Court Information

Date: January 20, 2017

Ontario Court of Justice (East Region)

Her Majesty the Queen v. Jake Hopwood

Before: Justice David M. Paciocco – Ottawa, ON

Reasons on the Status of Jake Hopwood's section 523(2) Application

Released: January 20, 2017

Counsel

For the Crown: M. Geigen-Miller

For the Accused, Jake Hopwood: Leo Russomanno

Decision

Paciocco J.

[1] Background and Jurisdiction Issue

[1] I am the trial judge for charges against Mr. Jake Hopwood. During a hiatus in the trial, pending a long adjournment date, Mr. Hopwood, who is in custody, applied before me for bail release pursuant to Criminal Code section 523(2). Believing that a hearing before the trial judge was his only avenue for bail release, I agreed to hear the application, even though it is not optimal for trial judges to conduct bail hearings where potentially prejudicial information not admissible during the trial is apt to be revealed. Mr. Hopwood has been in custody awaiting his trial for close to two years.

[2] Section 523(2), the provision relied upon by the parties to put the case before me, states, in relevant part:

523(2)(a) … [T]he court, judge or justice before whom an accused is being tried, at any time 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 the trial is completed that the court, judge or justice considers to be warranted.

[3] Evidence on Mr. Hopwood's application was heard over parts of two days. During closing submissions it became apparent that Mr. Hopwood has never had a bail hearing. When I examined section 523(2) after court I became concerned about my jurisdiction under that provision, since section 523(2) presents as a bail review provision. It empowers the court, judge or justice to "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." As Mr. Hopwood had never had a bail hearing, it seemed apparent to me from this language that I had no jurisdiction to use section 523(2) to conduct the bail hearing de novo that was underway.

[4] I could not rely upon the agreement between the parties that I had jurisdiction to conduct a section 523(2) hearing, since trite principles of law prevent parties from conferring jurisdiction upon a judge by consent that the judge does not possess in law: R. v. Girioux (1917), 56 S.C.R. 63 at para 9; R. v. Dudley 2009 SCC 58 at par 34.

[5] To be clear, I have no doubt that as a "justice" I have jurisdiction to conduct bail hearings de novo under Criminal Code section 515, including for offenders where I am the sitting trial judge. The immediate problem is that Mr. Hopwood's application has been conducted under section 523(2), not under 515.

[6] Procedural Differences Between Section 523(2) and Section 515

[6] This is not simply a formal quibble. The process that was followed before me in which Mr. Geigen-Miller, for the Crown, responded, is appropriate under a section 523(2), but not under a section 515 hearing. This is because, under section 523(2) it is the applicant, in this case Mr. Hopwood, who bears the burden of proof and who must go first: R. v. General 2007 ONCJ 603 at para. 3. Yet, given the nature of the charges against Mr. Hopwood, if a section 515 application had been brought it would be for the Crown to "show cause" why Mr. Hopwood should not be released, and he would respond.

[7] I therefore recalled the parties, raised my concerns, and asked for submissions on whether the hearing was indeed conducted without jurisdiction, and on what to do about it, if it was.

[8] Mr. Russomanno, for Mr. Hopwood, now agrees that the application should not have been brought under section 523(2). He asks me to convert the hearing into a section 515 application, giving the Crown a fair opportunity to re-open its case and to present any additional evidence it wishes, given that the Crown will now be the applicant and not the respondent, as was initially believed.

[9] Mr. Geigen-Miller asks that I simply adjudicate the bail application that was conducted, bearing in mind that the burden of showing cause is on Mr. Hopwood. He contends that section 523(2) is not confined to bail reviews. He submits that it gives trial judges comprehensive jurisdiction to make any order that could be made under section 515, even where there is no existing order to vacate.

[10] Jurisprudential Analysis of Section 523(2)

[10] Before I address Mr. Geigen-Miller's able arguments directly, it is important to note that my research since this issue arose has uncovered widespread agreement in the authorities that section 523(2) is a bail review mechanism, and not a bail hearing provision. It is true that Justice Trotter does not address this issue directly, as Mr. Geigen-Miller points out, but he clearly considers this to be a bail review provision. He discusses it in his chapter on Bail Reviews under the heading, "Additional 'Review' Provisions": Gary T. Trotter, The Law of Bail in Canada (3rd ed.), (Carswell: Toronto, loose-leaf service, release 2010), at 8.6.

