ONTARIO COURT OF JUSTICE DATE: 2023 02 09 COURT FILE No.: Guelph 20-1183,22-46102458
BETWEEN:
HIS MAJESTY THE KING
— AND —
Drazen KOVACEVIC
Before: Justice of the Peace M A Cuthbertson
Heard on: 2 November 2022 Reasons for Judgment released on: 9 February 2023
Counsel: S Di Martino, counsel for the Crown R Marchak, counsel for the accused Drazen Kovacevic
JUSTICE OF THE PEACE CUTHBERTSON:
Overview
[1] This is a matter which came before me on 2 November 2022, originally as a contested bail hearing but which morphed into a recommended release by the Crown. Mr Kovacevic was released on a release order with a promise to pay and conditions.
[2] What made this an interesting case were the prior judicial release orders and police undertakings which the defendant was under after his initial charges were laid on 13 February 2020.
[3] The issue on 2 November 2022 was how earlier arrest warrants with endorsements for possible release and subsequent police undertakings and/or judicial release orders may have affected the application of the ‘Ladder Principle’ set out in the Criminal Code, RSC 1985, c-46 (the “Code”) in sections 515(1) to (2.01). I invited both sides to submit case law and any further submissions on the issues. I did not receive any case law (apparently none exists) but the Crown did submit a legal opinion which raised additional issues that I will address in this decision.
History of the Charges, Arrest Warrants and Subsequent Bail (Police and Judicial) Orders
[4] On 13 February 2020, the defendant was arrested on charges of mischief (s. 430(4)) and 2 counts of breach probation (s. 733.1(1)) under the Code. He was released at a bail hearing (recommended release) on a release order with a promise to pay and conditions, one of which was not to contact the complainant.
[5] On 24 April 2020, he was charged with 2 counts of failing to comply with the release order. An endorsed arrest warrant was issued for his arrest. The endorsement of an arrest warrant permits the police to release the defendant on police bail rather than bring the defendant before a justice. On 30 April 2020, he was charged with historic offences (see Information 20-1183) of making sexually explicit material available to a person under 18 years of age (s. 171.1(1)(a)), assault (s. 266), sexual assault (s. 271) X 2, criminal harassment (s. 264(1)) and a recent charge of fail to comply with release order (s. 145(5)(a)). An endorsed arrest warrant was issued. It was executed and he was released on a police undertaking on 1 May 2020. This undertaking did not include the charges on the release order of 13 Feb 2020.
[6] Then, Mr Kovacevic was charged on 14 and 16 June 2020 with two counts of failing to comply with a condition of his undertaking (s.145(4)(a)) and two counts of failing to comply with a condition of his release order other than a condition to attend court (s.145(5)(a)). An endorsed arrest warrant was issued.
[7] On 9 July 2020, he was arrested on the outstanding warrant and held for a bail hearing. On 4 August 2020, a bail hearing was held. The Crown sought and was granted an application under s. 524 to revoke the earlier forms of release (both judicial and police) and then recommended release to the presiding justice. Mr Kovacevic was then placed on a release order on all of the above charges with a promise to pay and conditions, including not to contact the complainants.
[8] On 1 June 2021, the defendant allegedly did not attend court and an endorsed arrest warrant was issued on all charges on the release order of 4 August 2020. He was also charged with failing to attend court (s.145(3)). On 23 June 2021, Mr Kovacevic was arrested on the strength of the warrant and released on a police undertaking with conditions, on all the charges on the release order and the fail to attend court charge.
[9] On 12 October 2021, Mr Kovacevic allegedly failed to attend court and an endorsed bench warrant for all of the charges on the 4 August 2020 release order was issued. In addition, he was subsequently charged with failing to attend court (s.145(2)(b)). The warrant was executed on 10 November 2021 and he was released on a police undertaking on all of the charges on the release order and the new fail to attend court charge.
[10] On 14 February 2022, most charges against Mr Kovacevic were completed in front of a judge. The only remaining charges were those on Information 20 -1183 (see above).
[11] On 2 November 2022, the defendant appeared before me in the bail court on new charges of failing to comply with an undertaking (s.145(4)(a)) and breach probation (s.733.1(1)) both of which allegedly involved complainants in the earlier charges set out in Information 20-1183. Ms Di Martino, the Crown, applied under s. 524 to revoke the earlier form(s) of release. I granted the application. She then recommended release on all of the charges on Information 20-1183 as well as the two new charges. I ordered Mr Kovacevic to be released on a release order with a promise to pay and conditions.
