ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 1571/11
DATE: 2012 06 27
B E T W E E N:
HER MAJESTY THE QUEEN
A. J. Patton, for the Respondent
Respondent
- and -
JUSTIN ALEXANDER
A. Edgar, for the Applicant
Applicant
HEARD: June 26, 2012
JUDGMENT
HILL J.
INTRODUCTION
[ 1 ] The applicant, Justin Alexander, is in custody awaiting trial before this court in November 2012.
[ 2 ] According to his Notice of Application, the applicant seeks to have this court review his continued detention by way of a bail review pursuant to s. 520 of the Criminal Code on the basis that:
(1) “New sureties have come forward with a plan of release.
(2) The Applicant currently has less outstanding charges than when the detention order was made.
(3) Such further and other grounds as counsel may advise and this Honourable Court may permit.”
[ 3 ] While the bail review is dismissed for the reasons below, relief by certain Part XXVI Criminal Code extraordinary remedies is appropriate.
CHRONOLOGY
[ 4 ] On November 10, 2010, the applicant was granted interim release relating to an allegation that he committed an assault on April 20, 2010.
[ 5 ] The applicant was subsequently arrested. He was charged in three further informations:
(1) armed kidnapping (X3), armed robbery (X3) on November 23 and 24, 2010
(2) fail to appear in court on December 17, 2010
(3) possession of a prohibited substance on February 19, 2011.
[ 6 ] On April 12, 2011, the applicant appeared in bail court in the Ontario Court of Justice (OCJ). Because he was on bail when the further offences described in the subsequently laid three informations were said to have been committed, the scheduled bail hearing was a “reverse onus” proceeding regarding those charges pursuant to s. 515(6)(a) requiring the applicant to demonstrate why his continued detention was unnecessary having regard to the governing principles in s. 515(10) of the Code. At the outset of the s. 515(1) show cause hearing, with Justice of the Peace Manno vacating the November 10, 2010 recognizance pursuant to s. 523(2)(c) of the Code, the bail hearing respecting all four informations proceeded with the burden of persuasion upon the applicant.
[ 7 ] The court heard evidence on April 12 and 13, 2011 including from prospective sureties for the applicant. The Crown challenged release on the primary and secondary grounds (ss. 515(10)(a) and (b) respectively). At the conclusion of the hearing, having found that the then 21-year-old applicant had met his onus, Justice of the Peace Manno ordered him released on a recognizance with one or more sureties in the amount of $25,000 without deposit. A number of conditions were included in the release order. The presiding judicial officer not only did not name any sureties in the order pursuant to s. 515(2.1), he specifically disapproved of the sureties proffered by the applicant.
[ 8 ] In effect, the applicant was determined to be “releasable” but was not immediately released. With a warrant of committal, the applicant was returned to the custody of a local remand centre. The applicant’s release from custody then depended upon his production of new and sufficient sureties as contemplated by s. 519(1)(b) of the Code:
- RELEASE OF ACCUSED – (1) Where a justice makes an order under subsection 515(1), (2), (7) or (8),
(b) if the accused does not thereupon comply with the order, the justice who made the order or another justice having jurisdiction shall issue a warrant for the committal of the accused and may endorse thereon an authorization to the person having the custody to release the accused when the accused complies with the order
(i) forthwith after the compliance, if the accused is not required to be detained in custody in respect of any other matter …
and if the justice so endorses the warrant, he shall attach to it a copy of the order.
See also R. v. Brooks (2001), 153 C.C.C. (3d), at paras. 34-8.
[ 9 ] The Crown did not, pursuant to s. 521 of the Code, seek to have this court review the s. 515(2) release order of April 13, 2011.
[ 10 ] On May 16, 2011, the applicant was in a position to comply with the s. 515(2) release order of April 13, 2011. As a result, he was released on a recognizance with three sureties (A.M., R.D., J.P.de L.) with the following conditions:
(1) Reside with surety and be amendable to the rules and discipline of the household.
(2) Remain within the Province of Ontario.
(3) Abstain from communicating directly or indirectly with Yannick Edwin Robinson, Branimer Kutlesa, Krystal McLaren, Lois Torres, Russel Herrera, Thuy Le, Trung Pham, Thomas Stephens except through legal counsel.
(4) Not possess, ingest, inject any drug, controlled substance or precursor as defined by Federal Law, EXCEPT in accordance with a medical prescription.
