R. v. Rosete, 2007 ONCA 590

CITATION: R. v. Rosete, 2007 ONCA 590

DATE: 20070831

DOCKET: C45371

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., DOHERTY and CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

and

ROMEO ROSETE

Respondent

and

CENTRE FOR ADDICTION AND MENTAL HEALTH (CAMH)

Respondent

Riun Shandler and Sean Hanley for the appellant

Marlys Edwardh, Delmar Doucette and Jessica Orkin for the respondent Rosete

Janice Blackburn for the respondent CAMH

HEARD: May 23, 2007

On appeal from the order of Justice Richard D. Schneider of the Ontario Court of Justice dated April 20, 2006.

DOHERTY J.A.:

I

[1] Appellate jurisdiction is entirely statutory: R. v. Meltzer (1989), 1989 68 (SCC), 49 C.C.C. (3d) 453 at 460 (S.C.C.). The Crown purports to appeal the order of Schneider J. of the Ontario Court of Justice, contending that his order is a “judgment” issued on the return of the writ of habeas corpus and is, therefore, appealable by the Crown pursuant to s. 784(5) of the Criminal Code, R.S.C. 1985, c. C-46. Counsel for the respondent, Rosete, and counsel for the Centre for Addiction and Mental Health (“CAMH”) support the Crown’s position.

[2] I cannot agree. The order of Schneider J. is not a judgment issued on the return of the writ of habeas corpus. There is no other statutory provision giving the Crown a right of appeal to this court from that order. I would quash the appeal.

II

[3] Rosete was charged with assaulting and threatening his wife. He appeared before Schneider J. on April 10, 2006. Counsel who spoke to the matter for Rosete indicated that Rosete had a history of mental disorder, but she did not believe his mental health was an issue in the proceedings on April 10. Counsel advised Schneider J. that a bail hearing would be necessary. Rosete’s matter was held down so that his Legal Aid status could be resolved.

[4] Rosete was brought back before Schneider J. later that day. He had retained counsel through Legal Aid. Rosete had also seen a doctor in the cells between his first and second appearance before Schneider J. on April 10. Rosete’s new counsel advised the court that the doctor recommended a thirty day mental health assessment pursuant to s. 672.11(a) of the Criminal Code.

[5] Rosete’s counsel asked that the order direct that the assessment be conducted forthwith. Schneider J. initially seemed hesitant to make that order observing that such assessments had been taking three weeks to a month, presumably because of a shortage of beds at CAMH. Rosete’s counsel replied: “Not if you do a habeas corpus right away.” Schneider J. then ordered:

[G]iven what the doctor has said, and what Mr. Hynes [counsel for the respondent] has indicated, I’ll order that Mr. Rosete be assessed by CAMH, or their designate, for a period of time not to exceed 30 days and that he be delivered not later than the 11th day of April [the next day]….

[6] When, as counsel had anticipated, Rosete was not transferred from the jail to CAMH on April 11, counsel brought a habeas corpus application in the Superior Court of Justice for Ontario claiming that Rosete was being unlawfully held in the Toronto Jail because he was subject to a judicial order directing that he be delivered to CAMH by April 11 for a thirty day assessment. Counsel sought the immediate release of the respondent.

[7] The application came on for hearing before Nordheimer J. on April 13, 2006. After hearing submissions from all counsel, during which Nordheimer J. expressed concern about the authorities’ failure to comply with the order of Schneider J., Nordheimer J. concluded that he should exercise his discretion under s. 775 of the Criminal Code and remit the matter to Schneider J. Nordheimer J. opined that the real question was not whether Rosete should be in or out of custody, but whether he should be detained in a secure hospital facility or in a jail. His endorsement reads:

Transferred to Justice Schneider in 102 court on Tuesday, April 18/06 pursuant to s. 775 of the Criminal Code.

[8] In keeping with the order of Nordheimer J., Rosete appeared before Schneider J. on April 18. The proceedings continued on April 19. Schneider J. did two things in the course of this hearing. First, based on medical testimony he heard on April 18, Schneider J. decided that Rosete was unfit to stand trial and made a treatment order under s. 672.58 of the Criminal Code. That order has not been appealed.[^1] Second, Schneider J. purported to address the merits of the habeas corpus application on the basis that the order of Nordheimer J. pursuant to s. 775 of the Criminal Code constituted a delegation of the Superior Court’s habeas corpus powers to him.

[9] Schneider J. interpreted the relevant provisions of the Criminal Code as requiring that the accused be delivered forthwith to a hospital when an assessment order was made. On his interpretation, the accused could not be held in jail pending the availability of a bed in a secure hospital. Schneider J. observed:

To my mind all accused should be delivered to hospital on a forthwith basis with no “stopovers” at a jail along the way.

