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 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE DATE: January 2, 2024 COURT FILE No.: 21-19865

B E T W E E N :

HIS MAJESTY THE KING

— AND — MARCO CLAYTON

Before: Justice Robert Wadden

Submissions on Application: December 20, 2023 Reasons released on: January 2, 2024

Counsel: H. Shouldice ................................................................... counsel for the Crown K. Lundrigan & O. Abergel ....................................................... for the Accused

Reasons for Decision

WADDEN, J.:

[1] Marco Clayton seeks to bring an application for judicial interim release before me while he is in the middle of his trial before another judge. The Crown opposes, asserting that only the trial judge has jurisdiction to hear the bail application mid-trial.

[2] The facts are that Mr. Clayton was charged with these human trafficking offences in December 2019 while he was mid-trial on other human trafficking charges. Mr. Clayton was convicted on those other charges in March 2020. In June 2021 he was sentenced on those charges to a global sentence of 8 years, and deducting pre-sentence custody he was left with over three and a half years to serve. Meanwhile, the charges before me were remanded and trial dates were set without any determination of bail having been made.

[3] The trial on the charges before me commenced on July 12, 2021 before Justice Fraser. The trial proceeded on July 12-23, August 14 and 27, 2021 and May 24 and October 11-14, 2022 and is set to continue on February 12-16, 2024. During all of that trial time Mr. Clayton was serving his penitentiary term on the June 2021 sentence. In late November or early December 2023 Mr. Clayton was granted statutory release on his penitentiary sentence and is now on parole on those charges. Since then he has remained in custody on these charges, having never brought an application for bail.

[4] Mr. Clayton’s counsel seeks to bring the bail application before me because the trial judge, Justice Fraser, is unavailable until the continuation dates in February. Justice Fraser is a part time judge and has limited sitting dates. Counsel wishes to have the matter determined sooner rather than later, before Justice Fraser becomes available. Counsel takes the position that I have jurisdiction because this would be a bail hearing in the first instance, with no prior detention order having been made. Therefore, counsel asserts, there is no legislative barrier to prohibit any judge of the Ontario Court of Justice from hearing the bail application.

[5] The Crown takes the position that s. 523 of the Criminal Code prohibits any judge except the trial judge from hearing a bail application once the accused is mid-trial, and for that reason I do not have jurisdiction to hear the bail.

[6] The relevant portions of section 523(2)(a) of the Code state: 523(2) … (a) the court, judge or justice before which or 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 his trial is completed that the court, judge or justice considers to be warranted.

[7] In R. v. Farrell, 2011 ONSC 2160 Mr. Justice Lalonde stated, at para. 31, that “Part XVI of the Criminal Code provides a complete regime for determining the issues of release and detention before and during trial. Under s. 523(2), the court before which an accused person is being tried has the exclusive jurisdiction to determine the release or detention of the accused until the completion of the trial.” His Honour further stated, at para. 71, that “the exclusive jurisdiction for a bail review is in the exclusive jurisdiction of the trial judge.” In that case, Mr. Farrell was mid-trial before Mme. Justice Parfett and had already applied for bail and been denied, thus being subject to a detention order. This is a distinction from Mr. Clayton’s case.

[8] In R. v. Ali, 2020 ONCA 566, Mr. Justice Trotter stated at para 15 that “Section 523(2)(a) empowers trial judges to address the bail status of accused persons during the course of the trial. The lack of a review mechanism forecloses interference by another court while the trial is ongoing.” In that case, there had also been an original detention order made.

[9] In R. v. Dhingra, 2022 QCCQ 1000 Justice Hebert of the Quebec provincial court stated, at para 12, that “Section 523(2)(a) of the Code grants jurisdiction to the trial judge to vacate any order previously made regarding the detention or the release on bail of the accused person who is standing trial. In fact, when an accused person’s trial has begun, the trial judge alone has jurisdiction to address arising issues pertaining to bail,” and further at para 13, “If the trial has begun and evidence on the merits has been presented, only the trial judge can hear a bail application, pursuant to s. 523(2)(a) of the Code.” In that case, there had been a prior application for bail and a detention order made.

[10] In R. v. Passera, 2017 ONCA 308, the Court stated at para 15 that s. 523(2)(a) shows “a clear Parliamentary intention to leave matters of judicial interim release at trial in the hands of the trial judge, where other equally significant procedural, evidentiary and substantive decisions reside, subject to review at the conclusion of trial proceedings.” In that case, as well, there appears to have been an application for bail made at an earlier stage and a detention order made.

