Court of Appeal for Ontario

Date: 2018-04-04 Docket: M48985 Judge: Watt J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

Shaun Rootenberg Applicant

Counsel

Shaun Rootenberg, in person

Tracy Kozlowski, for the respondent

Heard and released orally: March 29, 2018

Application under s. 520(1) of the Criminal Code to review the detention order made by Justice Michael R. Dambrot of the Superior Court of Justice under ss. 521(1) and (8)(e) of the Criminal Code on February 26, 2018

Endorsement

[1] Introduction

Shaun Rootenberg, whom I will describe as the applicant, seeks an order under s. 520(7) of the Criminal Code vacating a detention order made February 26, 2018 pursuant to ss. 521(1) and (8)(e) of the Criminal Code. The detention order was made by a judge of the Superior Court of Justice on application by the Crown to vacate a release order made at the conclusion of a preliminary inquiry by the committing justice.

The Background

[2] On June 6, 2017 the applicant was arrested on four counts of each of fraud over $5000, possession of the proceeds of crime and money laundering. He surrendered into police custody on that day.

[3] On June 8, 2017, at the conclusion of a judicial interim release hearing, a justice of the peace ordered the applicant detained in custody on the primary and secondary grounds.

[4] About one month later, on July 10, 2017, the applicant brought a bail review application before a judge of the Superior Court of Justice. The application was dismissed.

[5] On September 1, 2017 a second bail review application was brought before a different judge of the Superior Court of Justice. That application also failed.

[6] Prior to or at some point during the conduct of the preliminary inquiry held from December 20-22, 2017 the Crown withdrew the counts of possession of the proceeds of crime and laundering the proceeds of crime. The preliminary inquiry proceeded as scheduled on the remaining four counts of fraud over $5000.

[7] At the conclusion of the preliminary inquiry, the applicant, who was committed for trial on all four counts of fraud, applied to the presiding justice to review the detention order under s. 523(2)(b) of the Criminal Code. On January 18, 2018 the committing justice vacated the detention order and directed the applicant's release on a recognizance with sureties and subject to conditions.

[8] On January 29, 2018 the applicant appeared in the Superior Court of Justice. He was then served with an application by the Crown to review the release order made by the committing justice. That application was heard by a third judge of the Superior Court of Justice almost a month later, on February 26, 2018. The application was allowed, the release order vacated and the applicant detained in custody.

[9] The applicant is self-represented.

The Application

[10] The applicant claims that special circumstances exist that warrant a judge of this court, exercising the jurisdiction conferred by s. 520(1) of the Criminal Code, reviewing the order of the judge of the Superior Court of Justice vacating the release order made by the committing justice and substituting a detention order.

[11] As I apprehend his submissions, the applicant contends that to allow another judge of the Superior Court of Justice to review the bail order (in this case, a detention order) made by another judge of the same court "is not in keeping with the hierarchical scheme of the bail system in Canada".

[12] The applicant also points to what he says are several errors made by the judge conducting the review of the release order put in place by the committing justice. In particular, he finds fault in the reviewing judge's determination that neither the withdrawal of the proceeds and money laundering counts nor any other factor amounted to material change in circumstances sufficient to authorize the committing justice to set aside the detention order and substitute an order for release.

Discussion

[13] To take first the submission that to allow another judge of the Superior Court of Justice to review the bail (detention) order of a fellow judge of the same court is not in keeping with the hierarchical scheme of the bail system in Canada.

[14] This argument founders on several grounds.

[15] First, the same argument was advanced and rejected in R. v. Durrani, 2008 ONCA 856, a decision of MacPherson J.A. sitting in chambers. As he points out, this argument not only finds no support in the wording of s. 520 and I would add, s. 521, but is contradicted by it. These review provisions plainly contemplate more than a single opportunity to bring a bail review application on both sides. Further, it logically follows, they contemplate that different judges of the superior court will sometimes hear them: see Durrani, at para. 29.

[16] Second, the fact that the proposed review is based at least in part on an alleged error of law by a judge of the Superior Court of Justice does not, on its own, qualify as a special circumstance justifying a judge of this court to entertain a review. Nor does an allegation of error stamp the decision as only capable of review by this court. Judges of the Superior Court of Justice will fulfill their responsibilities by finding judicial error, if it exists and falls within their review jurisdiction, by exercising an independent discretion if the circumstances call for it. At one point in his oral submissions, the applicant appeared to suggest an institutional bias in the Superior Court of Justice. It appears funded by nothing more than a disagreement with the conclusions reached by various judges of that court, a ground that simply cannot support such a claim.

[17] Third, implicit in the argument that a judge of this court should exercise jurisdiction because of the hierarchical structure of the courts of this province seems to be a perception that a judge of the appellate court occupies a higher rung in the judicial hierarchy than a judge of the provincial superior trial court when it comes to a review of release or detention orders or decisions. This perception is not grounded in reality.

[18] Whatever may be their patent or their jurisdiction elsewhere under the Criminal Code, the review authority established by ss. 520 and 521 of the Criminal Code settles upon a "judge". A "judge" is defined in s. 493 of the Criminal Code in this province as "a judge of the superior court of criminal jurisdiction of the province". And in this province, s. 2 of the Criminal Code defines "superior court of criminal jurisdiction" as "the Court of Appeal or the Superior Court of Justice". It necessarily follows that judges of each court have the same review jurisdiction. Judges of the Court of Appeal have no more or different review jurisdiction than judges of the Superior Court of Justice. And judges of the Superior Court of Justice have no less review jurisdiction than judges of the Court of Appeal. All are equal for these purposes. Some are not more equal than others.

[19] The decision in Durrani also makes the point that what constitutes "special circumstances" is to be defined quite narrowly. While I do not consider the examples given in Durrani were intended to be or should be considered to be exhaustive, I am not satisfied that there is anything in this case that would so qualify. In particular, I have in mind the assertion of legal error as a gateway to the "special circumstances" exception to permit a judge of this court to conduct a review. That principle was rejected in Durrani as well as the recent decision in R. v. George, 2018 ONCA 318, at para. 27 and by the Manitoba Court of Appeal in R. v. Zenelli, 2003 MBCA 50, at para. 9. It assumes that only judges from an appellate court can correct errors by judges of the superior trial court. Mere statement of that proposition refutes it.

[20] The applicant also addressed the merits of the application. He asserted the judge, whose decision is under review, committed multiple errors in the conduct of the hearing and the result he reached. He denied an adjournment. He failed to consider the committing judge's reason as a whole. He erred in considering that withdrawal of counts of money laundering and possession of proceeds of crime did not amount to a material change in circumstances, to name but a few.

[21] Since I have not been persuaded that special circumstances warrant exercising my coordinate jurisdiction, I do not reach these issues. Suffice it to say, that if I did, the result would be no different.

Conclusion

[22] The application is dismissed.

"David Watt J.A."