released on his own recognizance with conditions. This was a bail program release.

[4] On September 11, 2015, Mr. Judd was arrested by the police. It was alleged that he was found in an apartment with Ms. Hackett with two fentanyl patches. He was charged with possession of fentanyl and breaches of three conditions of his release: to be under house arrest[1], to have no contact with Ms. Hackett except in the presence of counsel, and not to possess any drugs without a valid prescription.

[5] Mr. Judd first appeared in bail court on the new charges on September 12, 2015. The case was remanded to September 14. On that day, duty counsel on behalf of Mr. Judd asked that the case be remanded to September 18. The Crown stated that it was a reverse onus situation and that there was also a s. 524 application and they were asking him to show cause. Both sets of charges, the charges in the case at bar and the new charges were before the court. The justice of the peace remanded him to September 18. The information pertaining to the heroin and oxycodone was simply marked to be spoken to on that day. There was no indication on the information that a s. 524 application had been brought.

[6] On September 18, duty counsel spoke on behalf of Mr. Chris O'Connor who had been retained. Mr. O'Connor had left a message that he was awaiting disclosure on the new set of charges and asked that the matter be remanded to October 2 for a video remand. The case was remanded to Courtroom 114, the federal set date court, for that purpose. On October 2, by way of video remand, both sets of charges were further remanded to October 9 again by way of video remand. Duty counsel stated that Mr. O'Connor was going to do a Crown pretrial in the interim. On October 9, the case was remanded to October 28 into the federal plea court, Courtroom 117, to be spoken to.

[7] On October 28, Mr. O'Connor appeared before Brunet J., and asked that the case be remanded to November 5, Courtroom 114. Mr. O'Connor advised that Mr. Judd had just applied to Drug Treatment Court. He asked for the adjournment in order to receive an answer to his application.

[8] On November 5, an articling student for Mr. O'Connor attended and advised that Drug Treatment Court required further screening. He asked for November 10 in 114 Court. On November 10, Mr. O'Connor appeared and asked that the case be brought back on November 13 by way of video remand. On November 13, the case was again remanded to November 27 in Courtroom 114. On November 27, the case was again remanded to December 11 in Courtroom 114.

[9] On December 11, 2015, Mr. Judd again appeared by video remand. Duty counsel stated that his lawyer Mr. O'Connor asked for the matters to go to December 30 by video remand. At this time, the Crown requested that the new charges, the possession of fentanyl and the fails to comply with recognizance be stayed at the request of the Crown. They were stayed by the court. Nothing further was said on the record about this. The old charges were then remanded to December 30.

[10] On December 30th, Mr. Judd appeared. Duty counsel advised that his counsel left a message that the matter return January 12, 2016, by video remand. Mr. Judd asked for an earlier date. The matter was adjourned to January 4, by video remand. On that day, Mr. Judd was remanded to January 12 in federal plea court, Courtroom 117.

[11] On January 12, 2016, Mr. Judd appeared before me. He pled guilty to the two counts of possession for the purpose of trafficking. It was to be a joint submission for 2 years less a day. Mr. O'Connor stated that Mr. Judd had been in custody for a number of days awaiting his trial. Mr. O'Connor indicated that he would be asking for enhanced credit due to the conditions of Mr. Judd's incarceration at the Toronto South Detention Center. However, the defence wanted an adjournment so that records from the institution could be subpoenaed. As the issue of a notice of constitutional question was being discussed, the clerk of the court indicated that Mr. Judd had bail on these charges. Mr. O'Connor inquired why he was then being held in custody. The court clerk stated he did not know. The court officer stated that there were three fails to comply with recognizance. The clerk stated that Mr. Judd had a bail from July 24th and he could not see anything revoking it. Mr. O'Connor explained that Mr. Judd had been arrested again but those charges were withdrawn and he knew of nothing else before the courts. The clerk checked on the computer and confirmed there was a release in existence and there were no other outstanding matters. Some further discussion was had. The clerk indicated that even if the information noted that a s. 524 application was requested, it did not mean that it was granted. Usually the s. 524 was not granted until the bail hearing was actually commenced. If it was granted, the information usually noted this. There was also no detention order attached to the court documents. The court officer then checked and stated that there were no other holds on Mr. Judd. The case was adjourned to March 11 for sentencing. The matter was remanded a number of times until September 22, 2016, when this application was heard. It was adjourned to October 24, 2016, to obtain further transcripts. Mr. Judd has been on bail since the day he entered his pleas.

