Regina v. Dosch [Indexed as: R. v. Dosch]

48 O.R. (3d) 481

[2000] O.J. No. 1669

No. M25694

Court of Appeal for Ontario

Charron J.A.

(In Chambers)

May 17, 2000

Criminal law -- Bail -- Revocation of bail -- Accused committing indictable offence while on bail pending appeal -- Crown applying to revoke bail order and for warrant of arrest -- Bail order in force at time of further offences superseded by later order by time of application for revocation -- Court retaining jurisdiction -- Crown's application for revocation and warrant of arrest granted -- Criminal Code, R.S.C. 1985, c. C-46, s. 525(5).

While released on bail pending appeal, the accused committed further offences, some of which were indictable. He was bound at the time by the terms of a recognizance entered into pursuant to an order of the Court of Appeal dated December 21, 1999. The Crown applied for an order under s. 525(5) of the Criminal Code revoking the accused's bail and issuing a warrant for his arrest. When the Crown's application was heard, the December 21, 1999 order was no longer in effect, having been superseded by a further release order dated January 17, 2000. Counsel for the accused took the position that the court could not issue a warrant for the arrest of the accused based on violations in contravention of an order that was no longer in effect.

Held, the application should be granted.

The fact that the recognizance had been superseded by a subsequent order did not deprive the court of its jurisdiction to issue a warrant for the arrest of the accused. There is no reason to interpret s. 525(5) of the Code so as to restrict its application to the time frame within which the recognizance whose terms have been breached is still in effect.

APPLICATION for an order under s. 525(5) of the Criminal Code, R.S.C. 1985, c. C-46 revoking bail and issuing a warrant for arrest of the accused.

R. v. Stoltz (1993), 1993 14694 (BC CA), 84 C.C.C. (3d) 422 (B.C.C.A.), not folld Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 525(5), (7), 679(6)

Randy Schwartz, for the Crown, applicant. Karen B. Unger, for respondent.

[1] CHARRON J.A. (in Chambers): -- This is an application by the Crown for an order under s. 525(5) of the Criminal Code, R.S.C. 1985, c. C-46 revoking Mr. Dosch's bail and issuing a warrant for his arrest. The application was heard and granted on April 6, 2000. In a brief endorsement, this court held that the Crown met the criteria under s. 525(5) and ordered that a warrant for the arrest of Mr. Dosch be issued.

[2] The parties at the hearing requested that this court deal further with the question of any future release, as if Mr. Dosch had been arrested and brought before the court under s. 525(7). On this question, this court held that Mr. Dosch failed to meet the onus on him under s. 525(7) to show why his detention is not justified. Consequently, his bail pending appeal was revoked without prejudice to his right to bring a fresh application for his release based on new evidence, if so advised.

[3] Counsel at the hearing raised a question on the interpretation of s. 525(5) and, consequently, I indicated that further reasons would follow on this matter. These are those reasons.

[4] Section 525(5) reads as follows:

525(5) Where a judge having jurisdiction in the province where an order under subsection (4) for the release of an accused has been made is satisfied that there are reasonable grounds to believe that the accused

(a) has contravened or is about to contravene the undertaking or recognizance upon which he has been released, or

(b) has, after his release from custody on his undertaking or recognizance, committed an indictable offence,

he may issue a warrant for the arrest of the accused.

Section 679(6) provides that s. 525(5) applies with such modifications as the circumstances require in respect of a person who has been released on bail pending appeal.

[5] The question for determination is whether this court, under s. 525(5), can issue a warrant for the arrest of an appellant on the basis of violations of an order other than that under which the appellant is currently released at the time.

[6] It is common ground between the parties that Mr. Dosch committed further offences (some of which are indictable) during the month of January 2000 at a time when he was bound by the terms of a recognizance entered into pursuant to an order of this court dated December 21, 1999. An issue arises because the December 21, 1999 order is no longer in effect since it was subsequently superseded by a further release order dated January 17, 2000.

[7] Counsel for Mr. Dosch takes the position that this court cannot issue a warrant for the arrest of her client based on violations in contravention of an order that is no longer in effect. Counsel relies on R. v. Stoltz (1993), 1993 14694 (BC CA), 84 C.C.C. (3d) 422 (B.C.C.A.) in support of this position. In Stoltz, the British Columbia Court of Appeal, in confirming an order made by Wood J.A. in Chambers, agreed with the following reasoning of the applications judge [at p. 425]:

From the material before me I am satisfied that there are reasonable grounds to believe that on or about the dates, times and places alleged in the three counts charging him with failing to comply with the conditions of his recognizance, the appellant violated those conditions and therefore violated the recognizance then in effect. The problem is that those recognizances are no longer alive. All have been vacated by orders subsequently made and replaced by recognizances subsequently entered into, and the power I have to issue a warrant under s. 525(5)(a) is predicated on there being reasonable grounds to believe that the appellant has violated, or is about to violate, the undertaking or recognizance on which he has been released.

(Emphasis in original)

[8] Crown counsel argues that Stoltz can be distinguished on its facts since Mr. Dosch never signed a fresh recognizance pursuant to the terms of the later order dated January 17, 2000 until after the Crown brought this application. Counsel therefore argues that, because Mr. Dosch was still bound by the terms of the order dated December 21, 1999 both at the time he breached its terms and at the time the Crown brought this application, the issue in Stoltz does not arise. Alternatively, Crown counsel urges this court not to follow the reasoning in Stoltz.

[9] Crown counsel is correct in stating that Mr. Dosch was still bound by the terms of the earlier order at the time this application was served on him. The release order dated January 17, 2000 provides that "the Release Order dated December 21, 1999 be varied upon entering into new recognizance . . .". Since this new recognizance was not entered into until after this application was brought, the December 21, 1999 order was still in effect both at the time Mr. Dosch breached its terms and at the time the Crown brought this application. However, I am not persuaded that Stoltz can be distinguished on these facts since, upon Mr. Dosch signing the fresh recognizance, the December 21, 1999 order was effectively superseded by the later order. Therefore, to borrow the language in Stoltz, the recognizance that was breached is "no longer alive".

[10] It is my view, however, that the fact that the recognizance has been superseded by a subsequent order does not deprive the court of its jurisdiction to issue a warrant for the arrest of the violator. I respectfully disagree with the reasoning of the British Columbia Court of Appeal and find that there is no reason to interpret s. 525(5) so as to restrict its application to the time frame within which the recognizance whose terms have been breached is still in effect. Mr. Dosch's appeal is still pending before this court and his release pending the hearing of his appeal is still subject to an order of this court. So long as the criteria under s. 525(5) are met, it is my view that this court can still issue a warrant for his arrest so as to bring him back before the court to show why his detention in custody is not justified pursuant to the provisions of s. 525(7).

[11] In order to establish the necessary grounds to obtain an arrest warrant, it is sufficient for the Crown to show under s. 525(5)(a) that Mr. Dosch has contravened the recognizance upon which he was under release at the time of the violations, or, under s. 525(5)(b), to show that he has committed an indictable offence after his release on his recognizance. This has clearly been established in this case. The fact that the recognizance in question may have been superseded by a later order may provide good reason in some cases for the court to refuse to exercise its discretion to issue a warrant for the arrest of the appellant, but, in my respectful view, it does not deprive the court of its power to do so in an appropriate case. In this case, there are no factors that militate against the court exercising its discretion.

[12] It is for these reasons that I granted the application.

Application granted.