Court of Appeal for Ontario

Date: 2025-03-19
Docket: M55845 (COA-23-CR-0269)
Judge: David M. Paciocco

Parties

Between:
His Majesty the King (Respondent)
and
Dwayne Gordon (Applicant)

Appearances:

• Dwayne Gordon, acting in person
• Chris Rudnicki, appearing as duty counsel
• Erica Whitford, for the respondent

Heard: March 18, 2025

Endorsement

Background

[1] On March 14, 2025, this court overturned Dwayne Gordon’s November 22, 2022 convictions for human trafficking related offences, and ordered a new trial: R. v. Gordon, 2025 ONCA 201. His situation is highly unusual. By the time his appeal was heard, he had already received parole from the seven-year global sentence that was imposed and was on extensive conditions in the community. As a result, he was not required to surrender himself into custody for his appeal and did not do so. However, given that the human trafficking charges are still outstanding, he is subject to arrest. Mr. Gordon has therefore brought an application for judicial release pending trial before this court.

Jurisdiction of the Court

[2] This court’s jurisdiction to determine bail release pending a retrial is provided for in s. 679(7.1) of the Criminal Code: R. v. Ranger, 180 O.A.C. 138 (C.A.), at para. 10. That jurisdiction is exclusive between the time the appeal court makes an order for a new trial and the first appearance in the trial proceedings: Ranger, at para. 10. When it acts, this court is empowered to make bail release orders pending trial: Criminal Code, s. 679(7.1); Ranger, at para. 17. Once the accused appears before the trial court, the trial court has concurrent jurisdiction: R. v. Manasseri, 2017 ONCA 226, at paras. 40-41. Where concurrent jurisdiction exists, this court typically declines jurisdiction in favour of the trial court, which will ordinarily be in a better position to determine bail release: Manasseri, at para. 42. There are a range of reasons for this, including: the superior facility of trial courts to accommodate oral evidence; their scheduling advantages; the review mechanisms available when the order is made at the trial level; the nature of the record; and the potential convenience arising from the geographical proximity of the trial court: Manasseri, at para. 43; R. v. Vincent, 2008 ONCA 76, at paras. 16-17. Therefore, as Brown J.A. suggested, “special circumstances” are required before this court will exercise its jurisdiction where a bail hearing is contested: R. v. D.C., 2019 ONCA 553, at paras. 15-16.

The Crown’s Position

[3] The Crown is opposed both to Mr. Gordon’s release and to the bail release hearing being conducted in this court. Although the Crown concedes this court’s jurisdiction, it asks that I decline jurisdiction and transfer the matter to the Superior Court of Justice.

[4] It was expected that this jurisdictional issue would be resolved at Mr. Gordon’s scheduled judicial release hearing on March 20, 2025. However, the parties appeared before me on March 18, 2025 after the Crown asked me to resolve this question on an urgent basis, since Mr. Gordon is currently in the community without supervision. The Crown learned on March 17, 2025 that now that his convictions have been set aside, Mr. Gordon’s parole conditions are not being enforced and he has been directed not to attend at the half-way house where he had been staying.

The Applicant’s Position

[5] Mr. Gordon argues that it is in the interests of justice for this court to hear his judicial release motion because, for this motion to take place in the Superior Court of Justice, he would have to surrender himself into custody, effectively putting himself in a worse carceral position than he would have been in had he not won his appeal. He will not have the assistance of Mr. Rudnicki, who is acting as appellate duty counsel, if the matter is moved to the trial court. Mr. Gordon proposes that he surrender into custody in this court on March 20, 2025, at the commencement of his hearing, so that an order releasing him from custody can be made.

Further Submissions

[6] The Crown argues that I should decline jurisdiction because the Superior Court is better suited to conduct this contested bail hearing. It has expressed the desire to cross-examine Mr. Gordon’s proposed surety, which can more easily be accommodated before the Superior Court. Although the proposed surety was cross-examined thoroughly in connection with prior applications for release, the Crown has expressed the desire to question her again about potential changes in her personal status, and her ability to supervise Mr. Gordon in the light of witness tampering allegations that arose after she was cross-examined.

[7] The Crown has identified no other advantages to having this matter dealt with in the Superior Court, apart from its preference for having the bail hearing conducted by the trial Crown, who has an intimate familiarity with the file, having conducted the initial bail hearing and the review hearings that Mr. Gordon initiated.

[8] A technical complication with the Crown position is that for the Superior Court to acquire jurisdiction, Mr. Gordon must appear in that court. There is currently no legal process compelling him to do so. Commendably, the Crown does not wish to arrest him to overcome this hurdle, because Mr. Gordon has effectively already served the in-custody portion of the sentence that was imposed and was granted parole. To be clear, I do not understand the Crown position to be that it would be unjust for Mr. Gordon to be incarcerated pending his retrial but that such an outcome should be ordered after a hearing by a judicial official, rather than as the result of Crown action. The Crown therefore asks that in my decision today, I direct Mr. Gordon to attend at the Superior Court to facilitate its jurisdiction. As I understand the Crown position, it will not arrest Mr. Gordon or seek his detention pending the bail hearing. It will do so only if Mr. Gordon “is not able to retain counsel for a lengthy period of time”.

Decision

[9] Given the Crown position, I am persuaded that it is in the interests of justice that I decline jurisdiction. The Crown has expressed a desire to cross-examine the surety and I am satisfied that this request is legitimate, given that a foundation for further cross-examination has been explained. This cross-examination, which the Crown is entitled to insist upon, cannot possibly be accomplished in this court before the scheduled motion hearing and can more easily be accommodated in the trial court.

[10] The Crown’s representation that it will not seek Mr. Gordon’s arrest until he has had reasonable time to retain counsel to conduct the bail hearing is critical to my position. Given that he will not be immediately placed into custody, Mr. Gordon will be in position to avoid any potential injustice from being incarcerated without having had the opportunity to contest its justifiability before a judicial officer.

[11] In reaching this decision I gave no weight to the Crown’s desire to have the trial Crown conduct the bail hearing. As a result of this order, Mr. Gordon will lose the benefit of the Ontario Court of Appeal duty counsel program. In this context, the Crown request for its counsel of preference did not resonate.

[12] I decline jurisdiction. I direct Mr. Gordon to appear on Friday, March 21, 2025, at 9:00 a.m. at Court 7-1, Toronto Superior Court of Justice (practice court), located at 330 University Ave., Toronto.

“David M. Paciocco”