DATE: 20031217
DOCKET: M30596/C31117
COURT OF APPEAL FOR ONTARIO
FELDMAN J.A. (In Chambers)
B E T W E E N:
HER MAJESTY THE QUEEN
Michael Bernstein and Andrew Pilla for the Crown
(Moving Party)
- and -
James Lockyer
for the Respondent
ROHAN RANGER
(Respondent)
HEARD: December 9, 2003
FELDMAN J.A.:
[1] The respondent has brought an application for judicial interim release pending his new trial on charges of murder and manslaughter, ordered by this court on September 12, 2003. The issue of the proper jurisdiction of this court under s. 679(7.1) of the Criminal Code, R.S.C. 1985, c. C-46, has arisen, and a motion was brought by the Crown seeking the direction of the court on the issue.
[2] The respondent was convicted after a trial by judge and jury of first-degree murder of Marsha Ottey and manslaughter of her sister, Tamara Ottey. The respondent’s cousin, Adrian Kinkead, was tried separately for the murders of the two sisters and was convicted of both. Both men appealed their convictions to this court. The appeals were heard together. On September 12, 2003, Mr. Kinkead’s appeals were dismissed, while the respondent’s appeals were allowed and a new trial was ordered.
[3] The respondent initiated proceedings in this court for judicial interim release. The proceedings began by a conference call among counsel for the respondent, counsel for the Crown and myself, held on November 12, 2003, to discuss the logistics of the proposed application. The Crown is opposing the release and counsel anticipated the need to cross-examine the respondent’s proposed witnesses on their affidavits to be filed in support of the application. The hearing was tentatively set for November 28, 2003.
[4] The application record was served and filed on November 14, 2003. On November 13, 2003, an order was issued by the Superior Court to the Superintendent of the Toronto Jail that the respondent be delivered to appear in court on November 19, 2003, at 9:00 a.m. on a charge of second-degree murder. On November 18, 2003, a new indictment for first-degree murder and manslaughter was issued. On November 19, the respondent appeared before Watt J. where the matter was put over until January 7, 2004, in order to await the outcome of the application for judicial interim release.
[5] The court had two further conference calls with counsel, one on November 21, and one on November 28, to again discuss the logistics of the proposed hearing, given the need to accommodate the calling and cross-examination of several witnesses including potential Crown witnesses. Two days in early December were set for the hearing. At the same time, I raised with counsel the issue of the jurisdiction of this court in consideration of the case of R. v. Barbeau (1998), 1998 12630 (QC CA), 131 C.C.C. (3d) 350 (Que. C.A.).
[6] As a result, the Crown brought a motion for the direction of the court as to the appropriate forum for the application in the circumstances. The motion was heard in court with the respondent present. A publication ban was ordered under s. 517 of the Code. The Crown takes the position that this court does not have jurisdiction to hear the application, or alternatively, that if it does have jurisdiction, there is concurrent jurisdiction in the Superior Court and the matter should be heard in that court.
[7] In Barbeau, the Quebec Court of Appeal allowed the appellant’s appeal, setting aside his conviction for first-degree murder and ordering a new trial. He brought an application for judicial interim release to a judge of the Court of Appeal under s. 679(7.1) of the Criminal Code which provides:
679(7.1) Where, with respect to any person, the court of appeal or the Supreme Court of Canada orders a new trial, section 515 or 522, as the case may be, applies to the release or detention of that person pending the new trial or new hearing as though that person were charged with the offence for the first time, except that the powers of a justice under section 515 or of a judge under section 522 are exercised by a judge of the court of appeal.
[8] By the return of the application, the appellant had appeared in the Superior Court and a date had been set for the commencement of his new trial. Fish J.A. (as he then was) raised the issue of his jurisdiction to determine the issue of judicial interim release under s. 679(7.1), once an accused had appeared in the Superior Court following the retrial order of the Court of Appeal. He held, at paras. 5 and 6, that:
[T]he principal (if not exclusive) purpose of subs. 679(7.1) of the Criminal Code is to bridge a temporal gap and not to vest in appellate judges an original jurisdiction normally exercised by trial judges who have jurisdiction over the offence charged, over the subject-matter of the application and over the parties to it.
From the time a new trial is ordered until the successful appellant has appeared in the Court where that new trial is to be had, an application for release must be made, pursuant to s. 679(7.1), before a single judge of the Court of Appeal. No other court or judge has jurisdiction over the successful appellant during that interval. But once the appellant appears in the court before which the new trial is to be had, his or her status is that of an accused awaiting trial. As a matter both of statute and of principle, I see no reason for the appeal court nonetheless to continue to exercise original jurisdiction over that person’s release.
