Her Majesty the Queen v. J.A.

[Indexed as: R. v. A. (J.)]

Court of Appeal for Ontario Trotter, Zarnett and Coroza JJ.A. February 11, 2021

Case Summary

Courts — Jurisdiction — Court of Appeal — Order releasing accused on bail on strict conditions overturned — Accused ordered detained pending trial for first-degree murder and attempted murder — Accused applying for leave to appeal detention order to Supreme Court of Canada and applying to Court of Appeal for bail pending appeal — Single judge of Court of Appeal denying bail application — Accused's application to panel of Court of Appeal to review denial of bail application dismissed — Panel had jurisdiction but there was no basis to set aside or vary decision — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5) — Criminal Code, R.S.C. 1985, c. C-46, s. 679 — Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1.

Criminal law — Bail — Bail pending appeal — Jurisdiction — Detention order — Review — Order releasing accused on bail on strict conditions overturned — Accused ordered detained pending trial for first-degree murder and attempted murder — Accused applying for leave to appeal s. 680 detention order to Supreme Court of Canada and applying to Court of Appeal for bail pending appeal — Single judge of the Court of Appeal denying bail application on basis that he lacked jurisdiction to review decision under s. 680 of the Code — Accused's application to panel of Court of Appeal to review denial of bail application dismissed — Panel had jurisdiction but there was no basis to set aside or vary decision — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5) — Criminal Code, R.S.C. 1985, c. C-46, s. 679 — Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1.

The accused was charged with two counts of first-degree murder and one count of attempted murder. His first bail application was dismissed as was a review of the detention order. He brought a second bail application relying on changed circumstances. That application was successful and he was released on strict conditions. The Crown applied under s. 680 of the Criminal Code to review the release order. A single judge of the Court of Appeal directed that a panel review the decision. In October 2020, a majority of the panel allowed the application and imposed a detention order. The accused applied for leave to appeal the detention order to the Supreme Court of Canada. He then applied to a single judge of the Court of Appeal for bail pending appeal under s. 679(1)(c) of the Criminal Code. In the alternative, he relied on s. 65.1 of the Supreme Court Act to request a stay of the detention order pending his leave to appeal application. The single judge dismissed the application in November 2020, concluding that he did not have jurisdiction to release under s. 679(1), and declining to grant a stay as to do so would have circumvented the statutory scheme of judicial release. The accused moved before the Supreme Court of Canada to stay the October 2020 order. In the alternative, he requested that the case be returned to the Court of Appeal for a determination pursuant to s. 679(1)(c). That motion was dismissed on the basis that the parties may have had recourse under the Courts of Justice Act and the Criminal Code that they had not exhausted at the Court of Appeal. The accused applied to have the November 2020 dismissal reviewed by a panel of the Court of Appeal.

Held, the application should be dismissed.

There was no basis to set aside or vary the November decision as it related to a stay of the October order. The panel had the power under the Courts of Justice Act to review the November decision. However, the order of the Supreme Court made no reference to s. 679(1)(c), which was significant because consideration by the Court of Appeal of the applicability of that provision was the alternative relief requested by the accused. Considered without context, s. 679(1)(c) could be read as encompassing an application for leave to appeal from a court of appeal's denial of bail under s. 680. But that was not what s. 679 was designed to achieve. As with the rest of the section, and consistent with Part XXI (Appeals -- Indictable Offences) as a whole, s. 679(1)(c) applied to bail pending appeal from conviction and/or sentence; not from a bail decision under s. 680. The request of a review of the decision under s. 679(1)(c) is dismissed. A more challenging question was whether the Court of Appeal could exercise the power in s. 65.1 of the Supreme Court Act to in effect grant bail in a criminal proceeding. Nothing in s. 65.1 expressly excluded a detention order from the category of judgments that could be stayed. However, the accused was no longer able to meet a critical part of the release order, which was based on changed circumstances, including a new release plan. Two of the sureties, with whom the accused was ordered to live while on bail, were no longer available to serve. Those two sureties were integral to the release order and he had been ordered to live with them. The substitution of new sureties would have gone well beyond the imposition of terms deemed appropriate within the meaning of s. 65.1 and would have involved a significant refashioning of the order.