[11] All of the above noted cases proceeded in situations where a prior application for bail had been made and determined and a detention order had been made.

[12] The clear wording of s. 523(2)(a) refers to the vacating of “any order previously made”. In R. v. Passera the Court noted that the section “is itself a review provision since it involves consideration of a prior detention or release order.” In Mr. Clayton’s case, no such prior detention order exists.

[13] Although the Crown’s submissions are compelling, their argument rests on an overly broad interpretation of the relevant section. Mr. Clayton has not been subject to a detention order, nor has he consented to his detention on these charges. Certainly, given that the charges arose in December 2019 and he has made no application for bail, he has appeared to acquiesce to his detention, but that is not the same as a detention order being made. Nor is it the same as a consent to detention. It may be said there is a legislative gap in that the Section does not provide for a circumstance such as the one before me when an accused has found himself mid-trial without ever having brought an initial application for release. However, the Court of Appeal in other cases has made it clear that judges are not to fill what may be a legislative gap with an overly broad statutory interpretation.

[14] In my view, s. 523(2)(a) does not deprive me of jurisdiction to hear a bail hearing for Mr. Clayton, as this would be a bail hearing in the first instance.

[15] However, there are compelling reasons for me to decline to exercise that jurisdiction. As noted in R. v. Passera, the Court stated, at para 13, that “The decisions of trial judges on procedural, evidentiary and substantive issues within their purview, in short, the management of trial proceedings, is left to the trial judge. In limine review proceedings, with their resultant delay; fragmentation of the trial process; determination of issues on an incomplete and inadequate evidentiary record, not to mention their consumption of time and effort and unnecessary depletion of scarce judicial resources, are the antithesis of our system of criminal justice …” In other words, regardless of whether a prior detention order has been made or not, in my view the trial judge is in the best position to determine the issue of bail for Mr. Clayton. A fair determination of the grounds of detention can only be made on an assessment of what has happened so far at trial. Whether primary grounds are of concern may depend on the how well the Crown’s evidence has gone in, in order to determine if Mr. Clayton poses a risk of flight if he were released mid-trial, after many years of incarceration. A determination of whether Mr. Clayton poses a risk of interfering with witnesses, whether for the Crown or potential defence witnesses, may depend on an understanding of the trial evidence so far, especially in a case such as human trafficking. Furthermore, a determination on the tertiary grounds would include an assessment, among other things, of the strength of the Crown’s case and the potential for a lengthy term of imprisonment. The trial judge, who is in the middle of the trial, is the only jurist in a position to fairly determine this. To have counsel argue their interpretations of how well the case has proceeded, how the witnesses have come across and the likelihood of lengthy incarceration, would be time-consuming and subjective. It would require me, to paraphrase the Court of Appeal, to determine the issues on an incomplete and inadequate record. It would be an inefficient use of scarce judicial resources.

[16] Defence counsel asserts that having to wait another month for Justice Fraser to be available to determine the bail would result in an unfairly long wait for Mr. Clayton, in a situation that is not of his own making. However, I note that it was available to Mr. Clayton at any time before or since the trial began to bring a bail application on these charges, even though he was serving a sentence. The bail application would have determined whether or not he would be detained on these charges upon his release on parole. He could have brought this application earlier in 2023, in anticipation of his statutory release, which was, by definition, foreseeable. Justice Fraser was available on sitting days throughout 2023, even into December. It was ultimately Mr. Clayton’s choice to bring the application as late as he did.

[17] My conclusion is that there is no legislative prohibition on my hearing a bail hearing for Mr. Clayton, and that I have jurisdiction, but I decline to exercise that jurisdiction. I am of the view from reviewing the cases analysing the intentions behind s. 523(2)(a) of the Code, and in particular the analysis of the Court of Appeal in Passera, that for reasons of policy and practice only the trial judge should hear Mr. Clayton’s application for bail. In my view, neither I nor any other judge or justice of the Ontario Court of Justice should hear the bail hearing, in deference to the trial judge and in the interests of judicial economy and efficiency. I would only exercise my jurisdiction to conduct a bail hearing if that were expressly requested by the trial judge.

[18] Therefore, this case is to be adjourned to the next scheduled appearance before Justice Fraser, for the continuation of the trial, on February 12, 2024. Counsel are to appear in the trial management court on the preceding week to confirm trial readiness.

Released January 2, 2024 Signed: Justice Robert Wadden