He went on to conclude, at para. 7, that:
It is unnecessary to decide in this case whether the jurisdiction of the Superior Court is exclusive (as I am inclined to believe), or concurrent. On either view, I would defer consideration of this application to that Court: Even if its jurisdiction were found to be concurrent, this is clearly a [matter] that is more appropriately dealt with by a trial court, counsel having advised that witnesses are likely to be called in opposition to the application, and perhaps in support of it as well.
ANALYSIS
[9] It appears there are two time periods following an order by the court of appeal for a new trial with respect to which the jurisdiction over judicial interim release must be determined: (1) between the order of the court of appeal and the person’s first appearance in the trial court in the proceedings for a new trial; and (2) between the first appearance and the commencement of the new trial.
- The First Period
[10] I agree with Fish J.A. that during the first period between the court of appeal’s order for a new trial and the person’s first appearance in the court where the new trial is to be held, an application for judicial interim release can only be brought before a judge of the court of appeal in accordance with s. 679(7.1) of the Code. During that period, there is no other court that has jurisdiction over the person. That period can be short or long, depending on the circumstances of each case and on the speed with which the Crown moves to proceed with the new trial.
[11] As an example, where the court of appeal has set aside a conviction, the Crown must determine whether it will seek leave to appeal to the Supreme Court of Canada. During that time, and the time it takes to make a leave application, unless the Crown has brought the person before the trial court to explain the status of the person, the person will remain solely under the jurisdiction of the court of appeal for interim release purposes. In addition, in every case the Crown will have to determine whether it intends to proceed with the new trial. In some cases, witnesses may no longer be available or evidence that the Crown relied on at the first trial may have been ruled inadmissible so that the Crown may elect not to proceed with a further trial. In that case, the person may not be brought before a trial court until there has been a decision by the Crown whether to proceed.
- The Second Period
[12] The second period runs from the time the person first appears in the court where the new trial is to be held up until the commencement of the trial.
[13] Under s. 679(7.1), jurisdiction over judicial interim release is vested in the court of appeal “pending the new trial”. The central issue of interpretation concerns whether those words mean “pending the commencement of the new trial” or “pending the commencement of the process that results in the new trial”.
[14] In concluding that it is the trial court that has jurisdiction over judicial interim release during this period, Fish J.A. employed a purposive analysis to interpret s. 679(7.1). Section 679(7.1) came into force on June 16, 1997. Under the predecessor s. 679(7), persons for whom a new trial had been ordered were treated, for bail purposes, as an appellant and not as a person presumed innocent and facing trial for the first time. That section had been declared and treated as unconstitutional by a number of appellate courts: see, for example, R. v. Sutherland (1994), 1994 4680 (SK CA), 90 C.C.C. (3d) 376 (Sask. C.A.) and R. v. Biddle (1995), 1995 1428 (ON CA), 82 O.A.C. 107. The new subsection (7.1) codified the practice of applying ss. 515 and 522 where a person was ordered to be retried, but also stated that the judicial powers under those sections were to be exercised by a judge of the court of appeal. Besides codifying what had become the current practice, that the person was to be treated as if he or she was charged for the first time, Fish J.A. concluded that the principle purpose of the amendment was to vest jurisdiction in the court of appeal during the time gap before the person is brought into the trial system where he or she would be treated as any accused.
[15] The Supreme Court of Canada has adopted (see e.g., Bell ExpressVu Ltd. v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26) as its preferred approach to statutory interpretation, Elmer Driedger’s “modern principle”:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Elmer A. Driedger, The Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87.
[16] Applying this approach requires the court to determine the meaning of the words used in the section in their context. It is only if an ambiguity arises that further principles of statutory interpretation, such as the principle of strict construction of penal statutes, are applied. See Bell ExpressVu, para. 28.
[17] Applying the modern principle to s. 679(7.1), when one examines the meaning of the words “pending the new trial”, without adding any other words to interpret it, the clear meaning is pending the actual trial and not any time before the commencement of the trial.
[18] This meaning does not denigrate from the purpose of adding s. 679(7.1), but rather it gives the court of appeal a more expansive jurisdiction to cover the entire period up to the commencement of the trial for any circumstances that may arise. I am satisfied that the unambiguous wording of the section vests the court of appeal with jurisdiction to grant bail after a person has appeared in the trial court but before the new trial has commenced.
[19] The next issue is whether the trial courts have concurrent jurisdiction with the court of appeal during the second time period. It has been argued that under the wording of the subsection, the court of appeal jurisdiction is exclusive.[^1] However, I am satisfied that during the second period, the trial court and the court of appeal have concurrent jurisdiction over judicial interim release. I believe it is fair to say that both counsel on this motion agreed with that proposition.
[20] Very clear language would be required in order to oust the jurisdiction of the trial court before which an accused appears who is charged with an offence. Both ss. 515 and 522 place mandatory obligations on a trial judge before whom an accused appears charged with an offence. Section 515 of the Code provides that, where an accused is brought before a justice, the justice is obliged to deal with the matter of release either by releasing the accused with or without conditions, or if the prosecutor shows cause, by detaining the person in custody. Section 522 is similarly mandatory on a judge of a Superior Court before whom a person appears charged with an offence under s. 469 of the Code. The judge is obliged to detain the person in custody unless the person shows cause why his or her detention is not justified under s. 515(10).
