Court of Appeal for Ontario

Date: 2022-01-25 Docket: C69648

Judges: Tulloch, Pardu and Harvison Young JJ.A.

Between: Her Majesty the Queen, Respondent and Bernard Momprevil, Appellant

Counsel: Bernard Momprevil, self-represented Avene Derwa, for the respondent the Ministry of the Attorney General Brian Whitehead and Jason Kirsh, for the respondent the Ministry of the Solicitor General

Heard: January 13, 2022 via video conference

On appeal from the order of Justice Robert L. Maranger of the Superior Court of Justice dated February 1, 2021.

Reasons for Decision

[1] Mr. Momprevil appeals from the dismissal of his application, alleging that the prosecution amounted to an abuse of process and that the application judge erred in dismissing his habeas corpus application. He argues that his detention was unlawful because although he was originally arrested on three charges, a new information was sworn adding ten more charges. He says because he was never arrested on the new charges, he cannot be detained on them. Further, he did not receive the detention review hearings mandated by s. 525 of the Criminal Code, R.S.C. 1985, c. C-46, after 90 days in custody. The appellant thus argues that his detention was not lawful and he should have been released from custody.

[2] The appellant was initially arrested on December 10, 2019. He was offered a bail hearing on December 13, but requested an adjournment, and was not ready for a bail hearing on shortly following dates. On December 23, 2019 the appellant told the presiding justice: “Well, we’re not going for bail, Your Honour.” The appellant’s lawyer wanted to have discussions with the Crown and to review disclosure so the matter was adjourned from time to time. On January 28, 2020 the appellant indicated that he wanted to swear an affidavit he had composed himself and give it to the Crown, and then go ahead with a bail hearing after the Crown had had a chance to review his affidavit. He was considering either hiring a new lawyer or appearing on his own behalf at a bail hearing with the assistance of duty counsel at some date in the future. He was accordingly scheduled for a bail hearing on February 5, 2020 but requested an adjournment. His counsel got off the record. A bail hearing was set for February 25, 2020, with or without counsel. He asked for and was granted an adjournment on that date. After notice from the custodial institution to the court about a detention review, a detention review was initially scheduled for March 16, 2020 but was postponed. This was at the outset of the COVID pandemic and there was some disruption of court proceedings. A bail hearing was held on April 14 and 16, 2020 and he was ordered detained. The correctional institution made a second request for a detention review on April 29, 2020. This was not scheduled, likely because of the recent bail hearing. The custodial institution did not request a further detention review 90 days after the bail hearing. The appellant’s counsel and the court planned to deal with a detention review on September 4, 2020 as the appellant was already scheduled to be in court that day. The matter was adjourned to September 29, 2020, when the appellant’s counsel withdrew.

[3] The appellant brought an application for habeas corpus challenging his continued detention. The application was heard and dismissed on February 1, 2021. The application judge did not accept the appellant’s arguments regarding the replacement information and concluded that there was no loss of jurisdiction over the appellant. There were other concerns expressed by the appellant; for example, the appellant contends that the police were wrong to arrest him. The application judge was not persuaded that these concerns rose to the level of an abuse of process justifying a stay of proceedings.

[4] He noted that the appellant had been in custody for a lengthy period and that the matter of detention reviews had to some extent fallen through the cracks, given the exigencies of COVID, the resulting closure of the courts, the appellant’s changes of counsel, together with his applications alleging abuse of process and other matters. He observed that a detention review should have been held in the fall of 2020.

[5] The application judge, after considering R. v. Pomfret, 63 Man. R. (2d) 226 (C.A.), and R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, held that the failure to hold a detention review hearing in accordance with s. 525 of the Criminal Code in itself did not render the appellant’s detention unlawful, but that the remedy for that failure was to offer the appellant an immediate detention review. The appellant was not willing to proceed with an immediate review. The matter was adjourned to assignment court on February 5, 2021. The detention review was conducted on February 17, 2021 and the continued detention was held to be justified. On November 1, 2021 following a further bail review, release was denied.

[6] The Crown has opposed release throughout and has indicated that it contemplates bringing dangerous offender proceedings if the accused is convicted.

[7] The trial was set for January 2022, but we are advised that it has now been adjourned, with new counsel for the appellant attempting to set a date for the trial.

[8] We do not accept the appellant’s arguments on appeal.

