R. v. Webley, 2015 ONSC 3857
CITATION: R. v. Webley, 2015 ONSC 3857
COURT FILE NO.: 176/13
DATE: 20150615
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
MERVIN WEBLEY
Applicant
Anthony MacKinnon, for the Crown (Respondent)
Saara Wilson, for the accused (Applicant)
Heard May 21, 2015
RULING ON APPLICATION FOR BAIL REVIEW UNDER SECTION 520 OF THE CRIMINAL CODE
Coats J.
Overview
[1] The applicant, Mervin Webley, brings this application for a bail review pursuant to section 520 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Criminal Code”). The grounds for the application are as follows.
[2] Section 524(8)(b) of the Criminal Code requires that where a justice finds reasonable grounds to believe that an accused has committed an indictable offence while on release pending trial, s/he must cancel the accused’s release and order his/her detention, unless the accused can show cause for why his/her detention is not justified.
[3] In 2014, the applicant was on bail for charges of sexual assault and forcible confinement. In January and March, he was charged with several further assaults and with driving with a suspended licence. In April, the Crown applied to revoke his release pursuant to s.524, which was granted by a justice of the peace following a show cause hearing on July 16, 2014.
[4] The applicant challenges his s.524 detention. He relies on the fact that, at the show cause hearing, the defence raised an issue with respect to the Crown having elected to proceed on the charges by way of summary conviction. He argues that the justice of the peace erred in law by ordering his detention without first confirming whether the charges he was alleged to have committed while out on bail were, in fact, proceeding by way of indictment. He argues that the justice therefore had no grounds upon which to grant the s.524 application by the Crown.
Background Facts
[5] On January 21, 2015, the applicant, Mervin Webley, was convicted by a jury of sexual assault and forcible confinement in the Milton Superior Court of Justice (the “Milton charges”). The charges were in respect of incidents relating to his former girlfriend. Prior to these incidents, the accused had no criminal record.
[6] The applicant was originally released from custody on these charges on an undertaking.
[7] Following his release, on January 16, 2014, the applicant incurred new charges of assaulting a police officer in Kitchener and driving while suspended (the “January Kitchener charges”). He was arrested and released on the same day on a promise to appear.
[8] On March 20, 2014, he incurred a further charge of two counts of assault in Kitchener (the “March Kitchener charges”). He was again arrested, and his prior release on the January Kitchener charges was vacated, pursuant to section 524(8) of the Criminal Code. He ran a show cause hearing on March 27 and was ordered detained.
[9] In April 2014, the Crown applied to revoke the applicant’s release on the original Milton charges, pursuant to section 524(8)(b) of the Criminal Code. On July 16, 2014, the applicant had a show cause hearing before a justice of the peace, following which his release was revoked and he was ordered detained on those charges.
[10] During the show cause hearing on July 16, the defence raised an issue with respect to the court’s jurisdiction to proceed with a show cause hearing under section 524(8). The defence’s concern was that it had received a letter from the applicant’s counsel who was representing him on the Kitchener charges, indicating that “there has either been an election or there is reason to believe that there has been an election to proceed summarily, which would mean that Mr. Webley is not deemed to have committed any indictable offence at this stage” (Transcript of Proceedings at Show Cause Hearing on July 16, 2014, p.5, lines 14-18). The Defence therefore advised the justice that it was of the opinion that there was no power to proceed under section 524(8).
[11] In response to this submission, the Crown stated that any Crown election was irrelevant, because the triggering factor was the nature of the offences at the time they are alleged to have been committed. At that time, the offences were hybrid in nature and therefore presumed to be indictable offences. Accordingly, any subsequent decision by the Crown to proceed summarily or by indictment would have no bearing on the justice’s power to detain the accused under section 524(8). As it turned out, the Crown had no information as to whether an election had, in fact, been made in respect of the Kitchener charges at that time (Transcript of Proceedings, p. 6, lines 6-26 and p. 8, line 32 to p.9, lines 1-8).
[12] For reasons not clear on the record, the justice of the peace did not squarely address the issue. Instead, after hearing the submission of the Crown, and without any further comments on the issue, the justice of the peace concluded that he was satisfied that the accused’s release could be vacated and that the show cause hearing could proceed (Transcript of Proceedings, p.9, lines 9-13).
[13] The focus of the hearing was on whether the accused could demonstrate that his detention was not justified on the secondary ground – being the protection or safety of the public, having regard to the likelihood that the accused would commit further offences if released.
[14] At the conclusion of the hearing, the accused was ordered detained. The justice of the peace indicated that he was not satisfied that the proposed plan of release and the proposed surety – the accused’s mother – were sufficient to address the Crown’s secondary ground concerns. The justice emphasized that the applicant’s behaviour had escalated, becoming more aggressive in recent months. As such, the accused was required to present a robust, comprehensive, and structured plan of supervision that could satisfy the court’s concerns.
[15] The justice found that the surety’s relationship with the accused was deficient of the required depth and influence needed to adequately supervise him. He emphasized the surety’s limited understanding of the seriousness of the allegations surrounding the accused and of the present circumstances of the accused himself. Without adequate knowledge of the accused’s circumstances, the justice was not satisfied that the surety could exert sufficient influence and discipline over the accused. The justice also pointed to the fact that no attempts were made in the plan of release to address possible anger management or alcohol dependency issues.