Issues
[12] The issues raised include: (1) How is the Ladder Principle to be applied when police bail is issued after the execution of an endorsed warrant when a judicial release order is already in place? (2) Are there mens rea implications where an appearance notice, undertaking or summons is issued on the same charges as a judicial release order? If the answer is yes, what option exists to avoid confusion in police bail or a summons where there are prior judicial release or police bail orders? (3) What arrest warrants can be endorsed? (4) Addressing warrants in Case Management Court. (5) The authority of police to release on an endorsed warrant.
Application of the Ladder Principle
How is the Ladder Principle to be applied when police bail is issued after the execution of an endorsed warrant when a judicial release order is already in place?
[13] I start the analysis of this issue with a self-reminder on statutory interpretation. The Ontario Court of Appeal, again set out the standard in its recent decision in R v. Pahal, 2023 ONCA 13. The Court stated:
[38] The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting from Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. See also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 18; and Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306.
[14] Part XVI of the Code titled: “Compelling Appearance of Accused Before a Justice and Interim Release” is an interwoven and complex group of sections which set out how Part XVI is to be applied. It provides the statutory basis for my analysis.
[15] The ‘Ladder Principle’ is set out in ss. 515(1) to (2.01) of the Code (see also R v Antic, 2017 SCC 27 at para 44 and R v Zora, 2020 SCC 14 at para 21). Essentially, when a justice is considering judicial interim release in Crown onus matters, the justice must consider each step on the Ladder and release on the lowest ‘Step’ which addresses the relevant primary, secondary or tertiary concerns (see s. 515(10)(a-c)). If the court decides to release, an appropriate step on the ladder must be decided upon and the Court must then impose only the conditions necessary to address the relevant concerns under s. 515(10). Worth noting too, is the Ladder Principle only applies to judicial interim release not police bail, which includes either an appearance notice or undertaking. As well, nothing in the Ladder Principle requires the Crown to always seek a higher step on the ladder when recommending release rather the Crown has considerable discretion, in this regard. In Mr Kovacevic’s matters of 2 November 2022, the Crown recommended a release order with a promise to pay and conditions which was the same form of release that he had been released on after earlier bail hearings.
[16] At various times, Mr Kovacevic was on a judicial release order and also had been put on an undertaking with conditions on the same charges by police after he was arrested on an endorsed warrant (I will discuss more about endorsed warrants below). On 2 November 2022, the defendant’s counsel argued that I should release on the lowest step of the Ladder since the undertaking was the most recent form of release thereby presumably superceding the judicial release order. With respect, I disagree.
[17] Section 523(1) sets out how long a summons, appearance notice, undertaking or release order remains in effect. It states:
Period for which appearance notice, etc., continues in force
523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part, the appearance notice, summons, undertaking or release order 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, summons, undertaking or release order 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.
[18] There are but a few ways under the Code that a judicial release order can be set aside or changed. They include:
a. Sections 520 and 521 allow for judicial review of release orders of the Ontario Court of Justice by the Superior Court of Justice.
b. Sections 523(2) allows a judge or justice, under certain circumstances, to vacate a release order and make any other order under Part XVI.
c. Section 523.1 allows, under certain circumstances, for the police to issue the person with an appearance notice with a date for a judicial referral hearing under this section (see Gary Trotter, The Law of Bail in Canada, 3rd ed., Thomson Reuters, section 2:14 at page 94). At the hearing, the presiding judicial officer has several options, including the cancelling of a summons, appearance notice, undertaking or release order.
d. When a defendant is arrested and brought before a justice in a bail court the prosecutor may apply under s. 524 to have any summons, appearance notice, undertaking or release order vacated. If the application is granted, the justice will then proceed with hearing the matter and will decide to either detain or make a release order to release the defendant.
[19] None of the above options allow the police to change the status of a release order. Only a judicial officer can cancel or alter a judicial release order (or for that matter a summons, appearance notice or undertaking).
[20] Therefore, on 2 November 2022 when Mr Kovacevic appeared before me, he was on both the judicial release order from 4 August 2020 on the charges on Information 20-1183 and on an undertaking from 10 November 2021. The charges on that undertaking included not only the new fail to attend court (s.145(3)) charge but ALL of his earlier charges which were on the release order. If he was confused as to what order he had to follow, I would not be surprised.