The replacement information

[9] Firstly, dealing with the replacement information, the appellant was lawfully before the court on the initial information, and was physically present in the court. His presence enabled the presiding judge to deal with the replacement information which was not alleged to be defective: R. v. Wilson, 2015 SKCA 58, at para. 14; R. v. David Lindsay (David-Kevin: Lindsay), 2006 BCCA 150, 265 D.L.R. (4th) 193, at para. 20. As noted in Wilson, at para. 28: “Where an information has been laid and the accused comes before the court by any means, the court has jurisdiction.” The absence of process to compel the presence of the accused on the second information does not render that information a nullity: R. v. Ladouceur, 2013 ONCA 328, 298 C.C.C. (3d) 414, at paras. 22-23.

[10] The Crown relied on s. 523(1.1) at the hearing before the application judge: Criminal Code. This section essentially provides that if a person charged with an offence is the subject of a new information which charges the same offence or an included offence while the accused is subject to an order for detention, then that detention order applies to the new information.

[11] However, the record before us does not clearly establish whether or not the appellant was the subject of any detention order at the time the new information was sworn, although he must have been remanded in custody. We have not had the benefit of full argument on the interpretation of “order for detention” in s. 523(1.1): Criminal Code. In any event, for the reasons already given, we need not embark on that inquiry in this appeal as the presiding justice had jurisdiction over the person of the appellant.

Detention review hearings

[12] Section 525 of the Criminal Code provides that a custodial institution shall apply to a judge to fix a date for a hearing to determine whether or not an accused should be released from custody if the trial has not commenced within 90 days from the date the accused is initially taken before a justice under s. 503, or where there has been a previous detention review order or order detaining the accused, the date of the latter decision. The section stipulates that the person having custody of the detained adult shall make the application immediately after the expiry of the ninety days.

[13] The court must set a hearing date to determine whether the continued detention of the accused is necessary to ensure the attendance of the accused, for the protection or safety of the public, or to maintain public confidence in the administration of justice. New evidence about changed circumstance of an accused, the impact of the passage of time, and any unreasonable delay are relevant factors. A detention review judge may make orders to expedite the trial: Myers, at para. 4.

[14] As noted in Myers, at para. 24, the purpose of s. 525 of the Criminal Code is to prevent accused persons from languishing in pretrial custody, and to require judicial oversight of lengthy pretrial detention at specified intervals. While the Supreme Court indicated that a trial court must act to provide a detention review without delay, there is no suggestion that the detention of an accused automatically becomes unlawful, solely because of the expiry of the 90-day period. As Justice Gary Trotter notes in The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010), at §8:44:

…the mere expiration of the requisite time period does not automatically lead to release by way of habeas corpus….Courts further held that, to obtain relief by way of habeas corpus, the accused must also demonstrate oppressive or unreasonable delay in bringing the matter to court or a delay of such magnitude that one could infer deliberation or design on the part of the custodian. [Footnotes omitted.]

[15] The court must act promptly to set a hearing date for the first available date, although adjournments might sometimes be necessary to promote the interests of justice and the purposes underlying the statutory provision: Trotter, at §8:40.

[16] The court in Myers cannot have been unaware of R. v. Pomfret and in any event did not overrule it. In Pomfret, Huband J.A. observed, at p. 59:

I do not think that the continued detention of an accused becomes unlawful, ipso facto, by virtue of the effluxion of the 90-day period. The accused is held in jail by virtue of the initial warrant of committal. It has no fixed termination date, and does not become spent by the mere passage of time. The keeper of the jail is commanded to keep the accused in custody “until he is delivered by due course of law”. The Criminal Code of Canada contemplates that the warrant for committal will continue extant after the 90-day period has run its course. By the very terms of s. 525, the application for bail review cannot be made until after the 90 days has expired, and it is obvious that the application itself might not be heard for some time thereafter. In short, the warrant for committal does not automatically lapse due to the effluxion of time.

[17] In Pomfret, the court observed that a jailer unwilling to proceed with the required s. 525 hearing could be compelled to proceed by way of mandamus: Criminal Code.

[18] We agree with the reasoning in Pomfret that the detention does not become unlawful solely on the basis that the 90-day period has passed without a detention review.

[19] As the application judge noted, the appellant should have had a detention review hearing by the fall of 2020, well before the return date of his habeas corpus application on February 1, 2021. We agree, however, that the appropriate remedy for this failure was an immediate detention review hearing, an offer the appellant expressly declined. The detention review hearing ultimately took place on February 17, 2021.

[20] The accused has raised other issues about the reasonableness of his arrest and the quality of the investigation. These grounds were not pursued in detail and the application judge did not err in concluding that oblique references to these issues did not justify a stay of proceedings before trial as it was not a matter of the “clearest of cases” justifying a stay for abuse of process: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para 31.

[21] Accordingly, the appeal is dismissed.

“M. Tulloch J.A.” “G. Pardu J.A.” “A. Harvison Young J.A.”