[16] Finally, the justice indicated that the proposed financial sum for a bail release – $2,500 – was insufficient to satisfy the court that the funds would assist with the supervision of the accused.
[17] On July 17, 2014, the applicant’s January Kitchener charges were resolved: following a trial for his charge of assaulting a police officer, the applicant was acquitted; on the same day, he plead guilty to the charge of driving while suspended and was sentenced to 10 days in jail. On September 5, 2014, following a trial of his charges for two counts of assault – the March Kitchener charges – he was acquitted of one count of assault and convicted of the other. He was sentenced to one day in jail, in addition to 60 days of pre-sentence custody.
[18] The applicant has provided the following table demonstrating a break-down of his time spent in custody thus far:
| Date | # of days | Action |
|---|---|---|
| July 9, 2012 | 1 | Released on promise to appear |
| January 16, 2014 | Arrested on Kitchener charge of assault police, released on promise to appear with undertaking | |
| March 20, 2014 | Arrested on Kitchener charge of assault, detained. Other Kitchener release vacated | |
| April 11, 2014 to July 15, 2014 | 96 | Arrested on s.524 application in Milton and the application was adjourned |
| July 16, 2014 | Show Cause hearing held in Milton. Detained. Release officially revoked under s.524 | |
| July 16, 2014 to May 21, 2015 | 310 | Argument on the constitutionality issue |
| May 22, 2015 to August 5, 2015 | 76 | Final sentencing date |
| Total: | 483 |
[19] As this table illustrates, the Applicant will have spent a total of 483 days in custody on these Milton charges. This period does not include the time spent in custody in relation to the March Kitchener charges of assault, between March 20, 2014 and April 11, 2014. The parties agree that the jail sentence for the March Kitchener charges is to be deducted from any pre-sentence custody available for credit on the present Milton charges.
The Issue of Enhanced Credit
[20] Under section 719(3.1) of the Criminal Code, the applicant is not entitled to enhanced credit for any time spent in pre-trial custody pursuant to a section 524 detention.
[21] The above table indicates that the applicant spent a total of 97 days in custody before his section 524 detention and 386 days in custody afterwards, for a total of 483 days. Accordingly, the applicant would only be entitled to enhanced credit for 97 days of his pre-trial custody. Pursuant to section 719(3.1), enhanced credit is limited to a ratio of 1.5:1. Therefore, the applicant would be entitled to a total of credit of 532 days (386 + 149 [97 x 1.5]).
[22] If, however, the applicant was improperly detained under s.524, then he would be entitled to enhanced credit for the entire 483 days he spent in pre-trial custody on the Milton charges. This would translate to a total of 725 days credit (483 x 1.5).
[23] The difference between the two scenarios is 193 days, or approximately 6.5 months. This is a significant difference.
[24] The various scenarios are illustrated in the following table provided by the applicant:
| If the total time were granted 1:1 credit | 483 days |
| If the total time were granted 1.5:1 | 725 days |
| If only the portion of time served prior to July 16, 3024, were granted 1.5:1 and the remnant were granted at 1:1 | 532 days |
Issue
[25] There are two issues before this Court. The first issue is whether the justice of the peace erred in law in finding that there were grounds upon which to grant the Crown’s section 524 application because he failed to determine whether the offences that the applicant was alleged to have committed while on release were, in fact, proceeding by way of indictment.
[26] An included issue is whether, in the case of hybrid offences, a Crown election to proceed summarily matters for the purpose of a section 524(8) hearing and detention. In other words, does a Crown election to proceed summarily alter the character of the offence, such that it is no longer indictable in nature? If so, is the indictable nature of the offence, which is a precondition to the applicability of section 524(8), to be determined at the time of arrest or at the time of the hearing itself?
[27] The second issue is whether the decision of the justice of the peace was wrong on the merits. That is, whether his decision was clearly inappropriate because he gave excessive weight to the lack of a plan for the accused’s rehabilitation, and because he gave insufficient weight to the scope of supervision laid out to address the Crown’s secondary ground concerns.
Position of the Parties
The Applicant’s Position
i. Whether the Justice erred in law
[28] The applicant argues that, where the Crown has elected to proceed by way of summary conviction on a hybrid offence, the offence is thereafter to be treated as a summary conviction offence for all intents and purposes. Because a section 524(8) application deals with the situation of an accused committing an indictable offence while on release, it follows that the indictable nature of the offence will be an important precondition to the justice’s jurisdiction to detain the accused under this section.
[29] In this case, at the outset of the applicant’s show cause hearing on July 16, the defence raised the issue that there was an indication that the Crown was proceeding summarily on the charges the accused allegedly committed while on release (the January and March Kitchener charges). Therefore, according to the defence, the justice of the peace was required to satisfy himself, before proceeding with the 524 hearing, that the Kitchener charges were, in fact, indictable offences.
[30] Having failed to do so, the defence argues that the justice of the peace did not have the jurisdiction to order the accused’s detention under section 524(8) of the Criminal Code. As a result, the defence argues that this court should vacate the order to detain. The defence further submits that this court should then order the accused’s detention under section 523(2) of the Criminal Code.