Cases Referred To

• R. v. A. (J.), 2019 ONSC 4532
• R. v. A. (J.), 2019 ONCA 831
• R. v. A. (J.), [2020] O.J. No. 1659, 2020 ONSC 2312 (S.C.J.)
• R. v. A. (J.), [2020] O.J. No. 3077, 2020 ONCA 470
• R. v. A. (J.) (2020), 153 O.R. (3d) 593, [2020] O.J. No. 4760, 2020 ONCA 660
• R. v. Royes, [2016] C.M.A.J. No. 1, 2016 CMAC 13, 338 C.C.C. (3d) 183, 357 C.R.R. (2d) 156, 486 N.R. 257 [Leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 324]
• R. v. Scherba (2001), 54 O.R. (3d) 555, [2001] O.J. No. 2235, 146 O.A.C. 99, 155 C.C.C. (3d) 512
• R. v. Stillman, [2019] C.M.A.J. No. 1, 2019 CMAC 1
• R. v. Stoltz, [1993] B.C.J. No. 891, 32 B.C.A.C. 147, 84 C.C.C. (3d) 422 (C.A.)
• RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 111 D.L.R. (4th) 385, 164 N.R. 1, 60 Q.A.C. 241, 54 C.P.R. (3d) 114
• T. (M.) v. A. (H.), [1995] 1 S.C.R. 445, [1995] S.C.J. No. 11, 178 N.R. 147, J.E. 95-1347, 66 Q.A.C. 273

Statutes Referred To

• Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7, (5)
• Criminal Code, R.S.C. 1985, c. C-46, ss. 515(2.1), (10), 522(2), Part XXI [as am.], ss. 679 [as am.], (1)(c), 680 [as am.], (1)(b), 683(3)
• National Defence Act, R.S.C. 1985, c. N-5 [as am.], ss. 248.1 [as am.], 248.2 [as am.], 248.3 [as am.], 248.4 [as am.]
• Supreme Court Act, R.S.C. 1985, c. S-26, ss. 40 [as am.], 65.1 [as am.]

Counsel: Leora Shemesh, for applicant. David Friesen, Eric Taylor and Nicole Rivers, for respondent.

APPLICATION by accused for review of dismissal of an application for bail pending appeal.

BY THE COURT: --

[1] On October 21, 2020, a panel of this court ordered that the applicant be detained pending his trial on two counts of first-degree murder, and one count of attempted murder, following two shootings linked to organized crime.

[2] The applicant has sought leave to appeal this decision to the Supreme Court of Canada. In the meantime, he applied to this court seeking bail pending his application for leave to appeal; alternatively, he sought a stay of execution of the decision detaining him. Justice Juriansz, sitting as a single judge of this court, denied both heads of relief. The applicant now seeks to review both aspects of Juriansz J.A.'s decision before a panel of this court.

[3] At the conclusion of the oral hearing, we announced our decision to dismiss the application, with reasons to follow. These are our reasons.

Background

(a) History of the bail proceedings

[4] This application is the latest chapter in the applicant's effort to be released on bail while he awaits his trial.

[5] On July 30, 2019, Parayeski J. denied the applicant's first bail application, brought under s. 522(2) of the Criminal Code, R.S.C. 1985, c. C-46: R. v. A. (J.), 2019 ONSC 4532. On October 21, 2019, a panel of this court dismissed a review of that detention order under s. 680: R. v. A. (J.), 2019 ONCA 831.

[6] The applicant brought another bail application under s. 522(2), relying on asserted changed circumstances, including a revised release plan with new sureties. This time, he was successful. Goodman J. released him on April 16, 2020 on strict conditions, with named sureties in the amount of $300,000, augmented by electronic monitoring: R. v. A. (J.), [2020] O.J. No. 1659, 2020 ONSC 2312 (S.C.J.).

