Court File and Parties
COURT FILE NO.: CR-16-70000272-00M0 DATE: 20160909 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JOSHUA JACKSON Defendant
Counsel: Michael Feindel, for the Crown/Respondent Jesse DiCecca, for the Defendant/Applicant
HEARD: September 7, 2016
B.A. ALLEN J.
REASONS FOR DECISION
(Application for a Writ of Certiorari with Mandamus in Aid)
BACKGROUND
[1] This matter comes before me as an application for an order in the nature certiorari to quash an order made on August 5, 2016 by a judge of the Ontario Court of Justice, Judge Brown.
[2] By way of brief background, the Applicant was charged on May 14, 2014 with an indecent act and assault with two counts of intent to resist arrest (“the application charges”). He was found fit to stand trial on August 22, 2014 and released on his own recognizance. On his trial date, June 3, 2015, he was found unfit to stand trial. He was ordered to be assessed by CAMH on an out-of-custody basis to determine what the proper disposition should be. The Applicant did not attend for the assessment and a bench warrant with discretion was issued extended to September 14, 2015.
[3] On September 12, 2015, the Applicant was arrested for obstruction of justice and was held for a show cause hearing. On September 14, 2015, the Crown brought a Criminal Code, s. 524 application to revoke his bail on the application charges. The Applicant received further charges for breach of recognizance for failure to report to the bail program. Following a hearing on September 14, 2015 to determine his fitness to stand trial, an Ontario Court of Justice judge found him unfit to stand trial. On November 13, 2015, he was found fit to stand trial. On November 16, 2015, after a contested show cause hearing, a justice of the peace ordered a global release on all charges without sureties and with conditions.
[4] A new trial date of July 25, 2016 was set for the application charges and the other charges were remanded to mental health court with the view to diverting them under the mental health diversion program. The Applicant was not present at court on July 25, 2016. After hearing from counsel and given the history of the case, on July 29, 2016, the date intended for his obstruction and failure to comply matters, the presiding judge remanded the matter to Room 102 at Old City Hall to the Mental Health Court.
The Proceeding before Judge Brown
[5] The Applicant appeared at Room 102 on August 5, 2016 on all outstanding charges. Given the Applicant’s appearance, the Crown indicated she had fitness concerns. Judge Brown directed the Applicant be assessed by the court psychiatrist as to his fitness to stand trial.
[6] Judge Brown ordered the Applicant to be assessed under s. 672.1(a) of the Code for fitness to stand trial on an in-custody basis as allowed by s. 672.16(1)(b) of the Code, which decision is not disputed by the parties. Judge Brown stated that she recognized his pattern of leaving court before completion and that he ran out of the courtroom and the court officers had to pursue him. She stated her reluctance on a fitness hearing to deal with an out-of-custody accused by placing him in custody. She noted she was going to place him in custody until the assessment. Over the lunch break on August 5, 2016, the Applicant was assessed by the court-appointed psychiatrist. At the hearing, the psychiatrist testified that the Applicant was unfit to stand trial. The Applicant remained in custody while the fitness hearing proceeded. The parties do not dispute this period of custody. A verdict of unfit to stand trial was reached by Judge Brown.
[7] On August 5, 2016 following the fitness determination, as the Crown is entitled to under s. 672.58 of the Code, the Crown gave written notice of an intention to seek a treatment order. The Applicant’s counsel did not accept the short notice and requested an adjournment until August 8, 2016, which adjournment Judge Brown granted but made it returnable on August 9, 2016 when she was available.
[8] Judge Brown revoked the Applicant’s bail on August 5, 2016. The following are Judge Brown’s comments on the record in relation to the bail revocation:
CLERK REGISTRAR: Is bail being revoked Your Honour?
The COURT: Yes, his bail’s being revoked. I put him in custody this morning. I’m going to ask, just so you know, Ms. Moran, because, I think I am very concerned about your client right now, that in addition to being seen by medical attention, I’m going to ask if [indecipherable] unit of CAMH can see him when he’s at Toronto South so they can monitor his condition.