[21] As I will discuss below, the structure of the undertaking, especially in regards of all the earlier charges from the release order was, in my view, problematic.
[22] Pursuant to s. 524, I revoked both the outstanding judicial release order and undertaking on 2 November 2022. The question remains as to what I should have considered during the bail hearing had the Crown not applied for revocation of those earlier orders and simply sought a bail decision on the new charges. The answer lies in the wording of the subsections of s. 515(10), which states:
Justification for detention in custody
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
(NB: Bold emphasis added)
[23] In my view, Parliament intended with its inclusion in s. 515 (10)(b-c) of the wording ‘having regard to all the circumstances’ to provide broad latitude as to what a judicial officer may consider, including any summons, police bail or judicial release orders that a defendant may have been bound by, to decide the bail issues. In the case at bar, the Crown had expressed concerns on the secondary grounds under s. 515(10)(b).
[24] In summary then, I conclude that summonses and police bail issued on the same charges as on a prior judicial release order do not affect the operation of the Ladder Principle. However, I recognize that in such circumstances the Crown may choose to seek a higher step on the ladder, under the Ladder Principle. In Mr Kovacevic’s matter, the Crown did not seek to step ‘up the ladder’ when I released him. It was a joint submission and I saw no reason to interfere with that position.
Mens Rea Implications and Avoiding Confusion
Are there mens rea implications where an appearance notice, undertaking or summons is issued on the same charges as a judicial release order? If the answer is yes, what option exists to avoid confusion in police bail or a summons where there are prior judicial release or police bail orders?
[25] Police officers have limited options as to what they can order a defendant to do or not do when they release a person. If an officer releases the person on an appearance notice (see s. 500 below) they can only order a defendant to attend for a s. 523.1 judicial referral hearing, and/or to attend for the purposes of the Identification of Criminals Act, R.S.C. 1985, cI-1, in addition to attending court on a specific date.
[26] Where a police officer releases a defendant on an undertaking they have considerably more discretion to order a promise to pay of a maximum of $500 (or cash bail of $500 in certain circumstances) and other conditions (see s. 501 below), in addition to attending court on a specific date.
[27] A judicial officer who releases a defendant on a release order has very broad powers (see s. 515(2)) to order very significant amounts as a promise to pay (or for cash bail in some circumstances) and under s. 515(4) to (4.3) to order a very sweeping array of conditions, in addition to attending court on a specific date.
[28] When a release order is issued by a justice, the court makes a decision after having received input on terms and conditions from the Crown and Defence or Duty Counsel. This is unlikely to be the case when a person is being released on police bail.
[29] Looking at the situation from a defendant’s perspective, it may be confusing when they were ordered to follow conditions on a judicial release order and then are on potentially lesser conditions when released later on the same charges on police bail or when a summons is issued. There may have been a significant promise to pay or sureties ordered on the release order.
[30] In Mr Kovacevic’s case, while no sureties were ordered, he was on an earlier release order with a promise to pay of $2,000. Then, when later released on an undertaking on the same charges plus a new fail to attend court charge, there was no promise to pay. It does not take much imagination to see the possible mens rea implications at trial of a defendant charged with failing to comply with a release order under s.145(5)(a) when they thought that they only had to comply with the subsequently issued police undertaking on the same charges.
[31] In my view, this incongruous situation may exist due to the somewhat imprecise language used by Parliament, in sections 498, 499, 500, 501 and 509(see below), which are the sections dealing with the authority for police bail or for the police to request a summons be issued by a judicial officer. Those sections state, in part, the following:
Release from custody – arrest without warrant
498 (1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if
(a) the peace officer intends to compel the person’s appearance by way of summons;
(b) the peace officer issues an appearance notice to the person; or
(c) the person gives an undertaking to the peace officer.
Release from custody – arrest with warrant
499 If a person who has been arrested with a warrant by a peace officer is taken into custody for an offence other than one listed in section 469 and the warrant has been endorsed by a justice under subsection 507(6), a peace officer may release the person, if
(a) the peace officer issues an appearance notice to the person; or
(b) the person gives an undertaking to the peace officer.
Contents of appearance notice
500 (1) An appearance notice shall
(a) set out the name, date of birth and contact information of the accused;
(b) set out the substance of the offence that the accused is alleged to have committed;
(c) require the accused to attend court at a time and place to be stated in the notice and to attend afterwards as required by the court; and
(d) indicate if the accused is required to appear at a judicial referral hearing under section 523.1 for a failure under section 496.