[10] The order ultimately made by Schneider J. on April 19 reflected the two determinations he made. He directed that the respondent be delivered forthwith to CAMH pursuant to the terms of the treatment order and he made a declaration that the respondent was unlawfully detained in jail after April 11 while the subject of the assessment order he made on April 10 directing that the respondent be delivered to CAMH.

III

(a) The nature of a habeas corpus application

[11] Habeas corpus is a prerogative writ used by the superior court to inquire into the lawfulness of the applicant’s detention. Like all prerogative writs, habeas corpus is an expression of the superior court’s supervisory powers over other courts, tribunals and, in some cases, the executive. Courts other than superior courts do not have habeas corpus powers. The Superior Court of Justice for Ontario is a superior court. The Ontario Court of Justice is not a superior court.

[12] Habeas corpus applications have traditionally involved a two-stage process. At the first stage, the detained person seeks an order from the superior court directing that the writ of habeas corpus be issued commanding the jailer to bring the detained person before the superior court. At the second stage, conducted upon the return of the writ to the superior court with the detained person, the superior court inquires into the lawfulness of the detention: see Patrick Hartt, “Habeas Corpus and Certiorari in Criminal Cases” in Remedies: Special Lectures of the Law Society of Upper Canada 1961 (Toronto: Richard de Boo Ltd., 1961) 313 at 319-320; R. v. Olson (1989), 1989 120 (SCC), 47 C.C.C. (3d) 491 (S.C.C.). On the return of the writ, the court may, instead of determining the lawfulness of the detention, order the applicant’s detention continued and remit the matter to the inferior court to take such steps as the superior court believes will best further the ends of justice: Criminal Code, s. 775.

[13] The traditional two-stage habeas corpus process is seldom followed today. It is usually agreed that the application should proceed at a single hearing in which the writ is taken to have been issued and the detained person brought before the court for a determination of the application on its merits: see Brian J. Gover & Victor V. Ramraj, The Criminal Lawyers’ Guide to Extraordinary Remedies (Aurora, Ontario: Canada Law Book, 2000) at 100.

[14] The Criminal Proceeding Rules governing habeas corpus applications in the Superior Court of Justice for Ontario reflect the contemporary practice. They provide that an applicant may request that the issuing of the writ be dispensed with and that the two step process be collapsed into a single hearing: r. 43.05(2)(d). Rosete made that request in his application.

[15] In keeping with accepted practice and Rosete’s request, the proceedings before Nordheimer J. were treated as a hearing on the return of the writ of habeas corpus. Nordheimer J. was asked to determine the legality of Rosete’s continued detention; he made an order under s. 775 of the Criminal Code instead.

(b) Rights of appeal in habeas corpus applications

[16] For reasons that seem rooted in the technical limits on the use of the writ of error as a means of appeal, until relatively recently there was no right of appeal in habeas corpus applications brought in criminal proceedings. Neither a decision refusing to issue the writ nor the decision on the return of the writ could be appealed by either the applicant or the Crown: see Robert J. Sharpe, The Law of Habeas Corpus, 2d ed. (Oxford: Clarendon Press, 1989) at 201-202. The absence of any appeal and the importance of the liberty interest engaged on habeas corpus applications led to the practice of allowing an applicant to renew the habeas corpus application before a different superior court judge if the application was refused at first instance. The absence of any right of appeal and the practice of going from judge to judge with the same application were criticized: see Hartt, supra, at 318-319.

[17] In April 1965, Parliament amended the Criminal Code to create rights of appeal in habeas corpus matters and to discontinue the practice of going from judge to judge with the same application: An Act to Amend the Criminal Code (Habeas Corpus), S.C. 1964-65, c. 53, s. 1. The rights of appeal in the present Criminal Code are largely unchanged from those introduced in 1964 and are found in ss. 784(3)-(5).

Refusal of application, and appeal

(3) Where an application for a writ of habeas corpus ad subjiciendum is refused by a judge of a court having jurisdiction therein, no application may again be made on the same grounds, whether to the same or to another court or judge, unless fresh evidence is adduced, but an appeal from that refusal shall lie to the court of appeal, and where on the appeal the application is refused a further appeal shall lie to the Supreme Court of Canada, with leave of that Court.

Where writ granted

(4) Where a writ of habeas corpus ad subjiciendum is granted by any judge, no appeal therefrom shall lie at the instance of any party including the Attorney General of the province concerned or the Attorney General of Canada.

Appeal from judgment on return of writ

(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the Supreme Court of Canada, with the leave of that Court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.