[31] The effect of this would be that the accused would no longer be disentitled to enhanced credit under section 719(3.1) of the Criminal Code.
ii. Whether the Justice’s decision was clearly inappropriate
[32] The applicant contends that the justice of the peace gave a decision that was clearly inappropriate, and that he erred in weighing the various factors in determining that the accused’s detention was justified on the secondary ground.
[33] First, the applicant argues that the justice gave insufficient weight to the measures put in place to address the Crown’s secondary concerns. According to the applicant, the proposed surety was alive to the issues facing the accused. She was aware of his work shifts and was willing to follow up with his employment to ensure he attended those shifts. She confirmed her understanding of her role as a surety and that she would call the police if the applicant failed to comply with any of his terms of release, including the proposed curfew of 9.00 p.m. to 6.00 a.m. and a non-contact order with the complainant. Together, her and her husband would be available for supervision approximately 23 hours of the day.
[34] The applicant also states that the justice failed to sufficiently account for the fact that, while the amount of $2,500 promised for bail was not a great sum of money, it was a significant sum for the surety, considering her means. The applicant highlights that bail should not be reserved for people of means, but should be available to everyone, regardless of financial standing.
[35] Second, the applicant asserts that the justice accorded excessive weight to the fact that the release plan did not make any pro-active attempts to address possible anger management or alcohol dependency issues. This emphasis on some kind of rehabilitation plan, the applicant says, is not the appropriate test on a bail hearing. Rather, the test was whether the plan of release provided for adequate supervision over the accused to address the Crown’s secondary ground concerns – which the applicant contends it did.
Position of the Crown
i. Whether the Justice erred in law
[36] The Crown takes the same position that it took at the accused’s show cause hearing. To recap briefly, the Crown’s position is that, as far as hybrid offences are concerned, a Crown election to proceed summarily is irrelevant. Rather, what matters is the nature of the offence at the time the accused is arrested. At the time of arrest, the offence was a hybrid offence, which is deemed to be an indictable offence. The consequence of this is that, even where the Crown has elected to proceed summarily by the time the section 524 application is being heard, this does not retroactively alter the indictable nature of the offence at the time of arrest.
[37] According to the Crown, the only way the defence can succeed is if a Crown election to proceed summarily renders a hybrid offence to be a summary conviction offence ab initio. This, according to the Crown, is an untenable legal position.
ii. Whether the Justice’s decision was clearly inappropriate
[38] The Crown argues that the justice’s decision was not inappropriate. The Crown starts from the position that the applicant’s release on the original Milton charges was “generous” to begin with, as he had committed a violent domestic rape. The applicant subsequently was arrested for committing four offences – two in January 2014 for driving while suspended and for assaulting a police officer and two counts of assault in March 2014.
[39] According to the Crown, the justice’s concerns about the applicant’s conduct were, accordingly, well founded. The applicant had repeatedly demonstrated a wanton disregard for court orders and for the fact that he was already facing serious criminal charges. Further, his violent behaviour was escalating. The justice was appropriately of the view that the applicant required an extremely strict and robust plan of release.
[40] The Crown submits that the applicant’s plan was simply insufficient in this regard. The surety revealed on cross-examination that the applicant did not have current employment, and she could not say when he would resume employment. She demonstrated a lack of in-depth knowledge about the details of the applicant’s children – her grandchildren – and about the circumstances of the applicant generally. Further, the amount of bail monies proposed was, in light of the number and level of violent offences committed by the accused, simply inadequate to mitigate the Crown’s secondary ground concerns.
[41] Finally, the Crown highlights the fact that the justice’s reasons were detailed and thorough. In particular, the justice reminded himself of the relevant case law and principles to be applied in a bail hearing, including the presumption of innocence, and the fact that pre-trial release is supposed to be the norm and not the exception.
[42] The justice’s decision to detain the applicant was based on a careful weighing of the facts and was amply justified on the record.
[43] The Crown submits, therefore, that this court should dismiss the application for review.
Law
Standard of Review
[44] The standard of review on a section 520 bail review was recently addressed by the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27 [2015] S.C.J. No. 27 at para. 121:
It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.
The Text of the Provisions
[45] Section 719(3) of the Criminal Code is a sentencing provision that sets out the general rule that credit for pre-trial custody is limited to a ratio of 1 to 1. Section 719(3.1) of the Criminal Code limits the amount and availability of enhanced credit that may be granted in certain circumstances. These sections read:
719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[46] Sections 524(4) and (8) of the Criminal Code require a judge or justice of the peace, respectively, to revoke an accused’s release if s/he commits an indictable offence while on release for another indictable offence, unless the accused can show why his/her detention is not justified. The relevant provisions of section 524 read:
Issue of warrant for arrest of accused
- (1) Where a justice is satisfied that there are reasonable grounds to believe that an accused
(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
he may issue a warrant for the arrest of the accused.
Arrest of accused without warrant
(2) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused
(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
may arrest the accused without warrant.
Hearing
(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall
(a) where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or
(b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.
Retention of accused
(4) Where an accused described in paragraph (3)(a) is taken before a judge and the judge finds
(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).
Powers of justice after hearing
(8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds
(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).
[47] Section 515(10) outlines the grounds upon which the pre-trial detention of an accused may be justified:
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.
[48] Section 520 of the Criminal Code authorizes a justice to vacate any order made under (amongst others) subsection 515(5) – detention of the accused. Section 524(13) states that section 520 applies in respect of any order made under subsection 524(8) as though the order were made under subsection 515(5). These provisions read:
Detention in custody
515 (5) Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall include in the record a statement of his reasons for making the order.