Contents of undertaking
501 (1) An undertaking under paragraph 498(1)(c), 499(b) or 503(1.1)(b) must set out
(a) the name, date of birth and contact information of the accused;
(b) the substance of the offence that the accused is alleged to have committed; and
(c) a summary of subsections 145(4) and (6), sections 512 and 512.2 and subsection 524(4).
Mandatory conditions
(2) The undertaking must contain a condition that the accused attend court at the time and place stated in the undertaking and to attend afterwards as required by the court.
Summons
509 (1) A summons issued under this Part shall
(a) be directed to the accused;
(b) set out briefly the offence in respect of which the accused is charged; and
(c) require the accused to attend court at a time and place to be stated therein and to attend thereafter as required by the court in order to be dealt with according to law.
What option exists to avoid confusion on police bail where there are prior releases?
[32] I remain mindful of the principles of statutory interpretation set out in Pahal. As I held above, the issuance by police of a new appearance notice or undertaking or the seeking of a summons on new charges does not affect any earlier, police bail, release order or summons. As such, when the police choose to release on an appearance notice, undertaking or seek a summons they need to set a court return date on the prior orders without leaving the impression that related terms and conditions on those orders have been altered or vacated. If there are new charges, they need to be clearly shown on the appearance notice, undertaking or summons. If the police decide to release on an undertaking then any appropriate condition(s) for new charge(s) must be added. In my view, a re-organization of the information on appearance notices, undertakings and summonses will clarify what orders and conditions a defendant must follow on all new and prior charges. It will also significantly address the mens rea issue.
[33] I use as my example, how an undertaking for a defendant with a new charge or charges could be worded, when the defendant also has been arrested on prior police bail, judicial release orders or summonses.
[34] Here is a possible revised structure which could be used in Section 3 of an Undertaking:
- CHARGE(S)/ACCUSATION(S): LIST CHARGE AND SECTION #
a) New Charge(s)
- (list new charge(s) here)
Important Note to Defendant:
See Section 5 (Additional Conditions/Autres Conditions) below for your new conditions on this/these charge(s).
b) Prior Charges
You have other charges which are detailed on the following previously made order(s):
[ ] Appearance Notice issued on (date here) includes the following charges:
- (list charge(s) here)
[ ] Undertaking issued on (date here) includes the following charge(s):
- (list charge(s) here)
[ ] Release Order issued on (date here) includes the following charge(s):
- (list charge(s) here)
[ ] Summons issued on (date here) includes the following charge(s):
- (list charge(s) here)
Important Notes to Defendant:
Each previously made order is still of force and effect and you must comply with each order and any conditions included, and
See Section 4 (Mandatory Condition / Conditions Obligatoire) below for your new court date on all of your charges including those on the previously made orders indicated above.
[35] Where there are no new charges on an appearance notice or summons then a) New Charges should be deleted. A police officer need only check off the appropriate prior order(s) and fill in the dates and charges (frequently on an arrest warrant) of any prior order. There may be multiple entries for a specific type of prior release if the defendant is, for example, on multiple undertakings. The defendant should then initial each appropriate order on the new undertaking, thereby acknowledging the continuing existence of the charges on the prior order(s). As noted in the preceding paragraph. In the Undertaking’s section 5 (Titled: ADDITIONAL CONDITIONS/AUTRES CONDITIONS) the releasing Police Officer should only set conditions relevant to the new fail to attend charge as the earlier other orders cover the relevant conditions for the charges on the other orders. As well, the new court date for all of the charges on all the types of releases applicable are entered in section 4.(Titled: MANDATORY CONDITIONS/ CONDITION OBLIGATOIRE).
Endorsable Warrants
What warrants can be endorsed?
[36] The Criminal Code sets out the warrants that can be endorsed by a judicial officer in s. 507(6), which states:
507 (6) A justice who issues a warrant under this section or section 508, 512, 512.1 or 512.2 may, unless the offence is one listed in section 469, authorize the release of the accused under section 499 by making an endorsement on the warrant in Form 29.
