Court of Appeal for Ontario

Citation: R. v. Baldasaro, 2008 ONCA 798

Date: 2008-11-27

Docket: M36815 C48735 C48736

Before: Simmons, Cronk and Watt JJ.A.

Between:

Her Majesty the Queen Respondent (Respondent in Inmate Appeal)

And

Reverend Brother Michael J. Baldasaro and Reverend Brother Walter A. Tucker Applicants (Appellants in Inmate Appeal)

Counsel:

Reverend Brother Michael J. Baldasaro in person Reverend Brother Walter A. Tucker in person Antoinette Issa for the respondent

Heard and released orally: November 14, 2008

On motion for a writ of habeas corpus.

Endorsement

[1] The applicants apply for habeas corpus in relation to their bail conditions and for an order requiring the respondent to pay the amount demanded from them in a Notice of Sale under mortgage relating to their house.

[2] The applicants were sentenced in April 2008 for trafficking in marijuana. In May and June 2008, they were granted bail pending appeal on terms that require that they refrain from using or possessing non-medically prescribed drugs, narcotics, and controlled drugs and substances; and that they refrain from residing at or attending the address from which they were trafficking. Subsequently, in September 2008 the terms of bail were varied to permit communication for one hour each day to prepare for their appeal.

[3] The applicants object to their bail terms for two reasons. First, they claim that they use marijuana as part of their religion and that the address they are restricted from attending is their church and home. They submit that the bail terms infringe their Charter right to freedom of religion. Second, they claim that the Crown undertook to consent to the bail pending appeal on the same terms as their bail pending trial.

[4] We have no jurisdiction to grant habeas corpus in relation to the applicants’ bail conditions.

[5] However, even if habeas corpus could afford a remedy, we would not grant it in this case. Any undertaking that may have been given by the Crown concerning the conditions of bail is not binding on a court granting bail. The applicants have availed themselves of the review process without success and their appeal is now scheduled for Monday, November 17, 2008. Moreover, having regard to the nature of the applicants' convictions, their bail conditions are appropriate. The merits of any claim concerning the constitutional invalidity of any legislation are more properly addressed on the appeal.

[6] Finally, we are not aware of any basis on which we could grant the relief requested concerning the notice of sale.

[7] The application is therefore dismissed.

"Janet Simmons J.A."

"E.A. Cronk J.A."

"David Watt J.A."