(5) Not attend the residence, place of employment of Yannick Edwin Robinson, Thomas Stephens, Branimer Kutlesa, Krystal McLaren, Lois Torres, Russel Herrara, Thuy Le, Trung Pham.
(6) Remain in your residence daily except in the presence of your surety at all times.
(7) Not to have any contact with anyone with a criminal record including family members.
(8) Attend court as required.
(9) Not possess until dealt with according to law, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance or such items intended for use as a weapon as defined by the Criminal Code of Canada.
(10) Not possess or make application for any license or authorization pursuant to the Fire Arms Act.
[ 11 ] On November 28, 2011, at the conclusion of the preliminary inquiry on the kidnap/robbery charges, the applicant was committed to stand trial in the Superior Court of Justice (SCJ). He was remanded to the December 16 SCJ Assignment Court.
[ 12 ] On November 30, 2011, the applicant’s sureties applied to be released of their obligations. Here, at the courthouse, not in the presence of the applicant, each signed an “Application by Surety for Relief” form to be relieved of obligations under the May 16, 2011 recognizance. In a “Surety Warrant Interview Form” in the OCJ court file, R.D. and J.P.de L. are recorded as advancing their reason for surety withdrawal as “not abiding by conditions”. The form is not signed by the sureties and it is unknown who completed the form. On November 30, Justice of the Peace Murphy signed an “Order for Committal” pursuant to s. 766(1) of the Code authorizing the applicant’s arrest by a peace officer and authorizing a gaoler to receive the applicant to prison once arrested.
[ 13 ] On December 2, 2011, the applicant surrendered at Peel Regional Police Service (P.R.P.S.) 22 Division. That same day he was transported by the police to the courthouse to appear in OCJ Courtroom #101. Mr. Alexander had no lawyer for this court appearance. When his case was called, Crown counsel informed Justice of the Peace Chang-Alloy that the matter would need to be set for a special and lengthy bail hearing perhaps as long as three days. The applicant inquired whether he needed another bail hearing as he had already been ordered released and had then found sureties to complete his release. With a note before the court indicating that the applicant’s counsel could attend to speak to the case on December 7, the accused was remanded to that date with the Form 2 information(s) endorsed “BHNC” (Bail Hearing Not Commenced).
[ 14 ] When the applicant was returned to court on December 5, he appeared without a lawyer and the presiding justice of the peace confirmed that on December 7 the case would be spoken to in order to set a date for a lengthy bail hearing. Again, the court record was endorsed “BHNC”.
[ 15 ] On December 7, 2011, the applicant appeared in court again without counsel. Crown counsel submitted that with the “surety withdrawal”, at least one day was required for a new bail hearing. Crown counsel stated on the record that there was a note in the file from the law firm that had been representing Mr. Alexander stating that they could no longer assist the applicant as “their retainer for this matter has been exhausted”. Counsel also noted on the record, apparently on hearing a side-bar comment of the applicant, that this was the first the applicant had heard of this. In the background, the applicant can be heard to say, “There’s my surety”. The court recognized the presence of the potential surety but stated that an entirely new bail hearing had to be scheduled. The first available date was January 4, 2012. However, because the applicant appeared to be without counsel, he was remanded to December 12 for the matter to be spoken to with the information(s) endorsed “BHNC”.
[ 16 ] On December 12, when the applicant’s case was called, duty counsel was present. He asked that the court clerk page for a representative of the law firm that had been representing Mr. Alexander. When a lawyer from that firm arrived, he informed Justice of the Peace Weiss that:
(1) a “hold down” message had been sent relating to the applicant’s matter as counsel was in a judicial pre-trial on another case
(2) that a date for a new bail hearing needed to be set but counsel did not have his dates with him.
[ 17 ] When the court observed that it had a busy list and was not anxious to have the prisoner brought up from the basement cells of the courthouse “a second time unnecessarily”, this exchange transpired:
COUNSEL: I don’t want to waste the Court’s time. If I can, Court’s indulgence, I’ll just speak with Mr. Alexander.
THE COURT: Yeah, sure, okay. If they need a couple of minutes, we can address someone else while they’re….
COUNSEL: Okay.
THE COURT: Oh, are you….
COUNSEL: Okay. Your Worship, that may not be necessary. I’ve got instructions from Mr. Alexander, he’d like to consent to his detention.
