Court Information

County of Middlesex

Date: 2016-01-08

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

- And -

Justin Morris

Judicial Officer and Counsel

Before: Justice Wayne G. Rabley

Heard on: December 23rd, 2015

Reasons for Ruling released on: January 8th, 2016

Counsel:

• C. Yih for the Crown
• C. Uwagboe for the accused Justin Morris

RABLEY J.:

A. INTRODUCTION AND THE FACTS

[1] Justin Morris pleaded guilty before me on December 23rd, 2015 to two charges of Breach of Undertaking. He was originally placed on bail on April 3rd, 2015 as a result of offences that arose in another jurisdiction. A term of his Undertaking required him not to have any contact with his children unless he was accompanied by a member of the Children's Aid Society.

[2] On November 7th, 2015, Mr. Morris was found hiding in the closet of the home where his children were residing. He was charged with a Breach of his Undertaking and held for a bail hearing. The following day, he was released on the new charge. The information was endorsed "524 Abandoned". Mr. Morris then remained on bail until November 30th, 2015, when he was once again found breaching the same term. He has been in custody since that time.

[3] The Crown and the Defence have submitted by way of joint submission that I sentence Mr. Morris to a period of incarceration of 60 days in jail. The issue to be determined is what credit should be given to Mr. Morris for his pre-trial custody.

[4] The Crown argues that the accused should be given credit on a one for one basis and relies upon section 719(3) of the Criminal Code and the decision of the Ontario Court of Appeal in the case of R. v. Akintunde, [2015] O.J. No. 4614 (Ont. C.A.).

[5] The Defence argues that it is open to me to exercise my discretion to give the accused one and a half to one for his pre-trial custody because Mr. Morris was not "detained in custody under subsection 524(4) or (8)."

[6] After Mr. Morris was arrested, he adjourned his matter without conducting a show cause hearing. He consented to adjournments requested by counsel and then pleaded guilty while he was still in custody. I am told that Mr. Morris was subject to a "524 arrest" but I note that there is no endorsement of such an arrest on the information and there is no indication that his bail was cancelled at any stage by a Justice. The Defence further argues that because Mr. Morris's bail was not cancelled pursuant to section 524 that he was not "detained" as contemplated by 719(3.1) and therefore that provision does not apply. I agree.

B. RELEVANT STATUTORY PROVISIONS

[7] There has been much debate within the courts about its interpretation since Parliament passed the Truth in Sentencing Act in 2009. Sections 719(3) and 719(3.1) state:

719. (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

[8] Section 524(8) reads:

524. (8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or

(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

C. ANALYSIS

[9] It is clear that Parliament intended to limit pre-trial custody to be given to an accused person who has contravened his bail terms so that he or she receives credit on a one for one basis, unless "the circumstances justify it". Defining what that phrase was intended to mean has been the subject of much discussion and litigation in the Ontario Court of Justice. Ultimately, the issue was decided by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.), where it concluded that offenders should generally be given enhanced credit for two reasons. They were summarized by Justice Tulloch in Akintunde as follows:

"(1) pre-sentence custody is quantitatively more onerous than post-sentence custody because legislative provisions for parole and early release eligibility do not account for pre-sentence custody; and (2) pre-sentence custody is qualitatively more onerous than post-sentence custody because remand centres do not offer the same educational or rehabilitative programs and are often overcrowded."

[10] In Akintunde, the Court of Appeal dealt with the 'mischief' caused by an accused person who simply consents to remands in detention without seeking a bail hearing. Presumably, this will be done by those who recognize that their chances of obtaining bail are not strong and so they sometimes "game the system" by repeatedly delaying any show cause hearing or final determination of their matter.

[11] The Court of Appeal concluded that by:

"allowing an accused who has breached his or her bail conditions or committed an indictable offence while on release to determine his or her own eligibility for enhanced credit would undermine Parliament's objective to keep these individuals in custody for longer periods."

[12] I agree with this conclusion. However, the issue for me to decide is procedurally different from that faced by Justice Barnes in Akintunde where there was a "cancellation" of bail made by a Justice pursuant to section 524(8).