[7] The Crown applied under s. 680 to review Goodman J.'s release order. Fairburn J.A., as she then was, directed that a panel review the decision: R. v. A. (J.), [2020] O.J. No. 3077, 2020 ONCA 470. On October 21, 2020, Thorburn J.A. (Miller J.A., concurring) allowed the application and imposed a detention order under s. 680(1)(b) of the Criminal Code; Nordheimer J.A., dissenting, would have dismissed the Crown's application: R. v. A. (J.) (2020), 153 O.R. (3d) 593, [2020] O.J. No. 4760, 2020 ONCA 660 (the "October 2020 order").

[8] On October 21, 2020, the applicant applied to the Supreme Court of Canada for leave to appeal the October 2020 order, pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26.

(b) The order under review

[9] After filing his application for leave to appeal, the applicant applied to a single judge of this court for the following relief: first, purporting to rely on s. 679(1)(c) of the Criminal Code, the applicant requested bail pending his application for leave to appeal; and second, in the alternative, he relied on s. 65.1 of the Supreme Court Act and requested a stay of this court's October 2020 order pending his application for leave to appeal. On November 4, 2020, Juriansz J.A. dismissed the application.

[10] Justice Juriansz concluded that he did not have jurisdiction to release the applicant under s. 679(1)(c) of the Criminal Code. As he explained, at para. 11:

Section 679, when read in context of the Code's entire bail regime, is inapplicable to a person, such as the applicant, who is awaiting trial. Section 679, when read in context and given its plain grammatical meaning, applies to a person who has been convicted and allows this court to release them from custody pending the determination of an appeal of conviction and/or sentence. Section 679(1)(c) does not provide a route to have a single judge of this court review a decision of this court made under s. 680, albeit on an interim basis.

(Emphasis added)

[11] As for the applicant's alternative request for relief -- a stay of proceedings -- Juriansz J.A. ruled as follows, at para. 13:

As I have concluded I do not have jurisdiction to grant that the applicant be released under s. 679(1)(c), he requests that I consider the merits of his application for release and issue a stay of this court's October 21, 2020 order. I decline to do so, as doing so would circumvent the statutory scheme of judicial release.

(Emphasis added)

(c) The Supreme Court of Canada

[12] On November 17, 2020, the applicant applied to the Supreme Court of Canada for a stay of the October 2020 order (the "November 2020 application"). In the alternative, he requested that his case be remitted back to this court "for a determination pursuant to s. 679(1)(c)". On January 18, 2021, Martin J. issued the following order:

The motion for a stay of execution is dismissed on the basis that the parties may have recourse under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and s. 683(3) of the Criminal Code, R.S.C. 1985, C-46, that they have not exhausted at the Court of Appeal.

[13] The applicant returns to this court, relying on these provisions to review the order of Juriansz J.A.

Analysis

(a) This panel's authority to review Juriansz J.A.'s decision

[14] Section 7 of the Courts of Justice Act, R.S.O. 1990, c. C.43, determines the composition of this court in various circumstances. Subject to some exceptions, motions before this court are heard by a single judge: see R. v. Scherba (2001), 54 O.R. (3d) 555, [2001] O.J. No. 2235 (C.A.), at para. 12. Subsection 7(5) provides: "A panel of the Court of Appeal may, on motion, set aside or vary the decision of a judge who hears and determines a motion."

[15] As discussed below, an order of a single judge of this court under s. 679(1)(c) of the Criminal Code is properly reviewable by a panel of the court under s. 680 of the Code, which the applicant has not invoked, rather than under the Courts of Justice Act. But more fundamentally, s. 679(1)(c) does not have any application in a case such as this, in which the applicant is seeking to be released on bail while he attempts to appeal to the Supreme Court of Canada from an order of this court that he be detained pending trial. Accordingly, the power in s. 7(5) of the Courts of Justice Act is of no assistance to the applicant to the extent he founds his request for relief on s. 679(1)(c) of the Criminal Code.