Review of order
520 (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.
Evidence and powers of judge on review
520 (7) On the hearing of an application under this section, the judge…..shall either
(d) dismiss the application, or
(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.
Certain provisions applicable to order under this section
524 (13) Section 520 applies in respect of any order made under subsection (8) or (9) as though the order were an order made by a justice or a judge of the Nunavut Court of Justice under subsection 515(2) or (5), and section 521 applies in respect of any order made under subsection (9) as though the order were an order made by a justice or a judge of the Nunavut Court of Justice under subsection 515(2).
[49] The offences that the applicant was alleged to have committed while on release for the Milton charges were hybrid offences, liable to be prosecuted either summarily or by way of indictment.
[50] Pursuant to section 34(1)(a) of the Interpretation Act, R.S.C., 1985, c. 1-21, all hybrid offences are deemed to be indictable. The case law has qualified this by finding that this presumption applies “unless, and until, the Crown elects to proceed summarily” (R v. Dudley, 2009 SCC 58 at para. 18; R v. Mitchell, 1997 6321 (ON CA), [1997] O.J. No. 5148, 36 O.R. (3d) 643 (Ont. C.A.) [Mitichell]). Section 34(1)(a) reads:
Indictable and summary conviction offences
34(1) Where an enactment creates an offence,
(a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment.
[51] It follows from this that where the Crown fails to elect to proceed either summarily or by way of indictment, the offence is deemed to be an indictable offence. The exception to this is where the offence is proceeded with through trial in a court having jurisdiction to hear a summary conviction proceeding – in this province, the Ontario Court of Justice. In such cases, it will be presumed, in the absence of any indication to the contrary, that the Crown elected to proceed summarily (Mitchell).
[52] Finally, where the Crown elects to proceed summarily and the accused is convicted, then s/he is deemed to have been convicted of a summary conviction offence, pursuant to section 34(1)(c) of the Interpretation Act:
34(1) Where an enactment creates an offence,
(c) if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.
The Case Law
[53] The issue in this case has, to my knowledge, never been squarely addressed in the jurisprudence. However, several cases have indirectly touched upon the issue.
[54] First, in R v. Dudley, 2009 SCC 5, the Supreme Court of Canada considered the issue of whether the Crown had the ability to proceed by indictment on a charge after it had chosen to proceed summarily without noticing that the information was laid out of time for a summary procedure.
[55] Writing for the majority, Fish J. noted that hybrid offences are increasing in number, and that in recent decades Parliament has transformed many crimes that were formerly pure indictable or summary conviction offences to hybrid offences (para. 15). A similar observation was noted by Joy J. in R. v. Ashini, 2015 NLPC 1711A14396, 883, 884, 1161 and 1249 [Ashini], where he stated that “Almost all offences in the Criminal Code are hybrid offences. It is actually difficult to find an offence that is solely a summary offence” (para. 65).
[56] Justice Fish noted that, pursuant to section 34(1) of the Interpretation Act, hybrid offences are deemed to be indictable offences “unless and until the Crown elects…to proceed summarily.” Once the Crown elects to proceed by way of summary conviction, the hybrid offence “is treated in all respects as a summary conviction offence” (emphasis added; paras. 2, 18, and 21).
[57] At paragraph 21, Fish J. quoted with approval and emphasized the statement of MacDonald J.A. in the case of C. (D.J.) v. R. (1985), 1985 3611 (PE SCAD), 21 C.C.C. (3d) 246 (P.E.I. C.A.) where he said “in the case of a hybrid offence once the Crown elects to proceed by way of summary conviction the offence is no longer deemed to be an indictable offence" (emphasis in Dudley). At paragraph 22, Fish J. cited a long line of authorities that have come to the same conclusion on this point.
[58] Importantly, Charron J., who wrote for the minority in Dudley, took the position that a Crown election to proceed summarily does not affect the original characterization of the offence as a deemed indictable offence under section 34(1) of the Interpretation Act. According to Charron J., the offence remains indictable regardless of an election, although the process and the practical effects – such as the available penalty – may be different. Therefore, she says, “it is of no moment when the Crown makes the decision….regardless of the timing of the Crown election, the offence is still deemed to be an indictable offence pursuant to the interpretation Act” (paras. 71-74).
[59] In response to this, Fish J. made the following comments:
[23] Justice Charron cites R. v. Connors (1998), 1998 12468 (BC CA), 121 C.C.C. (3d) 358 (B.C. C.A.), for the proposition that "dual procedure offences retai[n] their character as indictable offences in the context of the Identification of Criminals Act" (para. 73). As my colleague points out, the Identification of Criminals Act is not before us on this appeal. For present purposes, it will therefore suffice to emphasize that Connors stands alone in this regard. Other courts have reached the opposite conclusion. See, for example: Abarca v. R. (1980), 1980 2958 (ON CA), 57 C.C.C. (2d) 410 (Ont. C.A.), at p. 413.
[60] Thus, the majority left open the issue of whether a Crown election to proceed summarily alters the character of a hybrid offence as an indictable offence, while nonetheless emphasizing that the preponderance of the case law has not sided with Charron J.’s position on this point.
