Court of Appeal for Ontario

Date: April 13, 2017 Docket: C63443 Judges: Watt, van Rensburg and Pardu JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Deanna Passera Appellant

Counsel

Marianne Salih and Carlos F. Rippell, for the appellant

John North, for the respondent

Hearing

Heard: March 31, 2017

On appeal from: The decision of Justice Irving W. André of the Superior Court of Justice on February 21, 2017 denying the appellant's application for a writ of habeas corpus.

Decision

By the Court:

[1] The appellant was arrested on a charge of importing cocaine on August 24, 2014. As a person charged with an offence under s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), s. 515(6)(d) required that she be detained in custody unless she showed cause why her detention was not justified.

[2] A jury found the appellant guilty as charged. The trial judge entered a conviction. Counsel made submissions on sentence.

[3] On the date originally fixed for sentencing, the appellant filed a Notice of Constitutional Question. As originally framed, the notice challenged the constitutional integrity of s. 719(3.1) of the Criminal Code, a provision which caps credit for time spent in pre-disposition custody at a rate of 1.5:1. The appellant later expanded her challenge to take in s. 719(1), which prescribes the commencement date of a sentence as the date of its imposition, absent a relevant enactment that provides otherwise.

The Release Application

[4] Prior to the date fixed for the hearing of the constitutional challenge, the appellant filed her first application for judicial interim release. About 26 months after her arrest, the appellant invoked s. 523(2)(a) of the Criminal Code to ask the trial judge to vacate the detention order and permit her release until the trial was completed by the imposition of sentence. The application was grounded on an alleged change in circumstances.

[5] The trial judge dismissed the application on the basis that the appellant had failed to show cause why her detention was not justified on the tertiary ground.

The Review Proceedings

[6] About two months later, the appellant brought an application "in the nature of habeas corpus with certiorari in aid" before a judge of the Superior Court of Justice. The relief sought was an order:

Declaring that the Court has jurisdiction to address the Applicant's bail, pursuant to: 1) the Court's inherent jurisdiction to grant bail; and 2) the Court's inherent jurisdiction to hear habeas corpus applications;
Declaring that the absence of a review mechanism for the Applicant's denial of bail by a trial judge, which order was made on November 1, 2016, pursuant to section 523(2) of the Criminal Code, violates the Applicant's rights under section 7 and 9 of the Charter;
Declaring that, as a remedy to the violation of her rights under section 7 and 9 of the Charter, Applicant is entitled to a review of her bail under section 24(1) of the Charter.
Declaring that the Applicant's detention is not justified on the primary, secondary, or tertiary grounds.
Granting the Applicant judicial interim release order pending sentencing.

[7] The application judge dismissed the application. He concluded:

i. a judge of the Superior Court of Justice has the inherent jurisdiction to review the appellant's detention and grant her bail;

ii. the inherent jurisdiction may only be exercised provided that it does not contravene any statutory provision;

iii. section 523(2)(a) of the Criminal Code clearly indicates Parliament's intention to make trial judges' orders on release or detention final since no review mechanism is provided; and

iv. habeas corpus is not available as an appropriate remedy to achieve the result the appellant seeks.

The Appeal

[8] The appellant advanced several arguments in her written and oral submissions. I would paraphrase those submissions as arguments that the application judge erred:

i. in finding that the Superior Court of Justice lacked inherent jurisdiction to review an order made under s. 523(2)(a) of the Criminal Code, despite the principle that such jurisdiction is available to remedy unintentional gaps in legislation such as the inclusion of a mechanism to review those orders;

ii. in failing to consider the availability of habeas corpus to determine the legality of the appellant's detention in light of the absence of a statutory review mechanism;

iii. in failing to find that the absence of a review mechanism for orders made under s. 523(2)(a) violates the appellant's rights under ss. 7 and 9 of the Charter in granting a bail review as an appropriate and just remedy; and

iv. in failing to find that the appellant's detention was without just cause.

Discussion

[9] At the conclusion of argument we dismissed the appeal. These are our reasons for having done so.