[16] While s. 7(5) of the Courts of Justice Act gives this panel the power to review Juriansz J.A.'s decision as it relates to a stay of the October 2020 order, in our view there is no basis to set aside or vary his decision.

(b) Bail pending application for leave to appeal

[17] Justice Martin's order makes no reference to s. 679(1)(c). This is significant because, as part of his November 2020 application before that court, the applicant requested alternative relief -- that the court remand the case to this court to consider the applicability of s. 679(1)(c). Justice Martin did not do so.

[18] Moreover, if the applicant were correct in his submission that Juriansz J.A. erred in finding that s. 679(1)(c) is inapplicable, his avenue of review would not fall under s. 7(5) of the Courts of Justice Act: it would fall under s. 680 of the Criminal Code. Section 680 provides that orders made under s. 679 may be reviewed by a panel "on the direction of the chief justice or acting chief justice of the court of appeal." This is the case even though Juriansz J.A. found that he had no jurisdiction to entertain the s. 679 application: see R. v. Stoltz, [1993] B.C.J. No. 891, 84 C.C.C. (3d) 422 (C.A.), at p. 428 C.C.C.. The prospect of this taking place -- a panel review (under s. 680) of a single judge's decision concerning bail pending leave to appeal (under s. 679(1)(c)) of a previous panel's bail decision (under s. 680) -- demonstrates the untenability of the applicant's position that s. 679(1)(c) has any application in these circumstances.

[19] We agree with Juriansz J.A.'s conclusion that s. 679(1)(c) does not apply in this case. The section provides as follows:

679(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if,

(a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678;

(b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; or

(c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal.

(Emphasis added)

[20] Considered without context, s. 679(1)(c) could be read as encompassing an application for leave to appeal from a court of appeal's denial of bail under s. 680. But, as Juriansz J.A. concluded, that is not what s. 679 is designed to achieve. As with the rest of the section, and consistent with Part XXI (Appeals -- Indictable Offences) as a whole, s. 679(1)(c) applies to bail pending appeal from conviction and/or sentence; not from a bail decision under s. 680.

[21] The applicant essentially asserts a right to bail pending a bail review (or in this case, an application for leave to appeal from the denial of bail). This concept is alien to all of the bail review provisions throughout the Criminal Code. The applicant's suggested application of s. 679(1)(c) puts a single judge (and a reviewing panel) in the untenable position of having to explicitly endorse or reject the underlying detention order that is the subject of proceedings in the Supreme Court of Canada. It will be for that court, not a single judge or panel of this court, to determine whether this court's order under s. 680 should stand; that is, whether the applicant should be released on bail pending his trial.

[22] The applicant's request for a review of the decision under s. 679(1)(c) is dismissed.

(c) Stay of execution on application for leave to appeal

[23] A more challenging question is whether this court may exercise the power in s. 65.1 of the Supreme Court Act to in effect grant bail in a criminal proceeding. Section 65.1 provides that this court may order a stay of proceedings against one of its own judgments when a party has served and filed a notice of application for leave to appeal the judgment at issue. The stay of proceedings sought by the applicant from Juriansz J.A. in this case was the equivalent of a release order. Indeed, the applicant sought, and still seeks, through a stay of the October 2020 order, to restore Goodman J.'s order. But as discussed below, there is a very real practical hurdle to achieving this result.

[24] Relying on the order of Martin J., the applicant submits that his requested relief is achievable through the application of s. 683(3) of the Criminal Code, which provides as follows:

683(3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto.

[25] The applicant contends that this section equips this court with the authority to order a stay of proceedings under s. 65.1 of the Supreme Court Act. That section provides:

65.1(1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.

(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.

(3) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section.