[ 18 ] It appears that counsel then departed leaving the applicant with duty counsel. The justice of the peace asked Crown counsel to narrate a summary of the facts. After a brief overview of the allegations, the court directly addressed the applicant:
THE COURT: And it’s a reverse onus?
CROWN COUNSEL: Yes, Your Worship.
THE COURT: All right. Then, Mr. Alexander, is it your position that you cannot show cause for release and wish to consent to your detention?
APPLICANT: Yes.
[ 19 ] On December 12, Justice of the Peace Weiss signed an “Instructions For Preparation of Warrant For Committal In Form 8” form identifying that the applicant had been detained in custody pursuant to s. 515(6) of the Code.
THE APPLICATION RECORD
[ 20 ] The applicant’s materials on this application rely not only on the availability of new and adequate sureties but also on other asserted material circumstances including the resolution of charges in three of the four informations before the court in 2011, and, his breach-free conduct in the 6 ½ month period while on bail (May 16 to December 2, 2011).
[ 21 ] Before this court, as an aspect of the s. 520 bail review application, the applicant advances A.M., C.R. and S.P.de L. as prospective sureties.
[ 22 ] Mr. Alexander deposed in his affidavit material that:
During my release, I followed all my bail conditions. It is my understanding that my surety at the time, [R.D.], pulled bail because I was not taking my medication. I was and am on medication for depression and anxiety. I was not taking my medication at the time because I felt it was having an adverse effect on me. Before I could get re-evaluated by a medical professional, [R.D.] pulled my bail. I have since been re-evaluated by a medical professional and was prescribed different medication. I have been taking the prescribed medication.
[ 23 ] J. P.de L.’s affidavit states in part that:
[R.D.], one of Justin’s sureties, told me that she was going to pull Justin’s bail because he was not taking his medication. Justin was taking medication for depression and stress. While I was Justin’s surety, I saw that the medication he was taking at the time had negative effects on him and did not make him feel well. Justin and I planned on consulting with the doctor to get a new prescription but before we could go for a doctor’s appointment, [R.D.] pulled Justin’s bail. I tried to talk to [R.D.] about the situation but was unable to convince her not to pull Justin’s bail.
I understood that if another surety pulled bail, I would lose the money I pledged as Justin’s surety if I did not pull bail as well. When [R.D.] pulled bail, I also pulled Justin’s bail because I did not want to lose my money.
[ 24 ] A.M., one of the sureties who withdrew her suretyship on November 30, 2011, deposed that while she was the applicant’s surety, “he always obeyed the conditions of his bail”.
ANALYSIS
Relevant Statutory Provisions
[ 25 ] The November 30, 2011 “render” of the applicant by his sureties invoked the process of Part XXV of the Code. Some of the relevant provisions are as follows:
(Statutory provisions reproduced verbatim)
[ 26 ] Various provisions of Part XVI of the Code provide opportunities for a recognizance to be vacated and for detention to be ordered, for example, ss. 523(2) and 524(1) to (5):
(Statutory provisions reproduced verbatim)
The Present Case
[ 27 ] Pressed by the court during argument as to the validity of the proceedings under Part XXV of the Code, and the legal significance upon detention of the surety-rendering, the application, as constituted, took a somewhat different course.
[ 28 ] On November 30, 2011, the applicant’s three sureties applied to be relieved of their obligations. Because the sureties did not themselves bring Mr. Alexander into court, they could not, by that mechanism (s. 767), discharge their obligation under the May 16, 2011 recognizance. In turn, the in-court substitution of sureties contemplated by s. 767.1 of the Code without a committal order was unavailable to the applicant.
[ 29 ] When the justice of the peace signed the s. 766(1) Order For Committal on November 30, the sureties continued to be bound by the May 16, 2011 recognizance.
[ 30 ] When, on December 2, the applicant surrendered into custody at P.R.P.S. 22 Division he was actually or constructively arrested and placed in the Division’s lock-up (a “prison” as defined in s. 2 of the Code). The same day, the police brought the applicant before a justice of the peace at the courthouse. The practice in this jurisdiction, where a s. 766 order has been executed, has been for the police to draw a diagonal line across the committal order, and to write or print “EXECUTED” along the line with the date together with a peace officer’s signature. This appears to be the modern-day version of the s. 766(3) sheriff’s “certificate” that the person has been committed to prison under the committal order. There is no evidence that in this case the police delivered such a “certificate” to the court. None exists in the court file.