[13] The original Undertaking that Mr. Morris was released upon was never cancelled. In fairness, it is rare for that procedure to take place in our jurisdiction and there seems to be some confusion regarding the procedure regarding the revocation of bail where there has been a subsequent offence.

[14] As a result, when an individual is charged with an offence while he or she is on bail, they are told that there is a '524 arrest' regarding the outstanding matters. Presumably this is done to give notice to the individual that the Crown is seeking a cancellation of their bail. There can be no other logical reason for doing so as neither the police, nor the Crown, can revoke an accused's bail on their own initiative.

[15] Having said that, once notice is given, rarely is there anything done in our courts to further act upon this '524 arrest' and there is no evidence to suggest that anything was done in Mr. Morris's case.

[16] Subsection 524(8) states that a Justice "shall cancel" the release of an individual and "order that the accused be detained in custody" pending a show cause hearing. Therefore, if the Crown makes an application, the presiding Justice must cancel a person's bail if that Justice is satisfied that the accused has (a) contravened or is about to contravene the release terms; or (b) has reasonable grounds to believe that the accused has committed an indictable offence while on bail.

[17] It is the latter category that concerns this Court. In my view, the Crown must do more than simply notify an accused that there has been a '524 arrest'. It must seek to have a judicial order made cancelling an individual's bail. Once that request has been made, the Justice must grant the relief sought by the Crown (a) where the individual is before them; and (b) they are satisfied that the basis for such an application has been met.

[18] It would rarely, if ever, be the case that "reasonable grounds to believe" do not exist when a new offence has been committed while an accused is on bail. A Justice is entitled to rely upon the fact that for there to have been a subsequent charge, reasonable grounds must have existed at the time that the Information was sworn to, otherwise it would not be in existence. It is not necessary to look behind that decision in order to 'second guess' the Justice who has already made this judicial determination. If an accused person wishes to challenge this conclusion and the cancellation of his bail, he is entitled to do so by having a Show Cause Hearing where evidence will be called as contemplated by section 524.

[19] Some cases have spoken about the bifurcation of the bail process. In my view, a Justice is not required to have a formal hearing before cancelling bail if satisfied that there exist reasonable grounds to believe that the accused has committed subsequent indictable offences.

[20] The reason why this is important is because the Crown must seek to cancel the existing form of release if it wishes to deny the possibility of an accused person seeking enhanced credit at the time of his or her sentencing. There are practical reasons for leaving this decision to the discretion of the Crown. For example, the Crown may not wish to have the bail cancelled and may seek to abandon a section 524 arrest as was originally done in Mr. Morris's case. In addition, the Crown may consider the subsequent charge to be a technical one and therefore not worthy of detaining the individual. Another example is where the Crown has knowledge that an accused has been co-operative with the police and may therefore not wish to have his or her bail cancelled. Finally, there may be legal or compassionate reasons for allowing the original bail to remain in place.

[21] These are all factors that a Crown will wrestle with on a daily basis in an often busy bail court. It makes sense that the Crown be allowed to maintain this discretion in order to help efficiently run the Courts. Therefore, although the language of section 524(8) is mandatory, it is my view, that the Crown must take an individual before a Justice and request a cancellation of his or her bail before that Justice does so.

[22] Support can also be found for this proposition in a number of authorities. In R. v. Ibrahim, 2015 MBCA 62 (Man. C.A.), Justice Cameron set out the position of the Manitoba Court of Appeal as follows:

"To summarize, a hearing pursuant to s. 524(8) is initiated by the Crown. It is in the Crown's discretion whether to make an application or not. If an accused does not wish to apply for judicial interim release, the Crown is not prevented from making the application and obtaining the order of detention. The order of detention does not preclude a later application for judicial interim release by the accused. The point is simply that the accused must be ordered to be detained once the prior order of judicial interim release is cancelled. Failure to apply for judicial interim release by the accused cannot operate to bar the Crown from obtaining the order of detention."

[23] The British Columbia Court of Appeal has taken the same position. At paragraph 18 of her Judgment, Madam Justice Bennett said the following:

"The onus lies with the Crown to bring an application to cancel a bail order. The words of the section are clear; enhanced credit is not available once a person is "detained". "Detained" cannot include "arrest" as that would eliminate the onus on the Crown to satisfy a judge or justice, as the case may be, that the accused's conduct met the first part of the test in ss. 524(4) and (8)."

