R. v. Vincent, 2008 ONCA 76

CITATION: R. v. Vincent, 2008 ONCA 76

DATE: 20080206

DOCKET: M35986 (C41694)

COURT OF APPEAL FOR ONTARIO

SHARPE J.A. (In Chambers)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

WAYNE VINCENT

Applicant

Riun Shandler for the respondent

John Norris for the applicant

Heard: January 29, 2008

ENDORSEMENT

[1] This is an application for judicial interim release pending the new trial ordered by this court on August 28, 2007: 2007 ONCA 546. The application is brought in this court pursuant to s. 679 (7.1). The respondent Crown moves for directions as to the appropriate forum, urging me to refer the application to the Superior Court of Justice.

FACTS

[2] The background facts may be simply stated. The applicant was convicted by a judge and jury of break, enter and commit sexual assault, forcible confinement and dangerous operation of a motor vehicle on October 4, 2001. The appellant has a criminal record that includes five convictions for robbery. Following a lengthy hearing, the appellant was designated a long-term offender and sentenced to ten years imprisonment to be followed by a ten year period of community supervision.

[3] This court allowed the applicant's conviction appeal, set aside the convictions and ordered a new trial on the ground that the trial judge erred by failing to follow the procedure prescribed by the Criminal Code for challenge for cause and jury selection. The respondent Crown has applied for leave to appeal to the Supreme Court of Canada.

[4] The appellant has now appeared on several occasions in the Superior Court of Justice pending his new trial but as the Crown's application for leave to appeal to the Supreme Court of Canada remains outstanding, no trial date has yet been set.

ISSUES

[5] Two issues arise on the Crown's motion for directions:

(1) Does the Superior Court of Justice have jurisdiction to entertain the application?

(2) If the answer to (1) is yes, should this application be transferred to the Superior Court of Justice?

ANALYSIS

(1) Does the Superior Court of Justice have jurisdiction to entertain the application?

[6] It is common ground that as a judge of this court, I have jurisdiction to entertain the application pursuant to s. 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.

[7] The jurisdiction conferred by this provision was considered by Fish J.A. R. v. Barbeau (1998), 1998 CanLII 12630 (QC CA), 131 C.C.C. (3d) 350 (Que. C.A. ) at 351-2

…I am satisfied that the principal (if not exclusive) purpose of s. 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.

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 manner 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.

[8] In R. v. Ranger 2003 CanLII 15438 (ON CA), [2003] O.J. No. 5126 (Ont. C.A.), Feldman J.A. held that s. 679(7.1) confers jurisdiction on this court to deal with judicial interim release in the period after the new trail is ordered but before the applicant appears in the Superior Court of Justice. She agreed with the conclusion in Barbeau that, a purposive interpretation of s. 679(7.1), based on the history of the provisions, leads to the conclusion that the section does not vest exclusive jurisdiction in the Court of Appeal but contemplates that once the applicant appears in the Superior Court of Justice court having concurrent jurisdiction to entertain the application. As Feldman J.A. explained, the predecessor s. 679(7) deprived an applicant facing a new trial of the presumption of innocence for purposes of judicial interim release and had been declared unconstitutional: see R. v. Sutherland (1994), 1994 CanLII 4680 (SK CA), 90 C.C.C. (3d) 376 (Sask. C.A.) and R. v. Biddle (1995), 1995 CanLII 1428 (ON CA), 82 O.A.C. 107. Section 679(7.1) codified the practice of applying the test set out in ss. 515 and 522 where a person was ordered to be retried and, by providing that a judge of the appellate court could exercise ss. 515 and 522 powers, also plugged the gap in time between the appeal court judgment and the applicant's appearance in the trial court. Feldman J. A. further explained, at paras. 20-1:

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).

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.

[9] On behalf of the applicant, Mr. Norris submits that Barbeau and Ranger are both distinguishable on the ground that both cases involved charges of murder, an offence listed in s. 469. By virtue of s. 522, only the Superior Court of Justice may grant judicial interim release pending trial for an offence listed in s. 469. Jurisdiction to grant judicial interim release in all other offences is conferred on a justice by s. 515. As the applicant, is not charged with an offence that is listed in s. 469, Mr. Norris submits that the Superior Court of Justice has no jurisdiction to deal with this application and that Barbeau and Ranger have no application.