The Inherent Jurisdiction Argument

[10] The first ground of appeal alleges that the application judge erred in failing to hold that, as a judge of the superior court of criminal jurisdiction, he had inherent jurisdiction to review the trial judge's order because of an unintentional legislative gap in the Criminal Code – the failure to make express provision for a review of that order.

[11] We do not agree.

[12] To begin, we do not consider the legislative lacuna relied upon by the appellant as an unintentional gap. We see it as a deliberate legislative choice to confer upon the trial judge the authority to alter an accused's judicial interim release status as trial proceedings unfold. In light of the plethora of other review mechanisms – as for example ss. 520, 521, 525 and 680 – it simply cannot be said that Parliament's choice was other than deliberate: R. v. Bukmeier (1996), 107 C.C.C. (3d) 272 (BCCA), at paras. 15, 20. See also, R. v. Durrani, 2008 ONCA 856, at paras. 13-14.

[13] The absence of a review mechanism and the unavailability of recourse to inherent jurisdiction to fill the gap is also consistent with general principle. The decisions of trial judges on procedural, evidentiary and substantive issues within their purview, in short, the management of trial proceedings, is left to the trial judge. In limine review proceedings, with their resultant delay; fragmentation of the criminal trial process; determination of issues on an incomplete and inadequate evidentiary record, not to mention their consumption of time and effort and unnecessary depletion of scarce judicial resources, are the antithesis of our system of criminal justice: R. v. Johnson (1991), 3 O.R. (3d) 49 (C.A.), at para. 8.

[14] Third, a similar argument invoking inherent jurisdiction as the source of authority in the absence of a specific statutory provision authorizing what is sought was rejected by this court in R. v. Kennedy, [1972] 2 O.R. 754 (C.A.), at pp. 755-756 and in R. v. Morgentaler, Smoling and Scott (1984), 16 C.C.C. (3d) 1 (Ont. C.A.), at pp. 5-6.

[15] Fourth, to give effect to the appellant's argument would be to permit circumnavigation of a clear Parliamentary intention to leave matters of judicial interim release at trial in the hands of the trial judge, where other equally significant procedural, evidentiary and substantive decisions reside, subject to review at the conclusion of trial proceedings. And, as the respondent points out, section 523(2)(a) is itself a review provision since it involves consideration of a prior detention or release order. What is more, there is nothing to prevent a second or subsequent application under s. 523(2)(a) as fortunes change at trial.

The Habeas Corpus Application

[16] The appellant's second ground of appeal alleges that the application judge failed to consider her argument that she was entitled to relief by way of habeas corpus with certiorari in aid.

[17] In our view, the application judge did, albeit briefly, consider this aspect of the appellant's argument and rightly rejected it.

[18] It is worth reminder at the outset, that habeas corpus is an extraordinary remedy. It, like its siblings, issues out of the superior court of criminal jurisdiction to ensure that courts of limited jurisdiction conduct themselves within that jurisdiction. It does not issue, at least as a general rule, to supervise the conduct of proceedings in the court from which it issues. That is not to say that it cannot do so. See, for example, R. v. Gamble, [1988] 2 S.C.R. 595. But those circumstances do not obtain here.

[19] Second, and more importantly, it is well settled that it is only in exceptional cases that habeas corpus may be invoked to remedy a refusal to grant judicial interim release. One such instance occurs when an applicant challenges the constitutional integrity of the applicable statutory authority under s. 52(1) of the Constitution Act and seeks a remedy, say a judicial interim release hearing or release, under s. 24(1) of the Charter: R. v. Pearson, [1992] 3 S.C.R. 665, at paras. 24-25.

[20] But that is not this case. The appellant does not seek to strike down as unconstitutional s. 523 of the Criminal Code for its failure to include or to incorporate by reference a review mechanism like s. 520. Nor does she seek to strike down s. 520(1) for its failure to include an order under s. 523(2), more particularly, s. 523(2)(a), within its sweep. Thus the limited exception to the general unavailability of habeas corpus as a remedy against denial of judicial interim release is beyond the appellant's grasp. Further, the appellant has not attempted to comply with the notice requirements applicable to challenges under s. 52 of the Constitution Act. To permit her to invoke habeas corpus to achieve the same result would be to allow her to mount an indirect attack on the integrity of the legislation, a course that is not open to her.