[21] In my view although the language of s. 679(7.1) vests jurisdiction in the court of appeal, it does not by its wording vest exclusive jurisdiction, or oust the jurisdiction of other courts that already have that jurisdiction. The exclusive jurisdiction in the first time period comes not from the presence of language of exclusivity, but as Fish J.A. stated, from the fact that it fills a gap where no other court had jurisdiction.
[22] There are a number of reasons why it makes sense for the trial court to retain jurisdiction to grant bail in a new trial situation.[^2] First, geographically, the person as well as the sureties and the person’s lawyer may not be located near the city where the court of appeal sits, so that it may be much more practical for the matter to be heard and determined in the trial court. Second, where as in this case, the request for bail is contested, the hearing may require a large number of witnesses from both sides and cross-examination of those witnesses. The court of appeal is not set up administratively for that type of viva voce proceeding. Although it is possible for the court of appeal to make arrangements to accommodate a viva voce hearing, and it has recently done so in a matter that took one day,[^3] where the case will be heard over several days, it will be more difficult and cumbersome to proceed before a judge of the court of appeal. Third, as Professor Trotter points out, the normal bail review process when bail has been granted or denied under s. 515 is less cumbersome than the bifurcated procedure in s. 680 that applies to reviews of a s. 679(7.1) and s. 522 order, requiring leave from the Chief Justice.[^4]
[23] On the other hand, in some cases it can be advantageous to have the matter of bail able to be determined by a judge of the court of appeal. Certainly, there is merit in maintaining the flexibility within the judicial system to accommodate the bail process in the most expeditious manner when a new trial has been ordered. For example, the practice in the court of appeal is for the application to proceed by way of affidavit without the necessity of an appearance by the accused. As well, consent variations to bail can be done in writing without counsel attending. That could be done on the eve of the new trial without the necessity of a court appearance by the accused and the lawyers. There are also cases where the bail application and hearing can be expedited as a result of the familiarity of the judge who heard the appeal with the circumstances and record of the case. Nevertheless, a trial court can be well informed by reading the reasons of the court of appeal and any portions of the record that counsel believe are appropriate and necessary.
APPLICATION TO THIS CASE
[24] While it is not clear from the record whether the application for judicial interim release in this case was commenced during the first period, before the applicant first appeared (and before proceedings were commenced to have him brought before the trial court to set a date for his new trial), that appears to be the case. It is clear, however, that the application for judicial interim release was made returnable on November 28, 2003, a date after the applicant had appeared before Watt J. on November 19, 2003, when the matter was put over until January 7, 2004. Certainly, this motion was heard after the applicant had appeared before Watt J.
[25] In those circumstances, I am satisfied that this is a case where both this court and the Superior Court in Toronto have jurisdiction to hear and determine the respondent’s application for bail pending his new trial.
[26] Mr. Lockyer had first proposed bringing the application before a member of the panel that heard the respondent’s appeal and ordered the new trial, on the basis that those members of the court would know the record and therefore be cognizant of all the circumstances of the case, obviating the need for a lot of the evidence the Crown may otherwise seek to lead. He also brought the application before he knew the extent of cross-examinations and Crown witnesses that the Crown intended to present at the hearing.
[27] The Crown has now made it clear that the hearing will be lengthy. There was also a discussion of conducting some of the cross-examinations in the special examiners’ office and bringing transcripts to the hearing, in order to shorten the viva voce proceedings. However, by the time of the motion, the desirability of proceeding in that manner was questioned. In his usual fair way, Mr. Lockyer submitted that he was content, if the court considered it more appropriate, that the application be heard in the Superior Court.
[28] Normally it will be up to an accused person to choose the court in which to bring the application where there is concurrent jurisdiction; however, where this court considers that, in the circumstances, it is more appropriate that the matter be heard in the trial court, it can decline to hear the application.
[29] I am of the view that this is a circumstance where the bail application can be more effectively heard in the Superior Court, which is set up to hold viva voce hearings, and where a lengthy viva voce hearing can be more easily accommodated.
Signed: “K. Feldman J.A.”
RELEASED: December 17, 2003
[^1]: Professor Trotter suggests that although the section vests exclusive jurisdiction in the court of appeal, the legislation should be amended to vest jurisdiction in the trial court. The Law of Bail in Canada, 2d ed. (Toronto: Carswell, 1999) at 402 – 407. [^2]: See Trotter, supra, at 406. [^3]: See R. v. Dhillon, [2002] O.J. No. 3451 (Ont. C.A.) [^4]: See Trotter, supra, at 406.