[12] Mr. Judd is a 47 year old man with a minor but related criminal record. He is single although he has three grown children. He has a high school education and previously worked for a cable company and temporary work agencies. He takes care of his 88 year old mother who suffers from Alzheimer disease. He has been a drug addict for a long time. However, he has been on a methadone program since his release. He has done well on bail.

B. The Positions of the Parties

[13] Mr. Judd submitted that he was arbitrarily detained in violation of his s. 9 Charter rights. On December 11, 2015, the charges relating to his possession of fentanyl and his fails to comply with his recognizance were stayed. He argued that he should have been released on his existing bail. Failure to do so was an egregious violation of his constitutional rights. As a result, Mr. Judd was in custody for about a month when he should have been free. It was submitted that this was an abuse of process that falls within the residual category in that it undermines the integrity of the judicial system. It was submitted that this was one of the clearest of cases where the remedy should be a stay of the charges.

[14] The Crown submitted that there was no s. 9 violation since Mr. Judd was properly detained under s. 524 of the Criminal Code. On September 14, the Crown had indicated that a s. 524 application was going to be brought. At that point, Mr. Judd's previous release was "encumbered" by the s. 524 application and he could no longer be released until the s. 524 application was decided. That hearing, it is argued, was never conducted since the defence kept adjourning the hearing. In the alternative, the Crown submitted that even if Mr. Judd was arbitrarily detained, the appropriate remedy was not a stay of proceedings but an appropriate reduction in his sentence.

[15] I should point out that a Notice of Constitutional Question was served on the Attorney General of Ontario and the Ministry of Community Safety and Correctional Services. No one appeared in response.

C. Analysis

[16] Any unlawful detention is an arbitrary detention and contrary to s. 9 of the Charter: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. In this case, I find that there was such an arbitrary detention.

[17] The Crown position that Mr. Judd's previous release was "encumbered" has no basis in law. Sections 524(1) and (2) provides that where there are reasonable and probable grounds to believe an accused has committed an indictable offence while on release or has or is about to contravene their release order, the accused can be lawfully detained pursuant to a warrant for their arrest or an arrest by a peace officer without a warrant. In this case, there was no arrest warrant issued pursuant to s. 524(1). Further, I find that Mr. Judd was never arrested by the police pursuant to s. 524(2).[2] Rather he was arrested by the police under their general powers of arrest without a warrant under s. 494(1) when they found him committing indictable offences. It is through the exercise of this power that Mr. Judd was lawfully detained and initially brought to bail court. The bail hearing was never commenced. A person's liberty can only be validly taken from them through the operation of the provisions of the Code. The argument that a verbal indication that the Crown is intending upon bringing a s. 524 application somehow "encumbers" a previous release, relies upon a fictional mechanism that does not exist in law. At its highest, it is a notice by the Crown that such an application will be brought. Such a notice does not lawfully deprive an individual of their liberty.

[18] A better argument which was ultimately made by the Crown is that Mr. Judd was notionally re-arrested under s. 524(2) by the police and thereby had his liberty lawfully taken away. The Crown argued that Mr. Judd could not again regain his freedom until the s. 524 application was heard and completed.

[19] I cannot accept this submission. In my opinion, an arrest warrant or a warrantless re-arrest under ss. 524(1) or (2) is not necessary for the purposes of establishing the jurisdiction of the court under s. 524. So long as the accused is validly before the court, a s. 524 application can be brought by the Crown: see R. v. Ramage (2011), 2011 ONSC 3092, 273 C.C.C. (3d) 331 (Ont. S.C.J.) at para 56; R. v. Parsons (1997), 124 C.C.C. (3d) 92 (Nfld. C.A.) at paras. 25-29; R. v. Lafond (1975), C.C.C. (2d) 568 (Que. Sess. Peace); cf. R. v. McBride (1996), 49 C.R. (4th) 294 (Ont. S.C.J.)