[61] One case referred to as having reached the opposite conclusion was R v. Abarca, 1980 2958 (ON CA), [1980] O.J. No. 1581, 57 C.C.C. (2d) 410 (Ont. C.A.) [Abarca]. In that case, the Ontario Court of Appeal considered a provision of the Criminal Code providing that an accused person may be required as part of his/her release to attend for fingerprinting (pursuant to the Identification of Criminals Act) where the accused is alleged to have committed an indictable offence. In that case, the accused allegedly committed theft under $200 – a hybrid offence. The Crown had refused to elect to proceed either summarily or by indictment until the accused’s fingerprints were taken. However, the accused refused to be fingerprinted until the Crown exercised its election. Thereafter, the Crown elected to proceed by way of indictment. The accused then brought an application to quash the charge, alleging abuse of process.
[62] The issue on appeal concerned the appropriateness of the Crown’s exercise of its discretionary power of election. Importantly for our purposes, at paragraph 7, the Ontario Court of Appeal commented on the impact of a Crown election to proceed summarily, stating: “Once the Crown elects to proceed by way of summary conviction, it cannot compel the appearance of an accused for fingerprinting.” While the Court did not directly consider whether a Crown election might alter the deemed indictable character of a hybrid offence per se, the Court’s comments in this regard must be understood as implying, at the least, that a Crown election to proceed summarily would remove a necessary precondition for requiring the accused’s attendance for fingerprinting – being that the accused committed an indictable offence.
[63] Other cases shed further light on this issue by revealing important constitutional considerations that inform the analysis. In R v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98 [Morales], the Supreme Court considered the constitutionality of section 515(6)(a) of the Criminal Code, which places the onus on the accused to show cause why his/her detention is not justified when s/he is charged with an indictable offence that is alleged to have been committed while at large after being released in respect of another indictable offence.
[64] It should be noted that this offence is quite similar to section 524(8), the major difference being that section 515(6)(a) applies to indictable offences committed while the accused is at large after being released in respect of another indictable offence. Section 524(8) captures those accused who simply commit an indictable offence after being released in respect of another offence. Further, section 515(6)(a) applies to accused persons who are charged with the commission of an additional indictable offence, while section 524(8) applies to accused persons for whom the justice finds there are reasonable grounds to believe that s/he has committed an indictable offence. However, this difference largely disappears in light of the fact that “charges cannot be laid unless there are reasonable grounds for believing that an offence has been committed” (Morales at para. 59).
[65] In Morales, section 515(6)(a) was challenged as being in violation of, inter alia, section 11(e) of the Charter, which provides that an accused person has the right “not to be denied reasonable bail without just case.”
[66] The court reviewed the nature of the right under section 11(e), noting that it contains two distinct elements:
Namely, a “reasonable bail” element and a “just cause” element. Reasonable bail relates to the terms of bail, while just cause relates to the grounds on which bail is granted or denied….
[There are] two factors which in my view are vital to a determination that there is just cause under s.11(e). First, the denial of bail must occur only in a narrow set of circumstances. Second, the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system (emphasis added) (paras. 35 and 38).
[67] The Supreme Court concluded that section 515(6)(a) did not violate section 11(e). Writing for the Majority, Lamer C.J.C. reasoned as follows:
[61] I am satisfied that the scope of s. 515(6)(a) is sufficiently narrow to satisfy the first requirement of just cause under s. 11(e). Section 515(6)(a) applies only to indictable offences. The number of accused who are charged with an indictable offence while on bail for another indictable offence is, hopefully, rather small. Furthermore, s. 515(6)(a) does not deny bail for all persons who have been charged with an indictable offence while on bail for another indictable offence, but rather denies bail only when these persons do not show cause that detention is not justified. Such grounds are sufficiently narrow to fulfil the first requirement of just cause under s. 11(e) (emphasis added).
[68] In Ashini, Joy J. considered this issue, and in particular the underlined passage in the preceding paragraph, in the context of determining the proper classification of a hybrid offence following a Crown election. The following comments of his are particularly helpful in the analysis:
65 Almost all offences in the Criminal Code are hybrid offences. It is actually difficult to find an offence that is solely a summary offence. Breaches of court orders and probation orders, mischief, common assault, assault causing bodily harm and assault with a weapon are all hybrid offences.
66 The reverse onus situation in section 515(6)(a) can only pass the threshold of constitutional validity if "indictable offence" has a more narrow meaning in the bail context in order to meet the constitutional test that denial of bail must occur only in a narrow set of circumstances.
69 The Supreme Court of Canada went on at paragraph 61 to state:
The number of accused who are charged with an indictable offence while on bail for another indictable offence is, hopefully, rather small.
70 If section 34(1) of the Interpretation Act turns every hybrid offence into an indictable offence, then that is certainly not the case. I would estimate that conservatively in Labrador about 75% of all bail hearings would result in reverse onus situations if this expansive, and somewhat disingenuous, definition of indictable offence applied.