[24] Decisions in the Provincial Court decisions of R. v. Costain, 2014 BCCA 458 and R. v. Xun Wang 2015 BCPC 302 have come to the same conclusion in similar circumstances. As stated by Justice Harris in Wang:

"The onus lies with the Crown to bring an application to cancel a bail order. The words of the section are clear; enhanced credit is not available once a person is "detained". "Detained" cannot include "arrest" as that would eliminate the onus on the Crown to satisfy a judge or justice, as the case may be, that the accused's conduct met the first part of the test in ss. 524(4) and (8)."

[25] More importantly, Justice Edwards of the Ontario Superior Court has recently reviewed this issue in the case of R. v. Hussain, 2015 ONSC 7115, [2015] O.J. No. 6159. The accused in that case was originally charged with offences in Toronto and was then rearrested on new charges. He elected not to seek bail after his arrest and remained in custody for almost three years. Approximately two years into his detention, the Crown "formalized the cancellation of Mr. Hussain's bail for the Toronto charges."

[26] When calculating the appropriate sentence for Mr. Hussain, Justice Edwards stated:

"In my view, applying the principles of Summers to the facts of this case, Mr. Hussain should be entitled to credit at the rate of 1.5:1 from November 20, 2012 until the Crown formalized the cancellation of his bail for the Toronto charges on September 30, 2014. Thereafter, in my view, Mr. Hussain should only receive credit on a 1:1 basis to today's date."

D. APPLICATION TO THE CASE AT BAR

[27] The Crown has argued that even though no application was brought by it, that a Justice should be deemed to have cancelled the bail of Mr. Morris because the language of section 524(8) states that the Justice "shall cancel" the release of the accused. It is the Crown's contention that since the language is mandatory, it matters not whether or not an application was made by it because Mr. Morris was taken before a Justice and the order should have been made.

[28] If I was to accept the Crown's submission, it would mean that Crown discretion to abandon a section 524 application would no longer exist and that Mr. Morris would have been "detained in custody" automatically pursuant to section 524 from the time of his subsequent arrest.

[29] With respect, I do not agree for the reasons previously stated. The British Columbia Court of Appeal in Vinepal is also helpful in its reasoning on this issue. At paragraphs 19 and 20 Madam Justice Bennett stated:

[19] It also cannot mean that the order cancelling the bail and the concomitant detention order are retroactive to the time of the accused's arrest under s. 524. There is nothing in the wording of the statute that would permit a retrospective application of the section. While it appears an accused can circumvent the intention of Parliament by consenting to remain in custody, I agree with the defence that it is not for the Court to read language into the section to repair this legislative gap, particularly since it is penal legislation, which is to be strictly construed. (See R. v. Paré, [1987] 2 S.C.R. 618 at 630.)

[20] If the accused appears to be "gaming the system" by prolonging the cancellation hearing, the Court may move forward with the Crown's application, or a sentencing judge may take the deliberate delay into account when exercising his or her discretion to grant enhanced credit for the portion of the remand time not subject to a statutory prohibition.

[30] I agree with the submission that the Truth in Sentencing Act is penal legislation. In my view, it should be interpreted strictly and where there is ambiguity, the benefit of the doubt should be given to the accused person. However, in addition to general principles regarding interpretation, the cases out of Manitoba, British Columbia and more recently our Superior Court very much support the conclusion that the Crown must make an application to have an accused's bail cancelled if the Crown is seeking to restrict the ability of that individual to seek enhanced credit for pre-trial custody. The logic of those cases is compelling and I propose to follow them.

[31] In Mr. Morris's case, no application to cancel bail was made by the Crown. For reasons given, I find that section 719(3.1) does not apply to limit his ability to receive enhanced credit and the Supreme Court decision in Summers would suggest that in the ordinary course of things that this should be granted to him. I would therefore give Mr. Morris credit on a one and a half to one basis for the time he has been detained in custody to the time of sentencing.

Released: January 8th, 2016.

Justice Wayne G. Rabley