WARNING

An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ali, 2020 ONCA 566

DATE: 20200909

DOCKET: M51726

Trotter J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Abdirisaq Ali

Applicant

R. Craig Bottomley and Mayleah Quenneville, for the applicant

Karen Papadopoulos, for the respondent

Heard: August 27, 2020 by teleconference

Introduction

[1] The applicant is charged with two counts of second degree murder. He was ordered detained in custody after a bail hearing conducted under s. 522 of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge subsequently reviewed that decision pursuant to s. 523(2)(a) of the Criminal Code and declined to vacate Mr. Ali’s detention order.

[2] The applicant applies under s. 680(1) of the Criminal Code for a direction that a panel of this court review his detention.

[3] Section 680(1) provides:

s. 680(1) A decision made by a judge under section 522, a decision made under subsections 524(3) to (5) with respect to an accused referred to in paragraph 524(1)(a) or a decision made by a judge of the court of appeal under section 320.25 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision,

(a) vary the decision; or

(b) substitute such other decision as, in its opinion, should have been made.

I have been designated by the Chief Justice of Ontario to decide this application.

[4] The respondent Crown has raised a question concerning this court’s jurisdiction to consider the applicant’s request for review. The Chief Justice has directed that the jurisdictional issue be determined first.

[5] The Crown’s jurisdictional challenge must succeed. Section 680 vests no power in this court to review the decision of a trial judge under s. 523(2)(a). For this reason, the application must be dismissed. However, the applicant is not without recourse; he may bring a fresh application under s. 522 of the Criminal Code, if so advised.

Background

[6] The applicant and his co-accused, Tanade Mohamed, are charged with two counts of second degree murder. The applicant was arrested on October 2, 2017 and has remained in custody ever since.

[7] Forestell J. of the Superior Court of Justice dismissed Mr. Ali’s application for bail under s. 522 of the Criminal Code on July 4, 2018.

[8] The trial commenced in early 2020 before B.P. O’Marra J. The Crown’s case was almost complete by March 16, 2020 when public concern about the COVID-19 virus led to a postponement of the proceedings. The trial was adjourned until June 8, 2020.

[9] In the meantime, the applicant applied to review his bail before the trial judge, pursuant to s. 523(2)(a) of the Criminal Code. On May 15, 2020, the trial judge dismissed the application: R. v. Ali, 2020 ONSC 2968. Two weeks later, it became apparent that the trial could not continue due to the pandemic. The trial judge declared a mistrial and discharged the jury. It is anticipated that a new trial will not commence until March 2021.

Discussion

[10] The Crown takes the position that, because the decision under review was made pursuant to s. 523(2)(a) of the Criminal Code, this court lacks jurisdiction to review the propriety of the applicant’s detention. Section 680(1) explicitly permits appellate review of orders made under the following Criminal Code provisions: s. 522 (a bail hearing on a s. 469 offence); ss. 524(3) to (5) (bail revocation decisions in relation to s. 469 offences); s. 320.25 (stays of driving prohibitions made by a judge of the court of appeal); and s. 679 (bail pending appeal). Section 680 does not refer to decisions made under s. 523(2).

[11] Part XVI of the Criminal Code provides various avenues for the review of bail decisions, ensuring that the accused person and the prosecutor have the ability to challenge the accused person’s bail status as the case travels through the trial process. The main bail review provisions are found in ss. 520, 521, 525 and 680. Sections 520 and 521, which were considered by the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 90-139, permit the review of bail decisions made in respect of offences not listed in s. 469 of the Criminal Code. Additionally, s. 525 of the Code requires the review of an accused person’s detention when the trial has been delayed, but only in respect of offences not listed in s. 469. See the discussion in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at paras. 28-63. Finally, s. 680 permits the review of pre-trial bail decisions made under s. 522 (for s. 469 offences), as well as other decisions listed in the paragraph above. See the discussion of s. 680 in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 53-64.

[12] Section 523(2) augments these main bail review provisions by providing avenues for review that are more specialized. Subsections 523(1) to (1.2) deal with the duration of bail orders and address the impact on bail when a new information is received, or a direct indictment is preferred. Section 523(2) then provides for the following three types of review:

(2) Despite subsections (1) to (1.2),

(a) the court, judge or justice before which or whom an accused is being tried, at any time,

(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469, or

(c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time

(i) where the accused is charged with an offence other than an offence listed in section 469, the justice by whom an order was made under this Part or any other justice,

(ii) where the accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or

(iii) the court, judge or justice before which or whom an accused is to be tried,

may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [Emphasis added.]

[13] This application only concerns s. 523(2)(a), which authorizes the judge “before whom an accused is being tried” to review a bail order while the trial is underway. Section 523(2)(b) empowers the preliminary inquiry judge to review a prior bail decision in relation to offences not listed in s. 469, whereas s. 523(2)(c) provides a procedure for returning to the court with plenary bail jurisdiction to request changes to a prior order, under s. 515 or s. 522 as the case may be, with consent of both parties.

[14] The opportunities to review orders made under s. 523(2) are not robust. Orders made under s. 523(2)(b) are reviewable under ss. 520(1) and 521(1). There is no avenue to review orders made under s. 523(2)(a) or (c).

[15] Section 523(2)(a) empowers trial judges to address the bail status of accused persons during the course of the trial. The lack of a review mechanism forecloses interference by another court while the trial is ongoing. See paras. 12-13 of R. v. Passera, 2017 ONCA 308, 352 C.C.C. (3d) 478, discussed further below.