[ 31 ] Accordingly, on December 2, in the absence of receipt of a physical certificate, the justice of the peace did not follow the otherwise mandatory course of endorsing the court’s committal onto the face of the May 16 recognizance which would be the step having the effect, pursuant to s. 766(4), of vacating that recognizance and discharging the sureties. It is agreed that there is no s. 766(3) endorsement on the original or copies of the May 16 recognizance in the court file. The recognizance was not vacated nor the sureties discharged. On this view of the case, the applicant could be seen as in a kind of detention limbo – in custody on a s. 766(1) committal order but unable to be free of the existing recognizance to allow him to secure a new recognizance with new sureties to satisfy the subsisting April 13, 2011 order for release.
[ 32 ] It appears that the applicant’s December 2 committal back to the local remand centre was on the continued authority of the s. 766(1) order, either without recognition that a demand for a certificate should have issued to found s. 766(3) jurisdiction or under the misapprehension that one had been received and the s. 766(3) endorsement made. The applicant’s continued detention certainly was not on the basis of any prosecution application pursuant to s. 523 or s. 524 of the Code.
[ 33 ] Under s. 523 or s. 524, the Crown has the onus of demonstrating why an existing release order ought to be disturbed. Where the onus is satisfied, detention results.
[ 34 ] An accused can experience a surety-rendering due to no fault of his or her own.
[ 35 ] In other words, a s. 766(1) committal does not justify an entirely new bail hearing where, as here, the accused would again have the burden of showing why he ought to be ordered released.
[ 36 ] In my view, on the basis of the language employed in the relevant provisions, and in the interests of fairness and efficiency, this interpretative approach is to be preferred.
[ 37 ] The entire proceeding on December 12, 2011 was ill-advised.
[ 38 ] Certainly it cannot seriously be suggested that in these circumstances the applicant waived any legal rights in an informed fashion.
[ 39 ] Whether or not the s. 766(3)(4) endorsement process was properly executed, there remained a valid release order of April 13, 2011 in existence and the court was, accordingly, without jurisdiction to issue a s. 515(6) detention order on consent or otherwise.
The Appropriate Remedy
[ 40 ] A s. 520 bail hearing is a flexible remedy permitting judicial review of a detention order.
[ 41 ] Be that as it may, in the unique circumstances of this case, where the nature of the applicant’s continued detention is rooted both in a defectively/incompletely executed process under s. 766 of the Code and a s. 515(6) detention order imposed without jurisdiction, habeas corpus with certiorari in aid is the appropriate remedy.
[ 42 ] This remedy need not effect the complete liberty of an individual but may, in questioning the legality of the deprivation of liberty, properly attack the unlawfulness of a particular form of detention.
[ 43 ] On the record here, Mr. Alexander has demonstrated unlawful deprivation of liberty.
[ 44 ] The Crown, quite rightly, did not attempt to establish the lawfulness of the liberty deprivations by the detaining authorities on these bases.
[ 45 ] Given the need for expedition in affirming constitutional rights, I am satisfied that the declaratory element of habeas corpus review of the lawfulness of detention may appropriately remedy the existing situation.
CONCLUSION
[ 46 ] In the result, the s. 520 bail review application is dismissed. Habeas corpus with certiorari in aid is granted. It is declared that the applicant is at present unlawfully detained. The current unlawful deprivation of liberty is remedied as follows:
(1) the s. 515(6) detention order made on December 12, 2011 is quashed
(2) the recognizance of May 16, 2011 is vacated and the sureties for that order are discharged
(3) the s. 515(2) release order of April 13, 2011 remains in effect and the person having custody of the applicant is authorized, pursuant to s. 519(1)(b), to release the applicant when he complies with that order.
HILL J.
DATE: June 27, 2012
COURT FILE NO.: CRIMJ(P) 1571/11
DATE: 2012 06 27
SUPERIOR COURT OF JUSTICE - ONTARIO RE: HER MAJESTY THE QUEEN v. JUSTIN ALEXANDER BEFORE: HILL J. COUNSEL: J. Patton, for the Respondent A. Edgar, for the Applicant JUDGMENT HILL J.
DATE: June 27, 2012