[10] I am unable to accept this submission for the following reasons. I take the language of s. 679(7.1) as the starting point. It provides that where a new trial is ordered, "…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…" As held in Barbeau and Ranger, s. 679(7.1) falls short of removing the jurisdiction conferred by s. 522 on the Superior Court. As ss. 522 and 515 are dealt with in identical language, it must follow that s. 679(7.1) does not remove the jurisdiction conferred by s. 515.

[11] Accordingly, on a literal interpretation of the relevant provisions, it seems to me that if a superior court judge has jurisdiction to entertain an application for judicial interim release pending a new trial on a s. 469 offence, a justice must also have jurisdiction to entertain an application for judicial interim release after a new trial has been ordered on all other offences.

[12] I am not persuaded that the jurisdiction of a justice, so conferred, is exclusive or that a member of the Superior Court of Justice has no jurisdiction. By virtue of the Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 5, every judge of the Superior Court of Justice and is "by virtue of his or her office a justice of the peace". In Re Graham and the Queen, (1986) 1986 CanLII 4643 (ON SC), 30 C.C.C. (3d) 176, (S.C.O.), Osborne J. held that District Court Judge had jurisdiction to deal with a similar application under either the residual jurisdiction of a judge of the trial court "or as an ex officio justice of the peace".

[13] In my view, the ex officio status of Justice of the Superior Court clothes him or her with the legal authority to act under ss. 679(7.1) and s. 515. While there are many reasons the Superior Court would not exercise the jurisdiction of a justice in the ordinary case, from a pragmatic and purposive perspective, is every reason for the Superior Court to assume this jurisdiction in the context of an applicant who has appeared in that court pending a new trial ordered by this court. The effect of the appeal court's order for a new trial is to remit the matter directly to the trial court and the proceedings recommence at a point well beyond the appearance of an accused in the initial stages as contemplated by s. 515 and at a point when it is desirable for the trial court to maintain control over all aspects of the proceeding.

[14] I note as well that members of the Superior Court of Justice are also appointed as ad hoc members of the Court of Appeal and therefore, if required, could exercise the concurrent jurisdiction conferred on this court by s. 679(7.1).

[15] I conclude, accordingly, that the Superior Court of Justice has jurisdiction to entertain the application.

(2) Should this application be transferred to the Superior Court of Justice?

[16] In my view, this application should be transferred to the Superior Court of Justice. Some applications for judicial interim release pending a new trial may be readily dealt with by a judge of this court. As Feldman J.A. noted in Ranger, it is often the case that these applications are not contentious. Where, for example, the applicant has been released on bail pending the appeal, the Crown may not resist what amounts to an extension the bail pending a new trial. In other cases, familiarity with the record may put a member of this court who heard the appeal in an advantageous position to deal expeditiously and efficiently with the application for bail pending the new trial.

[17] This case, however, does not fall into that category. The applicant has not been on bail pending his appeal and the Crown strongly resists his release pending the new trial. The Crown wishes to examine and cross-examine witnesses on the application and has demonstrated to my satisfaction a reasonable basis for conducting those examinations viva voce before the judge hearing the application. Viva voce examinations are possible in this court, but they are much more readily accommodated in the Superior Court of Justice. This application is likely to take at least one day to hear, at time significantly longer than the norm for chambers applications in this court and more readily accommodated in the Superior Court. The appeal was decided on one narrow ground that did not require us to become fully immersed in the record of the long-term offender proceedings, a record that could be pertinent to the application for release pending the new trial. Finally, the question of release is linked at least to some degree to the timing and scheduling of the new trial, and it is preferable for the Superior Court to have control over the entire matter.

CONCLUSION

[18] Accordingly, I conclude that this application for judicial interim release pending the new trial should be transferred to the Superior Court of Justice.