[11] I uncovered no reported cases where bail hearings have been held by a trial judge, where there was not already an order for detention or release on conditions in place. In a number of cases, such as R. v. Arabi 2013 ABQB 79 at para 12, and R. v. Boston 2014 ONSC 5447, section 523 is called a bail review hearing. Indeed, in the latter case Justice Then ruled that a preliminary inquiry judge erred when he applied section 523(2)(b) as if he was conducting a bail hearing and not a bail review hearing. The preliminary inquiry judge's role, Justice Then held, was not to determine whether he would release the accused. His task was to determine whether the applicant had shown that a substantial and material change in the circumstances had occurred.

[12] On the same theme, the trial judge in R. v. Mahmoud 2006 AQPC 59 reviewed the disagreement nationally over the process to be used under section 523(2), with some judges treating the hearing as in the nature of an appeal, and others treating it as a de novo re-hearing, with still others following the blended approach advocated in R. v. Boston, supra. Yet, whatever the procedure they supported, all of the cases cited are bail review decisions.

[13] Crown's Arguments

[13] Even so, Mr. Geigen-Miller was able to marshal impressive arguments in support of his position. His first argument is primarily purposive. He contends that the Criminal Code must be interpreted to grant comprehensive jurisdiction to the trial judge over bail matters, given that once the trial is underway it is not realistic, in many cases, for accused persons to seek release from other judicial officials. Since section 523(2) allows a judge to "make any other order provided for in this Part," that language can be interpreted to implement this purpose by treating it as encompassing orders available after a section 515 hearing.

[14] His second argument is that, even if section 523(2) is primarily a bail review power, a trial judge has jurisdiction under section 523(2) to conduct bail hearings de novo where, as in this case, an accused person consents to an adjournment of their bail hearing of more than 3 days under Criminal Code section 516(1). This is because, in all such cases, the accused is remanded into custody by a justice, and Mr. Geigen-Miller contends that a remand order is an order made under Part XVI of the Criminal Code, triggering section 523 jurisdiction.

[15] As attractive and creative as these arguments may be, I cannot accept them.

[16] Rejection of Crown's Arguments

[16] Dealing with the Crown's second argument first, section 523(2) contemplates the vacating of a prior order. An order granting an adjournment and remanding a person in custody during the period of adjournment is not an order that has to be vacated. It lapses once the period of adjournment expires. This is why we do not speak of a justice making a bail release order after an adjourned bail hearing as having vacated the remand order that was made pending the hearing.

[17] Section 523(2) is also specific in describing the orders it contemplates a trial judge vacating. The trial judge may "vacate any order previously made under this Part for the interim release or detention of the accused" (emphasis added). In my view, a remand in custody is not an order for the detention of the accused. It is an order continuing the detention that was in place upon arrest, pending a hearing to determine whether an order of detention is appropriate. Orders of detention, as opposed to remand orders, are made under section 515. Simply put, under the structure of the Criminal Code, as I see it, an order for detention and a remand in custody are not the same thing.

[18] Meanwhile, Mr. Geigen-Miller's first argument suffers equally from the plain language of section 523(2). The power to "make any other order provided for in this part" is not a self-standing grant of jurisdiction. That power arises after the judge has decided to "vacate any order previously made under this Part for the interim release or detention of the accused." It is true that "and" can be interpreted conjunctively or disjunctively, depending on the context, but the insertion of the word "other," in the order-making power, is clearly a reference back to the order that has been vacated. Put more simply, the natural language of the provision empowers judges to vacate an order and then replace the order they have vacated. It cannot reasonably be read, even purposively, to mean that judges have the power to vacate an order, and a separate self-standing power to make any order available under Part XVI.

[19] Policy Considerations

[19] I am also unpersuaded by the force of the proposition that the purpose of section 523(2) is to give trial judges the power to deal comprehensively with bail issues. As I have already indicated, it is not optimal for trial judges to make bail decisions, because bail decisions often require making the trial judge familiar with potentially prejudicial information about the accused that will not be admissible at the trial. While judges are presumed to be impartial, and are trained to disregard inadmissible information, it is invariably better for judges to be kept separate from bail hearings.

[20] Where the trial has started and circumstances have changed since the original order, it makes sense to compromise and involve the trial judge in the bail review process, since it is often during trial that the landscape is altered from the time of the original order. A common example would be where a judge uses the authority of section 523(2) to revoke bail upon conviction: R. v. Green, [2006] OJ No. 3240. It is prudent to have trial judges make such decisions, given that it is not always feasible to have other tribunals do so.

[21] In effect, the power in section 523(2) was not created to give comprehensive jurisdiction to trial judges. It was recognised as a compromise on the ideal, to make bail reviews feasible during trial so that changes in circumstances that arise during trial that affect bail decisions can be responded to without interrupting the trial to enable bail review proceedings to be conducted before other tribunals.