[20] In Parsons the Newfoundland Court of Appeal specifically noted the "artificiality" of requiring a re-arrest of the accused in order to engage s. 524. They held (at para. 30):

In this case, when Mr. Parsons was brought before the Provincial Court in respect of the drug and breach of recognizance charges, the Crown specifically asked that Mr. Parsons be detained in custody and the matter set over to enable an application to be made in this Court with respect to review of the antecedent judicial interim release. Having been legally arrested and detained and being before the court pursuant to such arrest, and having been informed, while he was in custody, that an application would be made to review the existing release order, it was not necessary to go through the technical formality of "re-arresting" the accused in order to invoke the review process before this Court.

[21] Parsons noted that the Ontario Court of Appeal in R. v. Yarema (1991), 64 C.C.C. (3d) 260 inferentially supported this proposition that so long as the accused was properly before the court it did not matter whether there was an arrest pursuant to s. 524. This requires further explanation. I recognize that it could be argued that the Ontario Court of Appeal in affirming the decision of Watt J. (as he was then) agreed with his proposition that an arrest with or without a warrant under ss. 524(1) or (2) was required as a condition precedent for a s. 524 application to proceed. However, closer analysis reveals differently. Krever J.A. qualified his support of Watt J.'s reasoning by clearly rejecting the proposition held by Watt J. that bail hearings under ss. 524 and 515 were mutually exclusive. Watt J. held that once actual new charges were laid, s. 524 could not be resorted to. Krever J.A. held that both hearings could be brought concurrently or separately at different points in time. For instance, it did not matter that an accused pled guilty and was sentenced for any new charges. This did not prevent the Crown from bringing a s. 524 application separately and at a later date.

[22] This was the conclusion reached by Fregeau J. in Ramage at para. 49 where he concluded that Yarema did not stand for the proposition that a warrant or a warrantless arrest under s. 524 was a precondition to a bail court's jurisdiction. Fregeau J. referred to the decisions involving bail pending appeals which held that so long as the appellant was properly before the court, the bail could be reviewed or revoked even though no warrant for his arrest had issued: see R. v. Dallaire, [2001] O.J. No. 140 (C.A.); R. v. Currie (1999), 123 O.A.C. 201. Fregeau J. held that where the accused has been lawfully arrested and detained and has received notice that the Crown seeks cancellation of his previous release, an arrest or re-arrest under ss. (1) or (2) of s. 524 was unnecessary. I find this reasoning compelling despite any authority to the contrary: see cf. McBride.

[23] I find this to be a sound and practicable interpretation of these Code provisions. It would be uncommon that police officers who find an accused who is on a form of release, committing an indictable offence, would ever turn their minds to the provisions of s. 524. The officers may well charge the individuals with a breach of a recognizance as they did in some of the authorities cited, but they do not specifically make an arrest under s. 524(2). Thus, the accused shows up in bail court with the new charges. In practice, it is at this point that the Crown in court decides whether a s. 524 application will or will not be brought. If it is the Crown's intention to do so, the information with the old charges and its form of release order is normally brought into court along with the new charges. There is no "re-arrest" done to ground the jurisdiction of the court. To require such a "re-arrest" is highly artificial. Nothing is gained by it. In my experience, it is never done.

[24] In my view, provided that an accused is properly before the court, there will be jurisdiction to bring a s. 524 application regardless of how the accused is brought to court. Indeed, a s. 524 application could be brought when the accused is out of custody. For example, such may be the case where the accused has already been released on his new charges or if his new charges have already been disposed of. Further, a successful s. 524 application does not always mean that the accused will be detained. That may not even be the intent of the Crown. The outcome may be that the old release is cancelled and the nature of the release or the conditions of release are varied. To require the accused to step into custody for a "re-arrest" in order ground jurisdiction in such circumstances is legally unnecessary, unduly complicated, and further burdens an already busy intake court.