[69] It is clear from his reasons that Joy J. is concerned about the presumption that all hybrid offences are indictable until the Crown elects to proceed summarily (see especially para. 64). However, in light of the reasoning of Fish J. in Dudley, this rule appears to be now well established. What is important in Ashini, however, is the assertion that the constitutionality of the reverse onus in section 515(6)(a) is based on the fact that it is narrowly circumscribed to apply only to indictable offences. This accords with the fundamental principle under section 11(e) that denial of bail must occur only in a narrow set of circumstances. A similar point was observed by Hill J. in R. v. Viollota, 2002 49650 (ON SC), [2002] O.J. No. 1027, 163 C.C.C. (3d) 507, where he stated that “the finding of constitutionality of the s.515(6)(a) reverse onus provision rested in large measure on its limitation to indictable offences only” (citation omitted; at para. 78).
Analysis
i. Whether the Justice erred in law
[70] The resolution of this issue depends on the proper interpretation of “indictable offence” in section 524(8)(b) of the Criminal Code. In particular, the question is whether the indictable nature of the offence is to be determined at the time of arrest or at the time of the section 524 hearing. This turns critically on whether a Crown election to proceed summarily on a hybrid offence may be said to change the character of the offence, such that it is no longer indictable in nature.
[71] I begin by considering the latter issue.
[72] I reiterate at the outset that, while the issue was not decided by the majority of the Supreme Court in Dudley, they noted that only one case, R. v. Connors (1998), 1998 12468 (BC CA), 121 C.C.C. (3d) 358 (B.C. C.A.), had found that an election to proceed summarily does not alter the indictable character of the offence (in the context of the Identification of Criminals Act). Justice Fish pointed out that other cases had reached the opposite conclusion, including Abarca. The situation in Abarca is in many respects analogous to the situation at hand. In both cases, the applicability of the provision at issue (fingerprinting in Abarca, a section 524 hearing here) requires as a precondition that the accused have committed an indictable offence. In both cases, the accused allegedly committed an offence that is hybrid in nature, and therefore deemed to be indictable until a Crown election is made. Finally, in both cases the defence took the position that a Crown election to proceed summarily would render the provision inapplicable to them. In Abarca, the Ontario Court of Appeal agreed with this position (although the issue was not squarely before the Court and therefore may be said to be obiter), stating that a Crown could not compel the appearance of the accused for fingerprinting if it elected to proceed by way of summary conviction.
[73] The thrust of the analysis in Dudley and Abarca lends support to the proposition that a Crown election to proceed summarily does, in fact, alter the deemed indictable nature of a hybrid offence for the purpose of a section 524(8) hearing.
[74] There are, in addition, three factors in this case that lead me to agree with this conclusion.
[75] First, the rules of statutory interpretation support this position. The cardinal rule of statutory interpretation is that the words of the legislation “are to be read in their entire context in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Centre for Addiction and Mental Health v. R., 2014 SCC 60 at para 14). In this case, section 524(8) merely refers to an accused having committed an indictable offence. A plain reading of these words, therefore, does not provide great assistance in determining whether a Crown election actually alters the character of the offence.
[76] The Interpretation Act also does not greatly assist in this regard: while it indicates that hybrid offences are deemed to be indictable (section 34(1)(a)), is also states that a person convicted of a hybrid offence on summary conviction shall not be considered to have been convicted of an indictable offence (section 34(1)(c)).
[77] Arguably, therefore, in the context of section 524(8), the phrase “indictable offence” can be interpreted as having more than one meaning.
[78] However, the context and purpose of section 524 is informative. The section deals with situations where an accused may have his/her prior release revoked, and thereby be detained pending trial. Additionally, the section deals with the exceptional situation in the bail context where the accused is subject to a reverse onus, and therefore must show cause why his/her detention is not justified.
[79] In Morales, the Supreme Court made it clear that the constitutional right to bail requires that denial of bail must occur only in a narrow set of circumstances. Further, the Court held that the reverse onus provisions of section 515(6)(a) were constitutionally valid because they were sufficiently narrow – applying only to accused persons who commit an indictable offence while on bail for another indictable offence.
[80] In this case, we are faced with a similar reverse onus bail provision to that in Morales. We are also faced with two competing interpretations of the phrase “indictable offence” – one that would include every hybrid offence, regardless of a Crown election, and another that would include only hybrid offences where no Crown election has been made or where the Crown has elected to proceed by way of indictment. The former interpretation would expand the reach of section 524 considerably more than the latter. It is clear, therefore, that the spirit and reasoning of Morales would militate in favour of the latter interpretation. This would narrow the circumstances leading to a denial of bail - and, importantly, a denial of bail on a reverse onus.
[81] This interpretation is also harmonious with section 34(1)(a) of the Interpretation Act. The result would be that every hybrid offence is deemed to be indictable until the Crown elects to proceed summarily – at which point the character of the offence becomes one of summary conviction. The appropriateness of this interpretation is strengthened when one considers section 34(1)(c), which indicates that a person convicted of a hybrid offence on summary conviction may be considered to have been convicted of a summary conviction offence. Indeed, it would be quite illogical to deem such a person to have been convicted of a summary conviction offence, while at the same time maintaining that s/he has committed an indictable offence.
[82] Further, adoption of this more restrictive interpretation accords fully with the well-established principle that, “in the penal context, courts must…ensure that any ambiguity is resolved in favour of the accused whose liberty is at stake” (R v. C.(S.A.), 2008 SCC 47 at para. 16).
[83] This principle is reinforced in this case by the second factor, which is that the consequences of a section 524(8) hearing for an accused are significant, and engage constitutional rights of liberty under section 7 of the Charter.