[37] Section 508, in part, states:
508 (1) A justice who receives an information laid before him under section 505 shall
(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so;
(b) if the justice considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice or undertaking or to an included or other offence,
(i) confirm the appearance notice or undertaking and endorse the information accordingly, or
(ii) cancel the appearance notice or undertaking and issue, in accordance with section 507, either a summons or a warrant for the arrest of the accused to compel the accused to attend before the justice or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice or undertaking has been cancelled; and
(c) if the justice considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice or undertaking and cause the accused to be immediately notified of the cancellation.
[38] Section 508(1) applies when a justice of the peace is receiving an Information with new charges and the police have already released the person on an appearance notice or undertaking. Under s. 508(1)(b)(ii), the justice of the peace may cancel the appearance notice or undertaking and issue a summons or warrant. If a warrant is issued, s. 507(6) then allows the warrant to be endorsed at the discretion of the justice of the peace. This makes sense when one considers that the person had already been released by the police.
[39] Sections 512.1 and 512.2 allow a justice of the peace to issue a warrant for the arrest of a person who is on a summons, appearance notice or undertaking when they have failed to attend at the police station to get their fingerprints taken, as ordered to do so. If the justice of the peace issues a warrant, under s. 507(6) they may endorse it so the police may release. Once again, this makes sense in the overall context of Part XVI, as the person had already been released on an appearance notice or undertaking or issued a summons to attend court.
[40] Section 512 states:
Certain actions not to preclude issue of warrant
512 (1) A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that
(a) an appearance notice or undertaking has been confirmed or cancelled under subsection 508(1);
(b) a summons has previously been issued under subsection 507(4); or
(c) the accused has been released without conditions or with the intention of compelling their appearance by way of summons.
Warrant in default of appearance
(2) Where
(a) service of a summons is proved and the accused fails to attend court in accordance with the summons,
(b) an appearance notice or undertaking has been confirmed under subsection 508(1) and the accused fails to attend court in accordance with it in order to be dealt with according to law, or
(c) it appears that a summons cannot be served because the accused is evading service,
a justice may issue a warrant for the arrest of the accused.
[41] This is a section that needs some analysis. The easier of the two subsections to consider is 512(2), so I will discuss it first.
[42] Section 512(2) considers when a summons has been issued or the defendant is already on police bail. A typical example of when 512(2) is used is during a case management court and the defendant has not attended court as ordered. This warrant may be endorsed by the presiding justice for possible release by the police. Taking into account Part XVI, this makes sense since the defendant had been earlier released by the police or a summons had been issued for the defendant.
The Non-Endorsable Warrant (Section 512.3)
Section 512.3 – The warrant which cannot be endorsed
[43] Prior to discussing other additional warrants, it is now appropriate to review the warrant which cannot be endorsed for release, to illustrate how Parliament has structured the use of warrants in a harmonious fashion within Part XVI.
[44] Section 512.3 states:
Warrant to appear under section 524
512.3 If a justice is satisfied that there are reasonable grounds to believe that an accused has contravened or is about to contravene any summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused or has committed an indictable offence while being subject to any summons, appearance notice, undertaking or release order, the justice may issue a warrant for the purpose of taking them before a justice under section 524.
[45] This section provides the authority for a justice to issue a warrant to bring a defendant on any form of release before the court for a s. 524 revocation hearing. Parliament could have added this warrant to those which could be endorsed in s. 507(6) but it did not. The clear message is that there are certain situations when a defendant on any form of release must be brought before a justice.
[46] This section contains the only mention of a release order in any of the warrant sections. In my view that strongly suggests that Parliament’s intent is that a defendant on a judicial release order must be brought before a justice for a s. 524 hearing, upon being arrested. That is not surprising when I consider where reasonable grounds exist that a defendant is about to or has contravened a release order or committed an indictable offence then the issue of judicial interim release needs to be reviewed.
The 'Public Interest' Warrant (Section 512(1))
Section 512(1) – The ‘Public Interest’ Warrant
[47] Section 512(1) involves a ‘public interest’ test before this kind of warrant can be issued, as a summons is the first option. The phrase ‘public interest’ is not defined in Part XVI, however, there have been decisions up to the Ontario Court of Appeal which have ruled on the meaning of public interest and how it should be applied when a judicial officer is deciding to issue a warrant. I will discuss these cases below.
[48] It is often thought that s. 512(1) has two major uses when warrants are being contemplated.
As a 'First Instance Warrant'
Section 512(1) – as a ‘First Instance Warrant’
[49] Section 507 states, in part:
507 (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,
(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and
(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence.