[18] The rights of appeal reflect the historical two-step nature of the habeas corpus application. They also reflect Parliament’s determination that a person whose application is refused, either at the first or second stage of the process, should have a right of appeal.

[19] The rights of appeal at the first stage of the habeas corpus process are described in ss. 784(3)-(4). It is common ground that those appeal provisions have no application to the order that the Crown challenges in this proceeding.

[20] Appeals from orders made at the second stage of the habeas corpus process, that is, upon the return of the writ before the superior court, are governed by s. 784(5). That section gives the applicant and the Attorney General a right of appeal to the court of appeal from a judgment made on the return of the writ. The section also provides for a further appeal, with leave, to the Supreme Court of Canada.

[21] In directing that the matter be returned to Schneider J., Nordheimer J. declined to determine the legality of Rosete’s detention. His order was made under s. 775 of the Criminal Code. Even though the order of Nordheimer J. did not determine the substance of the application, it was a judgment made on the return of the writ and was appealable pursuant to s. 784(5) by either party.[^2]

[22] Crown counsel submits, however, with the support of counsel for Rosete and CAMH, that the order of Nordheimer J. effectively put Schneider J. in the shoes of a superior court judge so that his subsequent order was also an order made on the return of the writ of habeas corpus and was, therefore, appealable under s. 784(5).

(c) The effect of s. 775

[23] Section 775 provides:

Where proceedings to which this Part applies have been instituted before a judge or court having jurisdiction, by or in respect of a person who is in custody by reason that he is charged with or has been convicted of an offence, to have the legality of his imprisonment determined, the judge or court may, without determining the question, make an order for the further detention of that person and direct the judge, justice or provincial court judge under whose warrant he is in custody, or any other judge, justice or provincial court judge, to take any proceedings, hear such evidence or do any other thing that, in the opinion of the judge or court, will best further the ends of justice.

[24] Section 775 can be traced to Canada’s first Criminal Code, S.C. 1982, c. 29, s. 752. The wording of s. 775 is somewhat cumbersome. However, stripped to its essentials, the section permits the superior court justice who is being asked to determine the legality of the applicant’s detention to decline to do so and to order the further detention of the applicant. The superior court judge may then direct that the judge under whose order the applicant is in custody, or some other inferior court judge, hear evidence or take any other steps that the superior court justice decides “will best further the ends of justice”.

[25] The origins of s. 775 are not entirely clear: see Martin’s Criminal Code 1955 (Toronto: Cartwright & Sons Ltd., 1955) at 1014. It would appear that the section reflects the common law power of a superior court judge on a habeas corpus application to decline to order the discharge of the applicant even if the detention was illegal. For example, if the detention was rendered illegal by a procedural or jurisdictional failure that did not touch on the actual merits of the basis upon which the applicant was being detained, the superior court could remit the matter to the lower court for a proper determination on the merits of the applicant’s claim that he should be released from custody: see Re Ferreira v. R. (1981), 1981 327 (BC CA), 58 C.C.C. (2d) 147 at 153-154 (B.C.C.A.).

[26] The connection between the common law power and the statutory power presently contained in s. 775 was drawn by Magee J.A. in R. v. Frejd (1910), 1910 229 (ON CA), 18 C.C.C. 110 (Ont. C.A.) at 114. Referring to s. 1120 of the 1906 Criminal Code, R.S.C. 1906, c. 146, a predecessor section to s. 775, he observed:

The tendency of the legislation is to prevent the ends of justice being interfered with by reason of mistakes, and to ensure the substantial carrying out of the law; and, indeed, the furtherance of those ends is the express object of this section. [Emphasis added.]

[27] Nordheimer J. was correct when he observed that the dispute before him did not address the ultimate question of whether Rosete should be detained on the charges pending his trial, but instead challenged the legality of his detention in jail rather than in a secure hospital after April 11. On the material before Nordheimer J., which included an outline of the factual allegations underlying the charges against Rosete and a copy of his lengthy criminal record, there was a genuine issue as to whether Rosete should be released from custody even if his detention in jail beyond April 11 was illegal by virtue of the terms of the order of Schneider J. of April 10. Rosete’s entitlement to bail under s. 515 of the Criminal Code had not been addressed.

[28] Nordheimer J. recognized that both the immediate release of Rosete and the continued detention of Rosete in a jail in apparent contravention of a court order were not in the interests of the due administration of justice. He also implicitly recognized that on the material before him he could not make an accurate assessment of the merits of Rosete’s claim that he should be released immediately. Nordheimer J. decided that Rosete’s status pending resolution of the criminal charges brought against him could best be assessed by Schneider J. who was aware of the prior proceedings and could conduct a proper inquiry as to the merits of Rosete’s continued detention.