[84] An accused person who is detained under section 524(8) is thereby no longer eligible for enhanced credit for pre-trial custody, pursuant to section 719(3.1) of the Criminal Code.[^1] As a result, that accused person is liable to serve a longer time in custody than a similarly situated accused who did not receive a section 524 detention. A similarly situated accused may not have received a section 524 detention if:
a. s/he never received bail to begin with;
b. s/he received bail but was never alleged to have breached his/her recognizance or committed an indictable offence while on release;
c. s/he did breach his/her recognizance or commit an indictable offence while on release but s/he consented to his/her detention without proceeding to a show-cause hearing; or
d. s/he did not consent to his/her detention, but s/he was able to show cause and secure his/her release following a section 524 hearing.
[85] Thus, the accused’s liberty interest is clearly affected by this provision, which has the effect of increasing the overall length of his or her sentence to be served in jail (R. v. Saffarzadeh-Markhali, 2014 ONCA 627 at para. 66; R. v. Dinardo at para. 65).
[86] In light of the fact that the overwhelming majority of offences in the Criminal Code are now hybrid offences, the consequences of adopting the Crown’s position would be that the accused would thereby be potentially facing a section 524 hearing and detention anytime s/he is alleged to have committed anything but a pure summary conviction offence while on release.
[87] Of course, that is not to say that this would necessarily be an unjustifiable violation of section 7. Subject to a full constitutional hearing on the merits, it would certainly be open to Parliament to legislate that a section 524 hearing be triggered whenever the accused is alleged to have committed any offence while on release.
[88] However, the significant liberty interests engaged by section 524, and the fact that the Crown’s interpretation would mean considerably expanding the reach of section 524, militates in favour of choosing a more restrictive, but equally available, interpretation of the provision.
[89] This is further reinforced by the fact that the granting of enhanced credit is, first and foremost, a remedial measure, designed to compensate an accused for the prejudicial conditions of pre-trial custody. This point was summarized by Wein J. in R. v. Dinardo, 2015 ONSC 1804 at paragraphs 17 and 117-118 as follows:
Briefly, prior to the enactment of TISA, the Code imposed no restrictions on the reasons for giving enhanced credit, or on the rate at which credit could be given. At a minimum, offenders were given credit at a ratio of 1:1, in recognition of the fact that it would be unfair not to count time spent in pre-sentence custody towards an offender’s ultimate sentence. Almost always, however, courts granted enhanced credit in recognition of the fact that pre-sentence custody is more onerous than post-sentence custody in two respects:
Quantitatively, legislative provisions for parole eligibility and early release do not account for time spent in pre-sentence custody.
Qualitatively, detention remand centres ordinarily do not provide educational, training, or rehabilitative programs to accused persons awaiting trial. Additionally, “overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous.” (Summers at para. 28).
… [I]n Summers, the Supreme Court of Canada held that the qualitative and quantitative circumstances justifying enhanced credit can arise in virtually every case in which an offender spends time in pre-trial custody. While this might result in the default position (1:1) being applied less than the exception (1.5:1), the Court found that this was justified in part because:
Crediting a day in pre-sentence custody as a day served is insufficient to account for the full prejudicial circumstances of remand custody; enhanced credit accounts for both loss of eligibility for parole and early release (circumstances with quantitative impact) and the harshness of the conditions (circumstances with qualitative impact): para 49.
It is clear, therefore, that the granting of enhanced credit is not simply a benefit, but is a remedial measure aimed at compensating for the prejudicial circumstances experienced by offenders in pre-trial custody.
[90] Thus, the fact that a section 524 detention lengthens an accused’s overall period of incarceration by disentitling him/her to eligibility for enhanced credit, which is itself a remedial measure designed to compensate for the prejudicial conditions of pre-trial custody, lends support to resolving the ambiguity at hand in favour of the accused.
[91] The third factor that leads me to this conclusion is that, generally speaking, the increasing use of hybrid offences in the Criminal Code appears largely to be a result of the fact that the hybrid offence classification system is simply a tool of practical convenience. It allows an accused person to be charged with an offence at the time of arrest without having to determine, at that time, the relative seriousness of the charge. The Crown may take weeks or months to gather full disclosure and to review the file in depth before exercising its considerable discretion to proceed summarily or by way of indictment.
[92] Further, the use of this hybrid classification system is, necessarily, a recognition of the fact that an offence may be committed in many ways. Indeed, any single hybrid offence can encompass criminal acts that may be extremely serious on one end and relatively minor on the other. By employing a hybrid classification system, Parliament has enabled the Crown to determine which criminal acts warrant the more strenuous procedures and penalties available on indictment, relative to summary conviction.
[93] It seems to me that it would be unfair to use such a tool of practical convenience against the accused, so that s/he is caught by a provision such as section 524(8) regardless of the fact that the Crown may have determined that the offence was a relatively minor one that warranted proceeding summarily.
[94] The very fact that section 524(8) specifies that the offence which the accused is alleged to have committed while on release must be an indictable one implies that Parliament intended to capture accused persons who committed offences of a relatively serious nature. A Crown election to proceed summarily implies that the offence that the accused allegedly committed is, relatively speaking, on the less serious end of the scale. The fact that the Crown election does not occur at the time of arrest does not alter the basis for the election to proceed summarily. It is simply a function of limited institutional and informational resources. The Crown requires time to receive and review all the relevant information before deciding on the matter.