(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.
[50] A section 512(1) is the warrant used under s. 507(4). In this application, the 512(1) warrant is frequently called a ‘First Instance Warrant’. If the defendant cannot be found or is evading the police, courts frequently hold that it is in the public interest to issue this warrant to bring the defendant before the courts to answer to the charges.
[51] Worth reading on the subject of the ‘public interest’ are R v Gougeon, [1980] O.J. No. 1342 (C.A), at paras 38-40; R v Hartmann, [1986] O.J. No. 1097 (H.C) at page 9; R v Horton, [2002] O.J. No. 1218 (SCJ) at paras 14-22 and R v Verdon, [2010 O.J. No 4125 (SCJ) at paras 6-27. As I understand these cases, they stand for the principle that a justice has a ‘wide and unfettered discretion’ to issue a warrant under this section, if the court makes a determination in the context of the case that it is in the public interest to issue a warrant instead of a summons. This frequently applies where the court has lost jurisdiction over the person but in rare circumstances may have other uses as well. I discuss such circumstances below.
As a 'Warrant of Last Resort'
Section 512(1) – as a ‘Warrant of Last Resort’
[52] There are infrequent situations where there is no defined type of warrant available for the circumstances but nonetheless a warrant is necessary in the public interest. It is in these unusual circumstances where s. 512(1) becomes the ‘Warrant of Last Resort’ based on its deliberately broad use of the words in the ‘public interest’.
[53] The cases of Gougeon, Hartmann, Horton and Verdon, all dealt with circumstances where the only warrant available to compel the defendant to appear before the court was through the use of what is now a s. 512(1) warrant.
[54] Worth noting in these cases, none of the defendants was on a judicial release order (formerly a judicial recognizance) when the issue arose before the Court. They were either detained in custody or were on police bail. Section 512(1) warrants were issued for all of the defendants but none was endorsed by the Court for possible release by the police. All of the defendants were brought directly before a justice.
[55] Nothing in these decisions stands for the proposition that a judicial finding that a warrant is necessary in the public interest automatically applies to the warrant being endorsed. In fact, those cases did not require such an analysis as the defendants were brought directly before a justice.
[56] In my view, endorsing a s. 512(1) is a separate decision requiring its own analysis. I come to this conclusion, in part, from Justice Watt’s statements in Hartmann (beginning about two thirds of the way down page 9). The Court held:
It has earlier been observed that the phrase "public interest" is neither in terms defined nor described by reference to the factors to be considered in its determination. Indeed, it is a phrase that, in every event, defies precise description and leaves to the presiding justice a wide and unfettered discretion: see, for example, R. v. Morenstein (1977), 40 C.C.C. (2d) 131 (Ont. C.A)., Wilson J.A. in Chambers); Ex parte Chung et al. (1975), 26 C.C.C. (2d) at p. 498, [1975] 5 W.W.R. 561 (B. C. S. C.); affirmed , 26 C.C.C. (2d) 497, [1976] 1 W.W.R. 453 (B.C.C.A.), and Re Powers and The Queen (1972), 9 C.C.C. (2d) 533, 20 C. R. N. S. 23 (Ont. H. C.J.). Neither the compendious phrase "the public interest" nor its near-relative "the interests of justice" are necessarily equivalent to "the interests of the accused". Whilst the interests of the accused are, perforce, an important consideration in a determination of "the public interest" and "the interests of justice", it is apposite to here recall the words of Lord Goddard C.J. in R. v. Grondkowski, [1946] K.B. 369 at p. 372, where he said:
The judge must consider the interests of justice as well as the interests of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interests of the prisoners.
Justice Hackland also referenced this passage in Verdon at para 26.
[57] Obviously, the interest of the accused person is to have the warrant endorsed so that the police can consider releasing the defendant. The public interest and the interests of justice are in many circumstances diametrically opposed to the interests of the accused. The public interest and interests of justice require a contextual analysis that includes the application of the authorities in Part XVI. That analysis should include whether there are new concerns raised by the defendant’s alleged actions under sections 515(10)(a-c), especially where there was a prior judicial release order. Beyond the issue of court attendance under s. 515(10)(a), any s. 515(10)(b and c) concerns can only be explored “having regard to all the circumstances” if the defendant is brought before a justice, thereby engaging the Crown and Defence or Duty counsel. As I have discussed earlier, part of the analysis should be Parliament’s intent as demonstrated by s. 512.3, that defendants on judicial release orders should be brought before a bail justice for a s. 524 hearing.