[26] As the applicant observes, this provision has been applied in proceedings under the National Defence Act, R.S.C. 1985, c. N-5 to address the question of bail pending proceedings in the Supreme Court of Canada. Although that Act provides for bail pending the appeal of proceedings in the Court Martial Appeal Court of Canada ("CMAC") (see ss. 248.1 to 248.4), the CMAC "has no jurisdiction to order judicial interim release of a convicted person pending his or her appeal to the Supreme Court of Canada": see R. v. Stillman, [2019] C.M.A.J. No. 1, 2019 CMAC 1, at para. 3; R. v. Royes, [2016] C.M.A.J. No. 1, 2016 CMAC 13, 338 C.C.C. (3d) 183, at paras. 16-17, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 324. Nonetheless, in both of these cases, Bell C.J. applied the well-known criteria in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, to the stay provision under s. 65.1 of the Supreme Court Act to determine whether it was appropriate to stay the imposition of the offender's sentence, thereby granting a remedy similar to judicial interim release. See also T. (M.) v. A. (H.), [1995] 1 S.C.R. 445, [1995] S.C.J. No. 11, at paras. 4-5, in which Sopinka J. relied upon s. 65.1 of the Supreme Court Act to release an applicant in the context of civil contempt, in circumstances where s. 679 of the Criminal Code "arguably" did not apply.

[27] There is nothing in s. 65.1 that expressly excludes a detention order from the category of judgments that may be stayed. However, we agree with the Crown, that given the grounds that justify a detention order pending trial in s. 515(10) of the Criminal Code, it is not particularly clear how the RJR-MacDonald criteria are to be applied, especially the factor of where the balance of convenience may lie.

[28] We need not, however, explore this issue any further. The applicant's request to Juriansz J.A. was to stay this court's October 2020 order, enabling him to be re-released on the terms ordered by Goodman J. However, the applicant is no longer able to meet a critical part of this order.

[29] Justice Goodman released the applicant after this court upheld Parayeski J.'s detention order. Justice Goodman's decision was based on changed circumstances, including a new release plan. As Goodman J. said, at para. 122:

I confess that this decision is a close call. In adding the COVID-19 pandemic into the proposed release plan's "mix", as expressed in the recent jurisprudence, along with some diminution to the strength of the prosecution's case, I am persuaded that the applicant has met his onus. In my opinion, the decidedly restrictive release plan proffered by the applicant will address the Crown's primary and secondary ground concerns.

(Emphasis added)

[30] In addition to naming the applicant's father a surety, Goodman J. also named two further sureties -- ErT and EIT -- in the amount of $300,000: Criminal Code, s. 515(2.1). These sureties were cross-examined at the bail hearing. Their sufficiency was challenged by the Crown. Justice Goodman assessed their evidence in the following way, at para. 81:

While the two principal sureties seemed sincere, I tend to agree with the Crown that both ErT and ElT came across as somewhat naïve in their understanding of the applicant's entire situation. That being said, they testified as to their willingness to assist with the plan, why there is a substantial monetary pledge in support and why they did not present themselves earlier as potential sureties. Overall, I find both ErT and ElT to be well-meaning, credible and up to the challenge of supervising J.A.

(Emphasis added)

[31] We were advised by the parties that ErT and EIT are no longer able to serve as sureties. The applicant has proposed two new sureties in the same amount -- $300,000.

[32] Counsel for the applicant acknowledges that this turn of events is less than ideal; however, she submits that, under s. 65.1 of the Supreme Court Act, this court may impose a stay "on the terms deemed appropriate". We cannot accept this submission. The two named sureties were integral to Goodman J.'s order, as reflected in the passages quoted in paras. 29 and 30, above. Moreover, Goodman J. ordered that the applicant live with ErT and ElT while he was out on bail. The substitution of new sureties in these circumstances goes well beyond the imposition of "terms deemed appropriate" in s. 65.1(1) of the Supreme Court Act. It would involve a significant refashioning of Goodman J.'s order in a decision that he characterized as "a close call".

Conclusion

[33] The application is dismissed.

Application dismissed.

End of Document