WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Sudbury 13-66

Date: 2013-11-15

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Joseph Mills and Brian Cooper

Before: Justice Richard A. Humphrey

Heard on: November 1, 2013

Reasons for Judgment released on: November 15, 2013

Counsel:

Karen Lische for the Crown

Michael Haraschuk for the accused Joseph Mills

REASONS FOR JUDGMENT

BAIL HEARING (Jurisdiction)

[1] The issue to be determined is whether the Ontario Court of Justice has jurisdiction to entertain the accused's request that an order be made for his interim release, pursuant to section 523(2)(b) of the Criminal Code, pending the ultimate determination of the charges against him which are now before the Superior Court of Justice.

[2] Section 523(2)(b) of the Criminal Code reads; emphasis added:

523. (1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, promise to appear, summons, undertaking or recognizance was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is completed; or

(b) in any other case,

(i) until his trial is completed, and

(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

Where new information charging same offence

(1.1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, a new information, charging the same offence or an included offence, is received, section 507 or 508, as the case may be, does not apply in respect of the new information and the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the new information.

When direct indictment is preferred charging same offence

(1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the indictment.

Order vacating previous order for release or detention

(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 sub section (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.

Provisions applicable to proceedings under subsection (2)

(3) The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in section 469.

[3] The accused, Mr. Mills, was denied bail on January 29th, 2013. His preliminary inquiry was commenced on May 15th, 2013. The accused was committed to stand trial on the 21st day of June 2013. Immediately following the committal, counsel for the accused indicated his intention to seek the accused's release from custody pursuant to subsection 523(2)(b) of the Criminal Code.

[4] The matter was next before the court on July 18th, 2013. At that time, counsel advised the court that the accused did not have his surety in place and was therefore seeking to have the matter put over to accommodate that purpose. Counsel for the Crown indicated that there was now an issue of the court's jurisdiction to hear the matter. This was by reason of the fact that in the meantime, the indictment had been drafted on the 27th day of June 2013 and filed with the Superior Court on July 2nd, 2013. The matter was traversed to November 1st, 2013 for argument. Upon the return date and during the Crown's submissions the court learned that a pre-trial had already been held on July 30, 2013, in the Superior Court of Justice and trial dates were set for February 10-14, 2014.

[5] Counsel on behalf of the accused submits that the Court has jurisdiction to entertain an application for the relief requested, "until his trial has been completed." He argues that had the section intended to restrict this Court's jurisdiction up to the point in time when the indictment is filed with the Superior Court, the legislation ought to have said so. He submits that this Court is in a privileged position to assess the strength of the Crown's case having heard the evidence at the preliminary inquiry.

[6] The Crown argues that as the matter is now before the Superior Court of Justice, this Court has no jurisdiction to entertain the relief sought. Moreover, the Crown argues that the accused has the right to seek review of his detention order pursuant to section 520 of the Criminal Code. She submits that the evidence heard by this court was not the entirety of the evidence against the accused, but merely sufficient evidence to gain the committal. Thus, the argument that this court is in a privileged position is somewhat diminished. Neither counsel were able to provide any case law to the Court dealing precisely with the issue at hand.

[7] Mr. Haraschuk directed the court to a publication entitled "The Law of Bail in Canada," and the heading therein entitled "Bail Reviews". Gary T. Trotter, as he then was, set out the evolution of this section at page 349, where he wrote:

"The power to vacate previous release orders by the justice conducting the preliminary inquiry was first introduced by the Criminal Law Amendment Act 1975. At that time, the section was worded in the following manner;

"s. 457.8(2) Notwithstanding subsection (1),

(b) the justice presiding at the preliminary inquiry in relation to an offence with which an accused is charged, other than an offence mentioned in section 457.7,

may, upon cause being shown, at any time, vacate any order previously made under this Part……"

This version was subsequently amended such that it currently provides:

"s. 523(2) Notwithstanding subsections (1) and (1.2),

(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 on offence listed in section 469…

may, on cause being shown, vacate any order previously made under this Part…"

While the original version of the section permitted the justice to vacate the previous release or detention order at any time during the preliminary inquiry, the current section postpones the exercise of this power until the "completion of the hearing and after the accused has been ordered to stand trial. The emphasis on the period of time following committal for trial addresses a problem that occasionally arose when the justice vacated previous release order after having committed the accused for trial. It was argued that the justice was functus officio in these situations."

[8] The import of the foregoing passage is to explain that the legislation was clearly intended to extend the jurisdiction of a justice to deal with judicial interim release after committal. It does not, however, address the fundamental jurisdictional issue facing this Court in the case at bar.

[9] Mr. Haraschuk argued that a plain reading of section 523(2)(b) would indicate that the Ontario Court of Justice has the jurisdiction to entertain the judicial interim release of an accused person notwithstanding that the matter is now before the Superior Court. He fastens on the words "until his trial has been completed." As the argument goes, the trial has not been completed in the Superior Court, and therefore jurisdiction is reposed in the Ontario Court of Justice for the purpose as requested.

[10] With respect, this Court does not agree. The words "until his trial is completed," are meant to prescribe the duration of any terms of release that may be imposed. They are not intended to confer jurisdiction upon this Court in circumstances where, as in this case, the indictment has been drafted and filed with the Superior Court, and the matter has gone on to a pre-trial and the setting of dates for trial.

[11] To argue otherwise is to blend the jurisdiction of the two Courts such as to create the anomaly of both courts potentially having jurisdiction over the same one accused at the same time. The logical extension of the argument made by the defence is, that even in the midst of a trial in the Superior Court of Justice, the Ontario Court of Justice would have the authority to consider the release of the accused. The interpretation of the section as suggested by the defence, if accepted, would conflict with subsection 520(2)(a). That subsection likewise confers jurisdiction upon the Superior Court of Justice to consider judicial interim release during a trial. That being the case, the defence's interpretation of the subsection would create a jurisdictional conundrum incapable of being logically rationalized.

[12] This Court concludes that there is no ambiguity in the wording of section 523(2)(b) of the Code. If, however, this Court is wrong and one accepts the accused's argument thus creating an inherent ambiguity in the interpretation of the subsection of the kind hereinbefore set out in these reasons, that is to say both courts having jurisdiction over the same accused at the same time, the rules of interpretation mandate, that where a provision in legislation appears to create an incongruity, the legislation should be read in such a way as to correct its understanding to accord with common sense and the intention of the legislature.

[13] The clearest demarcation of the transfer of jurisdiction from the Ontario Court of Justice to the Superior Court of Justice is the point in time when the indictment is filed with the Superior Court of Justice. Until that time, the Ontario Court of Justice has the jurisdiction to entertain the applicant's application and the Superior Court of Justice has jurisdiction only as a supervisory, judicial review court.

[14] For the foregoing reasons, this Court concludes that in the circumstances of this case, it does not now have the jurisdiction to hear the application for the accused's interim release.

Released: November 15, 2013

Signed: Justice Richard A. Humphrey