[25] As a result, Mr. Judd had not been arrested under s. 524 when he was brought before the bail court on both sets of charges. He was in detention to show cause on his new charges. He had an outstanding release on his old charges. The Crown verbally indicated a s. 524 application was going to be brought. However, it never was. There was no show cause hearing. His existing release was never cancelled. When the Crown stayed the new charges on December 11, 2015, he should have been released from custody on his existing recognizance. He was not. Therefore, his right under s. 9 of the Charter was violated.

[26] In my view, any other conclusion would work an injustice. A realistic and contextual assessment of what happened on December 11, 2015, must take into account the fact that Mr. Judd appeared by way of video remand. He was in jail at the detention center. His lawyer was not present. It seems that Mr. Judd was surprised that the Crown was staying his new charges on that day. Duty counsel had very limited knowledge of the case and mere instructions from Mr. Judd's lawyer to remand him to December 30. Once that was completed, Mr. Judd who was in the detention center, walked out of the range of the video camera and back to his cell. No one gave any consideration to whether this was the legal thing to do.

[27] It seems apparent to me that the fact there was an outstanding release was simply missed. The issue of a potential s. 524 application by the Crown was never raised on the day the new charges were stayed. It was not raised on any subsequent appearance. Until the day Mr. Judd pled before me and the clerk of the court astutely noticed that Mr. Judd had an existing release order. Even then, the Crown (who was not Mr. de Sa) was unaware of the history of the case and that it was once indicated that the Crown was going bring a s. 524 application when Mr. Judd was initially charged with the new offences. I find once the new charges were stayed and disposed of, the Crown never again intended to bring such an application. Any assertion to the contrary is unsustainable.

[28] It would be a miscarriage of justice to legitimize Mr. Judd's wrongful detention based upon a technicality or the invocation of some artificial notional re-arrest or detention. Bluntly, when the charges were stayed, Mr. Judd should have been released.

Remedy

[29] There is then the question of remedy. Here I part company with Mr. Judd. I find that the appropriate remedy is not a stay of proceedings. The test for a stay is a stringent one. Here the issue is whether sentencing Mr. Judd would prejudice the integrity of the justice system and whether there is no alternative remedy capable of redressing this prejudice: see R. v. S.B., 2014 ONCA 527; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.

[30] In this case, I find that continuing with Mr. Judd's trial is not so offensive to notions of fair play and decency that proceeding would harm the integrity of the justice system. I find there was no malicious conduct or bad faith on the part of the Crown. The Ontario Court of Justice is a busy court especially at the intake end of the criminal process. Matters of bail and remands are dealt with routinely and often with dispatch. This can have unfortunate consequences. There are no dedicated federal prosecutors assigned to the cases at this early stage. Defence counsel who are busy running their practice, often in stressed financial circumstances, do not always have the time to make personal appearances on behalf of their clients. They may have a high volume of cases that make it difficult to keep fully apprised of the details of each client. While I am confident a situation like Mr. Judd's is very rare, I can see how it could come about in these circumstances. There is nothing to suggest that this is a systemic problem or anything other than what it is; an isolated case. Indeed, defence counsel must share some responsibility in this since he too seemed unaware of the outstanding release despite interceding court appearances.

[31] When I point this out, I do not in any way wish to minimize the negative impact upon Mr. Judd. To have served even one day in unlawful custody is terrible. Mr. Judd served over a month.

[32] All that being said, I find there is an alternative remedy under s. 24(1) of the Charter that can address the prejudice. This violation of his s. 9 right can be addressed in the crafting of the sentence: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. This case started off as a joint submission for two years less a day less pretrial custody. Mr. Judd has done some 288 days of pretrial custody all told. Even taking into account any enhanced credit for that pretrial custody, Mr. Judd would have served further time in jail had joint submission been acceded to. In my view, when one takes into account the s. 9 violation, the proper remedy should be that no further jail should be ordered. Mr. de Sa on behalf of the Crown very fairly conceded this. As a result, sentence is suspended with probation for thirty days on statutory terms.

Released: December 22, 2016

Signed: "Justice S. Nakatsuru"

Footnotes

[1] This was a condition of Mr. Judd's previous surety release but it was not a condition of his current bail.

[2] Indeed the police were of the view Mr. Judd was on his old December 8th surety release which did not exist.