[29] The situation faced by Nordheimer J. was not unlike other situations where superior court justices have invoked s. 775 and remitted the matter to the lower court for further proceedings on the merits. For example, there have been cases where accused who did not receive the ninety day bail review hearing required by the Criminal Code brought a habeas corpus application. Rather than ordering the release of the accused on the basis that continued detention was unlawful, the superior court remitted the matter to the lower court where the bail hearing required by the Criminal Code could be held and the merits of continued detention determined: see Re Ferreira, supra; Ex Parte Gooden (1975), 1975 1374 (ON SC), 27 C.C.C. (2d) 161 (Ont. High Ct.). The lower court’s power to conduct the bail hearing and make the appropriate order came from the Criminal Code provision and not through the delegation of any power from the superior court justice. Further, any appeal from the bail order made by the lower court judge had to follow the appeal provisions referable to bail orders found in the Criminal Code.

[30] Section 775 has also been invoked where jurisdictional error led to the improper committal for trial of an accused at the conclusion of the preliminary inquiry. Instead of ordering the release of the applicant, the superior court remitted the matter to the lower court for the proper conduct and completion of the preliminary inquiry: see Re Demerais v. R. (1978), 1978 2480 (ON CA), 42 C.C.C. (2d) 287 (Ont. C.A.). The lower court’s powers to conduct the preliminary inquiry and make an order at the conclusion of that inquiry came from the relevant Criminal Code provisions and not by way of delegation from the superior court. Any challenge to the order made by the lower court at the end of a preliminary inquiry would have to be by way of prerogative writ and not by way of an appeal under s. 784(5).

[31] Nordheimer J. directed that Rosete be brought before Schneider J. In my view, in making that direction, Nordheimer J. put Rosete in a position where Schneider J. could address his detention by reference to the applicable provisions of the Criminal Code. Those provisions included the bail provision in s. 515 of the Criminal Code and the mental disorder provisions in Part XX.I of the Criminal Code.

[32] Schneider J. invoked his powers under Part XX.I of the Criminal Code. After hearing evidence that Rosete was unfit to stand trial, Schneider J. determined that he was unfit and made a treatment order under Part XX.I. This order effectively resolved the question of whether Rosete should be released from custody. Rosete’s right of appeal from that order was governed by the provisions of the Criminal Code referable to appeals from orders respecting fitness to stand trial: see Criminal Code, s. 675(3). In acting as he did under Part XX.I, Schneider J. was able to do what Nordheimer J. was not in a position to do – determine on the merits whether Rosete should be in custody and, if so, where he should be held.

[33] After resolving Rosete’s status, Schneider J. went on to interpret certain provisions of the Criminal Code referable to the assessment order he had made on April 10. Schneider J. characterized this part of his reasons as an exercise of the habeas corpus power that had been delegated to him by Nordheimer J. Section 775 does not provide for the delegation of the powers of a superior court to a lower court. The matter was remitted to Schneider J. so he could exercise his powers under the Criminal Code. As demonstrated above, those powers were ample to make a proper determination of Rosete’s status. With respect, Schneider J.’s characterization of his power as a delegation of a superior court power was wrong. That mischaracterization cannot create appellate jurisdiction.

[34] To the extent that Schneider J. purported to make a declaratory order as to Rosete’s status on April 11, it is open to the Crown to move to quash that order as having been made without jurisdiction.[^3] It is unclear to me what practical purpose would be served by such an application. I would think that Schneider J.’s interpretation of the Criminal Code provisions referable to assessment orders is best viewed as obiter dicta worthy of careful consideration by those who may subsequently be called upon to interpret those provisions.

IV

[35] There is no jurisdiction to hear this appeal. I would quash the appeal.

“Doherty J.A.”

“I agree. D. O’Connor A.C.J.O.”

“I agree. E. A. Cronk J.A.”

RELEASED: August 31, 2007 “DD”

[^1]: The treatment order made by Schneider J. arguably renders the issues raised on the habeas corpus application moot. Counsel for Rosete does not argue that the court should decline to hear the appeal from the order of Schneider J. on the basis that the issues are moot.

[^2]: In fact, Rosete brought an application for an extension of time within which to appeal the order of Nordheimer J. Armstrong J.A. by endorsement dated July 19, 2006 dismissed that application for reasons that are irrelevant to these reasons.

[^3]: In fact, the Crown did commence a certiorari proceeding seeking to quash the order of Schneider J. That proceeding is apparently still outstanding.