WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2019-07-02

Docket: M50558 (C62938)

Motions Judge: Brown J.A.

Parties

Between

Her Majesty the Queen Respondent

and

D.C. Appellant

Counsel

Dana Achtemichuk, for the appellant

Catherine Weiler, for the respondent

Heard: June 25, 2019

Reasons for Decision

Background

[1] This is an application to the Court of Appeal for interim release pending the new trial ordered by this court.

[2] In 2016, the applicant was convicted on three counts of assault with a weapon, one count of aggravated assault, and one count of assault. He received a sentence of 4.5 years, less 10 months credit for presentence custody.

[3] He appealed his conviction.

[4] The applicant was released from custody on statutory release on January 18, 2019. However, upon his release he was arrested and held in immigration detention pending his deportation.

[5] By decision dated May 28, 2019, this court allowed the appeal, set aside the convictions, and ordered a new trial: 2019 ONCA 442.

[6] At some point after this court released that decision, the applicant was released from immigration detention but continued to be detained.

[7] The Crown is re-prosecuting the applicant. That proceeding is taking place in the Superior Court of Justice ("SCJ") in a region outside of Toronto. The first appearance before the SCJ took place on June 11, 2019. A judicial pre-trial was scheduled for June 26, 2019.

[8] Around the middle of June, 2019, applicant's counsel sought a date to bring a bail application before the SCJ but was advised that the application had to be brought before the Court of Appeal.

[9] When the application was brought in this court, Crown counsel took the position that it should have been brought before the SCJ. Nevertheless, Crown counsel worked out terms of interim release with applicant's counsel.

[10] The matter proceeded before me on June 25, 2019. I expressed the view that the application properly lay to the SCJ. However, I heard it and endorsed the record: "For written reasons to follow, application for pre-trial release granted on terms set out in consent order filed."

[11] I write simply to observe that this application for bail should have been accepted by the SCJ for hearing.

Jurisdictional Framework

[12] In R. v. Manasseri, 2017 ONCA 226, Watt J.A. observed, at paras. 40 and 41, that judicial decisions have interpreted the phrase "pending the new trial" in s. 679(7.1) of the Criminal Code:

[T]o encompass two discrete time periods with implications for the forum in which the application for release is heard and determined. Those time periods are:

i. the time between the order for a new trial and the successful appellant's first appearance in the trial court; and

ii. the time between the first appearance in the trial court and the start of the new trial.

See, R. v. Barbeau (1998), 131 C.C.C. (3d) 350 (Que. C.A.) (Fish J.A., in chambers, at p. 352); R. v. Ranger (2003), 180 O.A.C. 138 (C.A.) (Feldman J.A., in chambers, at para. 9).

In the first time period, a judge of the court of appeal has exclusive jurisdiction over release pending a new trial: Barbeau, at p. 352; Ranger, at para. 10; R. v. Vincent, 2008 ONCA 76, [2008] O.J. No. 534, (Sharpe J.A., in chambers), at para. 7; R. v. Geddes, 2012 MBCA 31, 100 W.C.B. (2d) 817 (Chartier J.A., in chambers), at para. 3. In the second time period, a judge of the court of appeal and a judge of the trial court have concurrent jurisdiction over release pending a new trial: Ranger, at paras. 19, 21; Vincent, at para. 8.

[13] Watt J.A. went on to identify, in para. 43, a number of considerations to take into account in determining the most appropriate forum for the hearing and determination of the interim release application.

[14] In the present case, by the time the applicant sought to arrange a date for a pre-trial interim release hearing in this matter, the period of exclusive jurisdiction of this court under s. 679(7.1) of the Criminal Code was at an end: this court had directed a new trial by reasons dated May 28, 2019 and the applicant had had his first appearance before the Superior Court of Justice on June 11, 2019. By the time the applicant sought to schedule a hearing date with the SCJ for his interim release application, the SCJ and this court had concurrent jurisdiction to hear the application.

Division of Labour Between Courts

[15] Where concurrent jurisdiction over judicial interim release exists, the message of this court has been consistent and clear: courts of appeal should deal with bail pending appeal and superior courts should deal with bail prior to and during a trial. Any departure from that clear division of labour requires an applicant to demonstrate "special circumstances" that would justify an appellate court exercising its concurrent jurisdiction under s. 520 of the Criminal Code: R. v. Durrani, 2008 ONCA 856, at para. 34; R. v. George, 2018 ONCA 314, at paras. 18 and 19.

[16] These principles apply equally when considering the appropriate forum in which to hear a bail application following the ordering of a new trial.

[17] As I read the decision in Manasseri, in that case this court determined, in effect, that special circumstances in that case made this court the appropriate forum in which to hear and determine the application for release pending the new trial. However, where a new trial has been ordered by this court and the SCJ has concurrent jurisdiction, the general "division of labour" set out in Durrani should guide counsel's selection of the appropriate forum in which to bring a bail application. In the present case, the SCJ should have acceded to counsel's request to schedule a bail hearing.

David Brown J.A.