Court of Appeal for Ontario
Date: 2018-01-30
Docket: M48714 (C63358)
Motion Judge: Feldman J.A.
Between
Her Majesty the Queen Respondent (Moving Party)
and
Banh La Appellant (Responding Party)
Counsel
Ravin Pillay, for the appellant
Jeremy Streeter, for the respondent
Heard: January 24, 2018
Reasons for Decision
A. Introduction and Background
[1] The Crown seeks an order vacating the appellant's bail pending appeal, detaining the appellant in custody until he is dealt with according to law, noting the bail in default, and issuing an arrest warrant if necessary.
[2] The appellant was convicted of possession of marihuana for the purpose of trafficking and production of marihuana on April 22, 2016. He was sentenced on January 16, 2017 to 15 months' imprisonment and two years' probation. He filed a notice of appeal on February 16, 2017 and was released on bail pending appeal on April 18, 2017.
[3] On December 17, 2017, while on bail pending appeal, the appellant was arrested on three counts of sexual assault and two counts of forcible confinement with respect to two victims, and for failure to comply with a probation order. On December 22, 2017, the appellant was released on bail with a return date of January 22, 2018. This motion proceeded on the basis that the appellant remains out of custody.
B. Criminal Code Provisions
[4] Section 679(6) provides that:
The provisions of subsections 525(5), (6) and (7) apply with such modifications as the circumstances require in respect of a person who has been released from custody under subsection (5) of this section.
[5] Sections 525(5), (6) and (7) provide that:
(5) Where a judge having jurisdiction in the province where an order under subsection (4) for the release of an accused has been made is satisfied that there are reasonable grounds to believe that the accused
(a) has contravened or is about to contravene the undertaking or recognizance on which he has been released, or
(b) has, after his release from custody on his undertaking or recognizance, committed an indictable offence,
he may issue a warrant for the arrest of the accused.
(6) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused who has been released from custody under subsection (4)
(a) has contravened or is about to contravene the undertaking or recognizance on which he has been released, or
(b) has, after his release from custody on his undertaking or recognizance, committed an indictable offence,
may arrest the accused without warrant and take him or cause him to be taken before a judge having jurisdiction in the province where the order for his release was made.
(7) A judge before whom an accused is taken pursuant to a warrant issued under subsection (5) or pursuant to subsection (6) may, where the accused shows cause why his detention in custody is not justified within the meaning of subsection 515(10), order that the accused be released on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions, described in subsection 515(4), as the judge considers desirable.
C. Analysis
[6] Counsel for the appellant submitted that this court does not have the authority under the Criminal Code provisions referred to, to order that the appeal bail be vacated when the appellant is out of custody. He submits that the court may only order a warrant of arrest. Once the appellant is in custody, he is entitled to a show cause hearing. Counsel referred to the following decisions of this court: R. v. U. (F.J.) (1995), 78 O.A.C. 156 (C.A., in Chambers); R. v. Dallaire (2001), 141 O.A.C. 65 (C.A., in Chambers); and R. v. Currie (1999), 123 O.A.C. 201 (C.A., in Chambers).
[7] In Dallaire and Currie, the appellants were in custody as they were not released on the new charges. In both cases, the appeal court judge revoked the appeal bail, leaving it to the appellant to show cause by seeking a new bail order pending appeal, if so advised.
[8] In U. (F.J.), the appellant was convicted at trial of sexual offences against his daughter in December 1990. In May 1994, this court upheld the convictions. The appellant appealed to the Supreme Court and was granted bail pending appeal. He had also been granted bail pending his appeal to this court.
[9] In November 1994, the appellant was arrested and charged with sexual offences against another child. The offences allegedly occurred both while he was on bail pending his appeal to this court, and while on bail pending appeal to the Supreme Court. Following his arrest, he was able to show cause and he was released. An appeal of that release was unsuccessful. The appellant therefore remained out of custody. The Crown then sought to have his appeal bail revoked.
[10] Goodman J.A., sitting in chambers, found that the court had no jurisdiction to revoke a bail order when the appellant had not been brought before a judge. There was no Criminal Code provision that gave the court that authority.
[11] However, he was prepared to treat the Crown's application as an application to issue an arrest warrant pursuant to s. 525(5), having found that there were reasonable grounds to believe that the appellant had committed an indictable offence while on release. He therefore ordered a warrant for the appellant's arrest, without prejudice to the appellant's right to show cause under s. 525(7).
[12] Most recently, in R. v. Manasseri, 2015 ONCA 3, 329 O.A.C. 156 (in Chambers), Watt J.A., at para. 32, summarized the current understanding of the court's jurisdiction as follows:
[T]he parties agree that, at least where an appellant is in custody on a charge of failure to comply with a recognizance entered into pursuant to an order for release pending appeal, a chambers judge has authority to:
i. revoke the release order;
ii. cancel the recognizance; and
iii. where the appellant shows cause that his or her detention is not necessary within s. 515(10) of the Criminal Code, order the appellant's release from custody on a fresh recognizance. [Citations omitted.]
[13] See also the text by Gary T. Trotter (now Trotter J.A.), The Law of Bail in Canada, loose-leaf (2017-Rel. 2), 3d ed. (Toronto: Carswell, 2010), at pp. 11-17 to 11-21.
[14] In this case, as in U. (F.J.), a warrant of arrest is necessary to bring the appellant into custody. The appellant agrees that procedurally, this court may order an arrest warrant.
[15] In my view, because the appellant cannot be released again pending appeal unless he shows cause, using the written application procedure for release pending appeal employed in this court, although the court cannot make an order revoking the appeal bail while the appellant remains out of custody, the effect of the warrant and arrest is to cancel the recognizance contained in that order. No separate order is required to do so.
[16] The appellant also submits that although this court has the jurisdiction to issue a warrant of arrest, it should not do so in this case because the record before the court does not afford the court reasonable grounds to believe that the appellant committed an indictable offence while on release (s. 525(5)).
[17] I do not agree. The police synopsis afforded reasonable and probable grounds to charge and arrest the appellant for the indictable offences of sexual assault and forcible confinement. Those facts and the arrest satisfy me that there are reasonable grounds to believe the appellant committed an indictable offence while on release.
[18] A warrant for arrest will therefore issue. Effectively, the existing order for release pending appeal will be of no further effect. Following his arrest, the appellant will be entitled to show cause in accordance with s. 525(7), and seek a new release pending appeal, in the normal manner.
K. Feldman J.A.