[16] Returning to the issue of jurisdiction, s. 680(1) does not refer to a decision made by a trial judge under s. 523(2)(a). The applicant accepts that, on a straightforward reading of s. 680(1), there is no jurisdiction for this court to review a s. 523(2)(a) order. However, he submits that the circumstances of his case are unique in a way that should relieve him of the strictures of s. 680(1). I disagree.

[17] Almost 25 years ago, in R. v. Bukmeier (1996), 1996 CanLII 2503 (BC CA), 107 C.C.C. (3d) 272 (B.C.C.A.), the Court determined that there is no jurisdiction under s. 680 to review a decision made under s. 523(2)(a). As the Court said, at para. 15:

It is trite law that this Court is a court of statutory jurisdiction. We were urged to find some means of review where the condition precedent to an order is the requirement that cause be shown. However attractive this may be in principle, we are not prepared to ignore the plain wording of s-s.680(1) or to conclude that the omission of any reference to s.523 in s-s.680(1) is a mere oversight. In our view Parliament intended that an order made under s-s.523(2) by a judge of a superior court of criminal jurisdiction shall be a final order. The result is that any review of such an order must be made by the Supreme Court of Canada under s-s.40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, if that Court considers the criteria for leave to appeal are present. [Emphasis added.]

[18] Staying in British Columbia for the moment, there is related support for this position. In R. v. Purdy, 2005 BCCA 99, 208 B.C.A.C. 267, the accused was detained following a bail hearing under s. 522 of the Code. A bail review was conducted under s. 523(2)(c), which requires the consent of the Crown. That application was dismissed.

[19] Purdy applied for a direction under s. 680 of the Criminal Code. The application was dismissed for want of jurisdiction. Although he did not refer to Bukmeier, Finch C.J.B.C. took the same approach, holding that the language of s. 680 of the Criminal Code does not provide for review of a s. 523 order (see Purdy, at paras. 8-11).

[20] This court reached the same conclusion in Passera. Ms. Passera was found guilty of drug offences. On the date fixed for sentencing, she filed a constitutional challenge, the effect of which was to delay sentencing. In the meantime, Ms. Passera made an unsuccessful application to the trial judge for release under s. 523(2)(a) of the Criminal Code. Recognizing that an order under s. 523(2)(a) could not be reviewed under s. 520 because the trial had not yet concluded, she brought a habeas corpus application. That application was likewise dismissed.

[21] On appeal from the dismissal of the habeas corpus application, this court addressed the reviewability of orders made under s. 523(2)(a). As the court said, at paras. 10-13 and 15:

[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), 1996 CanLII 2503 (BC CA), 107 C.C.C. (3d) 272 (B.C. C.A.), at paras. 15, 20. See also, R. v. Durrani, 2008 ONCA 856 (Ont. C.A. [In Chambers]), 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), 1991 CanLII 7174 (ON CA), 3 O.R. (3d) 49 (Ont. C.A.), at para. 8.

[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. [Emphasis added.]

[22] Subsequent events confirm the court’s decision that the legislative gap is intentional. In 2019, Parliament made extensive changes to the bail provisions: Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess., 42nd Parl., 2019, c. 25. Minor changes were made to s. 680, but the ambit of the section was not widened to accommodate reviews of decisions made under s. 523(2).

[23] In her able oral submissions on behalf of the applicant, Ms. Quennville attempts to distinguish this case from Passera. She submits that the circumstances of this case are very different from Passera because there is no longer any need to protect a trial judge from outside interference. There is no trial. Consequently, the functional justifications for foreclosing a right of review no longer exist. Moreover, the court’s reference to the ability of an accused to make a “second or subsequent application under s. 523(2)(a) as fortunes change at trial” is of no consolation.

[24] The applicant submits that this jurisdictional barrier could be overcome by treating the order under review as one that was more properly made under s. 522, rather than s. 523(2)(a). The reason advanced for this reclassification is that, had the application for a bail review been made two weeks later – after the mistrial had been declared – the application would have been heard under s. 522, providing this court with jurisdiction to review the decision.

[25] There are problems with this position. First, the application was explicitly made under s. 523(2)(a). Given that the applicant had been placed in the charge of the jury at that time, s. 523(2)(a) was the only bail review mechanism at his disposal. The unforeseen declaration of a mistrial does not change this historical fact. To accede to this position would fictionalize what occurred solely to facilitate this court’s claim of jurisdiction to review the applicant’s detention order. This is the type of “circumnavigation” that the court warned against in Passera (see para. 15).

[26] I return to the applicant’s argument, referred to above, that had the mistrial been granted two weeks later, any review of his bail would have been under s. 522 of the Criminal Code. That is where his remedy now lies – he may apply for release under s. 522. Also, as indicated at para. 15 of Bukmeier, the applicant may apply for leave to appeal to the Supreme Court of Canada, although I accept that this might not be as practical a solution. Nonetheless, he is not without a means of reviewing his detention.

[27] The applicant submits that he prefers a review in this court under s. 680 because he wishes to assert error on the part of the trial judge; he contends that under s. 522, he would be restricted to arguing a material change of circumstances. While a s. 680 review may be the applicant’s preference, it does not eradicate the jurisdictional barrier. Although the issue was not fully argued before me, the applicant’s counsel indicated that the alleged error on the part of the trial judge is insufficiency of his reasons. I make no comment on the merits of this submission, but observe that, standing alone, a claim of insufficient reasons, if successful, would not result in the order under review being set aside. The court would still be required to examine the record to determine whether release is appropriate in all of the circumstances. This is ultimately what is required of a judge hearing a fresh application under s. 522.

[28] In conclusion, there is no jurisdiction to review the applicant’s detention order made under s. 523(2)(a). Accordingly, it is not necessary to consider the merits of the application.

Disposition

[29] The application is dismissed.

“Gary Trotter J.A.”