[95] It is therefore not only fair, but apparently more harmonious with Parliament’s intent to adopt the more restrictive interpretation of “indictable offence” in this case.
[96] For all these reasons, I conclude that, for the purpose of a section 524 hearing, a Crown election to proceed summarily means that a hybrid offence is no longer deemed to be indictable. As a result, in such circumstances, this precondition for the applicability of the section is no longer met.
[97] I now consider the question of whether the indictable nature of the offence is to be determined at the time of arrest or at the time of the section 524 hearing itself.
[98] I begin by considering the wording of the provision, which requires that the accused’s release be revoked “where an accused… is taken before the justice and the justice finds that there are reasonable grounds to believe that the accused has committed an indictable offence....”
[99] Assuming that a Crown election to proceed summarily has already occurred, the plain meaning of section 524(8) clearly implies that it is the nature of the offence at the time of the hearing that is relevant. The justice is not being asked to find that an accused was arrested for an offence punishable by indictment, or even that an accused was arrested for an indictable offence; rather, the justice is being asked to find that the accused has committed an indictable offence. Where the Crown is proceeding summarily – which I have already determined alters the nature of the offence - the accused cannot be said to have committed an indictable offence.
[100] Furthermore, to interpret the provision to say that the operative time is the time of arrest would mean that section 524 is engaged whenever an accused is alleged to have committed any hybrid offence while on release, regardless of a subsequent election to proceed summarily. At the time of arrest on a hybrid offence, the offence will always be deemed indictable. This would render the preceding analysis and conclusion – that a Crown election to proceed summarily alters the nature of the offence – entirely redundant.
[101] It would also necessarily run afoul of all of the factors (discussed above) that militated in favour of finding that a Crown election alters the nature of the offence: 1) that denial of bail must occur in a narrow set of circumstances; 2) that the ambiguity should be resolved in favour of the accused because of the significant liberty interests at stake; and 3) that fairness and the intent of Parliament seem to dictate that the hybrid classification system not be used against the accused.
[102] Finally, such an interpretation as that advocated by the Crown would admit the possibility of a section 524 hearing being held despite the fact that the charges at issue had been withdrawn, or the accused had been acquitted of the charges. If the operative time is the time of arrest, the Crown could simply proceed to a section 524 hearing on the basis that, at the time of arrest, the accused was alleged to have committed an indictable offence while out on bail. This is clearly an untenable position, but one which nonetheless would follow from adopting this interpretation.
[103] For these reasons, I conclude that, for the purpose of a section 524 hearing, the indictable nature of the offence is to be determined at the time of the hearing and not at the time of arrest.
Application
[104] In this case, the justice of the peace was alerted to the fact that the Crown was possibly proceeding summarily on the charges the accused allegedly committed while on release. However, the justice did not go on to ascertain whether this was, in fact, the case. Instead, he appears to have relied on the Crown’s submission that a Crown election would be irrelevant to the matter because the operative time is the time of arrest. The Crown in this case has advanced the same position.
[105] I find that this was an error on the part of the justice of the peace. His jurisdiction to run a section 524 hearing and to detain the accused thereunder was predicated on a finding that the accused committed an indictable offence while on release. While I do not say that there was any obligation on the Crown to have made an election at that point, the applicant’s defence counsel on the Kitchener criminal charges had sent a letter to the defence indicating that the Kitchener charges may be proceeding summarily. The fact that the defence raised this at the outset of the hearing meant that there was uncertainty as to whether there was jurisdiction for the justice to hold a 524 hearing.
[106] At that point, the Crown was obliged to address the issue. If no election had been made, the offence would have continued to be deemed indictable and the hearing could have proceeded. If an election had been made to proceed by way of indictment, the same result would apply. If, however, an election had, in fact, already been made to proceed summarily, the hearing could not proceed.
[107] As it turns out, the Crown had not elected to proceed summarily. Therefore, the end result would have been the same. However, this does not change the fact that the 524-detention order was made without the court ascertaining its jurisdiction to make the order. Accordingly, the order was made without jurisdiction.
[108] The application is therefore granted. The section 524 order is vacated. The result is that the accused is no longer disentitled to enhanced credit for any time spent in pre-trial custody.
[109] On consent of both counsel, the accused is hereafter ordered detained pursuant to section 523 of the Criminal Code, pending sentencing.
ii. Whether the Justice’s decision was clearly inappropriate
[110] The applicant has also contested the merits of the justice’s decision to detain under section 524. In light of my ruling, it is unnecessary for me to consider this ground of the application.
[111] I thank both counsel for their helpful submissions on this complex issue.
Coats J.
Released:June 15, 2015
CITATION: R. v. Webley, 2015 ONSC 3857
COURT FILE NO.: 176/13
DATE: 20150615
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
MERVIN WEBLEY
Applicant
Ruling on APPLICATION FOR BAIL REVIEW UNDER SECTION 520 OF THE CRIMINAL CODE
Coats J.
Released: June 15, 2015
[^1]: I acknowledge that at least one court in our jurisdiction has held section 719(3.1) to be unconstitutional in this regard (see R. v. Dinardo, 2015 ONSC 1804), but this factor continues to hold weight, as our Court of Appeal has not yet determined the matter.