[58] Here are but a few questions which quickly come to mind when a judicial officer is considering the endorsement of a s. 512(1) warrant – Are there concerns about public safety or the safety of a complainant? Are there concerns about the attendance at court of the defendant? Are the charges against the defendant serious? Do the charges involve weapons? Do the charges involve violence, including intimate partner violence? What convictions does the defendant have, if any? What outstanding charges do they have, not only locally, but elsewhere? Was supervision by a bail supervision program or a surety ordered as part of a release order?
[59] Where a prior release order exists and the justice decides to use a s. 512(1) warrant instead of a s. 512.3 warrant then, in my view, endorsement of that warrant would be the exception not the rule. I come to that conclusion as the necessary ‘public interest and the interests of justice’ analysis would likely lead me to the realization that the defendant must be brought back before the court so the Crown and Defence/Duty counsel can make submissions on possible release and a judicial decision can be made. I note that a decision to endorse in these circumstances may be reviewable, including by way of an application for an order of mandamus.
The Covid-19 Pandemic Exception
The Covid 19 Pandemic – the exception
[60] The Covid 19 Pandemic was according to the experts a once in one hundred year event. We can only hope that statement is correct. The pandemic caused radical changes to governments, businesses, institutions, organizations and to each and every one of us. The courts and our practices were deeply affected.
[61] In R v Chevalier, [2020] O.J. No. 4862, Justice Green summarized the impact by stating:
[1] This year a pandemic (COVID-19) created an international health crisis. Governments around the world are combatting the spread of this highly contagious virus by instituting social distancing measures, utilizing masks and sanitizers and temporarily shutting down places accessible to the public to prevent people from congregating in these settings. The Government of Ontario responded to the crisis by closing most businesses and facilities including the unprecedented closure of all the courthouses.
[2] As a result of the closure of the courthouses, the criminal justice system came to a virtual standstill for all persons who were out of custody awaiting their matters to be heard. Anyone who was issued a release document compelling them to attend the courthouse for fingerprinting and a court appearance were not able to fulfill their legal obligations during this period of time. Aside from cases involving inmates, other defendants were adjourned to presumptive return dates on a publicly available timetable. In order to maintain jurisdiction over the alleged offender and the offences, courts issued bench warrants to be held with discretion that were returnable on the presumptive dates.
[62] The s. 512(1) warrant became the preferred warrant to maintain jurisdiction over defendants during the height of the pandemic impact on society. The public interest, interests of justice and the interests of the accused persons merged to justify endorsements on these warrants to keep people separated and out of jails where the spread of Covid-19 was a major public health concern. In these circumstances, this application of the s. 512(1) warrant truly defined it as the ‘Warrant of Last Resort’, as it was the only warrant option that addressed all of these interests. Defendants were released frequently by police across Ontario where an endorsed s. 512(1) warrant was executed. This practice served the public interest well, in my opinion.
[63] Mr Kovacevic also was released on endorsed warrants during his arrests in the pandemic period despite being on prior forms of releases including judicial release orders. In my view, it was the right thing to do in 2020 and 2021, in all the circumstances. That was then but as I write this in early 2023, circumstances have changed. Covid-19 remains among us but thanks to medical science creating new vaccines and natural immunities of those who recovered from Covid-19, society is in a much safer place. As a result, the efficacy of endorsed s. 512(1) warrants, especially where a judicial release order exists, in my view, needs to be revisited.
Addressing Warrants in Case Management Courts
Addressing Warrants in Case Management Courts
[64] Almost every case management court docket has defendants who do not appear to address their matters. The Crown of the day will seek either a summons or a warrant (possibly with discretion) to compel the appearance of the missing defendant. The Crown also may ask for a warrant to be endorsed or not endorsed. The decision rests with the presiding justice.
[65] In light of my above analysis, it would be helpful when a warrant is being sought by the Crown that they specify the section and subsections for the exact kind of warrant they are seeking the court to issue. If a s. 512(1) warrant instead of a summons is being sought by the Crown then submissions on the public interest should follow.
[66] In turn, whatever the justice decides, I suggest the court be very clear for the record, as to the section and subsections under which they are issuing the warrant. If it is a s. 512(1) warrant then it would be helpful for the justice to state their decision on the public interest submissions of the Crown regarding a summons versus a warrant. As well, a statement as to whether the warrant is to be endorsed is appropriate.