[22] In his extra-judicial writings, Justice Trotter clearly does not see the bail power of trial judges as something that should be comprehensive. He seeks to impose limits on section 523(2) jurisdiction. Tracing sequential amendments to the provision, he suggests that this power should only be exercised once a case is given to the jury, even where a trial judge is already seized of the trial, citing, with approval, R. v. McCreery (1996), 119 C.C.C. (3d) 561. In other words, even if Mr. Hopwood's application before me had been a bail review, Justice Trotter would question my jurisdiction under section 523(2) given that the evidentiary phase of the trial has not yet commenced: Gary T. Trotter, The Law of Bail in Canada (3rd ed.), supra.

[23] Justice Trotter also observes that until the evidentiary phase of the trial has begun, there are other mechanisms available for judicial review through sections 520 and 521: Gary T. Trotter, The Law of Bail in Canada (3rd ed.), supra. Although he does not put it this way, in effect, his analysis suggests that the network of provisions are intended to limit the jurisdiction of the trial judge, in preference to the use of other available mechanisms.

[24] Conclusion on Jurisdiction

[24] I am therefore persuaded that the section 523(2) hearing I commenced was undertaken without jurisdiction.

[25] As indicated, the immediate problem is that Mr. Hopwood was not applying for a bail review, and section 523(2) is a bail review provision.

[26] Moreover, if Justice Trotter is correct and the section 523(2) power arises once the evidentiary phase of the trial has commenced, then I would not have jurisdiction under section 523(2) because we have not yet launched the evidentiary phase of the trial.

[27] What Follows?

[27] The question remains, what follows?

[28] When the parties were summoned back before me, the possibility was raised whether, on consent or by judicial order, it is possible to convert the section 523(2) hearing into a section 515 application. The proposition included provision for the Crown to present additional evidence and make additional arguments to overcome the error of having the Crown respond during the hearing.

[29] Having considered the matter, it is my view that this option is not legally sound, even if the Crown was prepared to consent to treating the hearing as if it had been a section 515 application.

[30] First, the hearing I conducted was without jurisdiction, and a hearing conducted without jurisdiction cannot be converted by agreement into a different procedure in which I would have jurisdiction.

[31] Second, conducting a hearing without jurisdiction is not simply a procedural error that can be corrected by altering the procedure. A hearing conducted without jurisdiction is a nullity: R. v. Granberg [1973] A.J. No. 19 (Alta. S.C. (A.D.)). Since the hearing that I conducted was a nullity, it cannot be continued and reconstituted as a section 515 matter, even on the consent of the parties.

[32] Trial Judge Involvement in Bail Hearings

[32] This leaves open the possibility of Mr. Hopwood provoking a section 515 application by seeking a bail hearing before me, with the parties agreeing to have the evidence I have already received admitted for the purposes of the new section 515 hearing, to be considered along with any other evidence the parties initiate. Even if the Crown was to consent to proceed this way, having reviewed the authorities in this area, I would decline that jurisdiction.

[33] While trial judges have jurisdiction to conduct bail hearings under section 515 because they are justices within the meaning of that provision, this is not a practice that is to be encouraged. It is preferable to have a justice that is not responsible for the ultimate trial decision making the bail decisions.

[34] I agreed to conduct Mr. Hopwood's hearing out of a mistaken sense of necessity, believing that if I did not hear his bail application it would go unheard. In fact, Mr. Hopwood has another avenue for achieving bail release, through a section 515 application before another justice. This is the procedure he should take.

[35] I do appreciate that I have already heard much of the evidence and argument that would need to be presented in a section 515 hearing. It is nonetheless prudent not to reopen the matter. If that were to occur, still other evidence and arguments would be received, and I would be left to decide the credibility of the evidence before me - something I had not yet turned my mind to after the now aborted section 523(2) hearing.

[36] If Mr. Hopwood does choose to bring a section 515 application, it should be before another justice. If that occurs, there should be nothing to prevent the parties, if they are so minded, from using the record that was already before me, on consent, as the heart of the bail application.

Released at Ottawa, January 20, 2017

Justice David M. Paciocco

Footnote

[1] For this reason, in R. v. Ritcey, [1980] 1 S.C.R. 1077 a conviction rendered by a judge who heard evidence after he had retired was a nullity. In R. v. V.(J.) [2007] ONCA 194 a provincial court trial of an unrepresented accused person who was not advised of his right to elect a preliminary inquiry was a nullity because there had been no proper election to give the provincial court judge jurisdiction.