[67] I am mindful that the clerk who is in court that day may not be the person who endorses the Information or types the warrant. The courtroom clerk needs to capture exactly what the court orders and ensure it is added to the Information accurately.
[68] Similarly, it may not be the same justice of the peace who is presiding who will actually sign the warrant. Specific details on the endorsement page of the Information will assist the justice of the peace who is signing the warrant to follow the presiding justice’s order.
Police Authority to Release on an Endorsed Warrant
The authority of police to release on an endorsed warrant.
[69] It may be that some police officers are under the assumption that if a judicial officer endorses a warrant then they must release the defendant when arrested. If that perception exists, it is a misunderstanding. Section 499 (see above) states if ‘the warrant has been endorsed by a justice under subsection 507(6), a peace officer may release the person if’ the police issue an appearance notice or undertaking. (Bolded emphasis added).
[70] A police officer should not feel that they may be sitting in judgement of a justice’s decision to endorse. Rather Parliament’s intent by the use of the word ‘may’ provides an important responsibility to the officer to make their own analysis as to whether the defendant should be released or not. Police officers may have additional information that was not available to the justice when the decision to endorse was made, which could have been quite some time ago. If the officer believes that the defendant may not attend court (see s. 515(10)(a) above) or that public safety or public confidence in the administration of justice (see s. 515(10)(b-c) above) may be undermined ‘in all the circumstances’ then the officer may choose to not release and have the defendant brought before the court for a decision.
[71] There may also be situations where a warrant (ie; a s. 512.3 warrant (see above)) has been inadvertently endorsed despite s. 507(6) (see above). Such cases will be infrequent but an officer would be correct, in my opinion, if they did not release the defendant in those circumstances.
[72] Contextually then, where a warrant has been endorsed, Parliament has clearly obligated the police to make such analyses. A police officer is the final decision maker as to whether the defendant will be released or taken before a justice, when a warrant has been endorsed.
Conclusion
[73] As I began to review the initial issue of how to consider the Ladder Principle when Mr Kovacevic was on both judicial release orders followed by police undertakings on the same charges, I realized that he was on a merry-go-round of bail orders from the courts and the police. This caused me to consider how that scenario came about. The impact of the Covid-19 pandemic which fundamentally enhanced the bail merry-go round was profound. However, as I began my research, I realized practises which were necessary at the height of the pandemic need to be re-considered, in a (hopefully) post-pandemic reality. The list of inter-linked issues grew longer than just the application of the Ladder Principle. As I began to research the law set out in Part XVI of the Code and the relevant case law, I saw it as an opportunity to not only re-educate myself but also to comment on challenges many justice system participants are facing today on these issues.
[74] This decision is, obviously, binding on no one. However, it is my hope that it will clarify and/or spark dialogue on the application of the Ladder Principle, opportunities for greater clarity on police undertakings and summonses to prevent confusion for defendants, the issuance and endorsement of warrants and Parliament’s intent when it comes to the discretion of police to release on an endorsed warrant.
[75] I would be very pleased, if future circumstances arise, that we can get binding case law from the appellate courts on these important issues.
[76] In summary, my major conclusions include:
a) The Ladder Principle of bail is not affected when a police undertaking or summons is issued on the same charges as on a prior judicial release order.
b) The execution of a warrant does not affect a prior judicial release order. Only a judicial officer may vary or cancel a judicial release order.
c) A re-organization of the information on a police undertaking may make it clearer to defendants as to what orders they must follow.
d) Parliament’s intent where a prior judicial release order exists is that a warrant for the arrest of the defendant, other than in exceptional circumstances, cannot be endorsed. A warrant under s. 512.3 can never be endorsed. However, a warrant under s. 512(1), in exceptional circumstances where the ‘public interest and the interests of justice’ coincide may be endorsed. The analysis to make that determination is separate from the ‘public interest’ analysis required to issue a warrant instead of a summons under s. 512(1). A good example of what constitutes ‘exceptional circumstances’ was the Covid-19 pandemic which began in early 2020.
e) Parliament’s intent is for the police to exercise their discretion whether to release a defendant or take them before a justice, when they execute an endorsed warrant.
[77] Finally, I would urge the Crown to share my decision with the police so that they are aware of my analysis.