MS MORAN: Thank Your Honour.
THE COURT: And although I indicated earlier today, I am going to repeat it, that the reason why I revoked bail and put him in custody is the concern that the Court has that he does not come to court necessarily when he is supposed to come to court and when he does come to court he often leaves the courtroom and doesn’t come back, and I know that, having been the judge in this court and having seen him at Old City Hall over the last number of months, so it’s my personal knowledge of him in the Court that I’m relying on making a decision with respect to the bail being cancelled and putting him in custody. Thank you.
[August 5, 2016 transcript at p. 31 line 20 to p. 32, line 11]
[9] The treatment order disposition hearing proceeded on August 9, 2016. The Applicant was ordered on an in-custody basis to the maximum 60-day treatment period for the purpose of making him fit to stand trial. September 9, 2016 has been set for a mid-point status hearing to determine if the Applicant is fit for trial. The defence has no opposition to the Applicant being ordered in custody pursuant to the treatment order.
[10] Judge Brown provided no legislative or other authority for her revocation of the Applicant’s bail. She provided only practical reasons and her own observations as to why she thought it best to place him in custody.
THE ISSUE
[11] It is the Applicant’s position that Judge Brown did not have the jurisdiction to order the bail revocation. He seeks a writ of certiorari quashing order with mandamus in aid directing the Applicant’s release.
THE LAW AND THE PARTIES’ POSITIONS
The Applicant
[12] The parties agree that the pertinent provision to be considered is s. 523(2)(a) of the Code. This provision states:
Order vacating previous order for release or detention
S. 523(2)(a)
(2) Despite subsections (1) to (1.2),
(a) the court, judge or justice before which or whom an accused is being tried, at any time, [emphasis added]
[13] Extracting context from s. 523(1)(a) and from the conclusion of the provision, subsection 523(2)(a) authorizes “the court, judge or justice before whom an accused is being tried, any time, on cause being shown”, to vacate a recognizance and to make any new order under Part XVI regarding bail that the court considers warranted “until his trial is completed”.
[14] The Applicant argues Judge Brown lacked jurisdiction under s. 523 for two main reasons. Firstly, according to the Applicant’s interpretation, “before which or whom an accused is being tried” would require the Applicant’s matter, the issue of his fitness for trial, to be before the court, judge or justice that is conducting the Applicant’s trial. By trial, the Applicant submits, the legislation is referring to the trial on the ultimate question of the Applicant’s guilt or innocence.
[15] Secondly, the Applicant posits that the procedure under s. 523(2)(a) requires a party to show cause why the bail order should be vacated. In the case at hand, the Crown and the defence were given no opportunity to show cause why the order should or should not be changed. The Applicant argues there is no jurisdiction under s. 523(2)(a) for Judge Brown to do as she did and make an order revoking bail on her own motion without requiring cause to be shown by either party.
[16] The Applicant’s more substantial position lies in his first argument.
[17] There is scant case law or authority interpreting the words “is being tried”. The Applicant relies on a case decided in 1996 by the British Columbia Supreme Court. That case held that the legislative history of s. 523(2)(a) “supports the view that it only becomes available once the trial has commenced to the judge before whom the accused is actually being tried”: R. v. McCreery, [1996] B.C.J. No. 2018, at para. 9 (B.C.S.C.); see also R. v. Durrani (2008), 2008 ONCA 856, 242 C.C.C. (3d) 103 (Ont. C.A.). The court goes on later to summarize its reasoning:
Section 523(2)(a) is clear that it can only be invoked by the judge before whom the accused “is being tried”. It seems to me that the looser interpretation of “trial” is being used here - the one that contemplates that a hearing will be conducted immediately prior to the jury panel being called. Given the legislative history of the section, it does not seem reasonable to argue that it contemplates a hearing months before jury selection and the “actual trial” are to begin. The goal behind the section was to give the trial judge tremendous latitude to make such orders as are necessary to ensure that the trial runs smoothly.
[18] The original purpose for the Applicant’s appearance on August 5, 2016 was simply to have his matter spoken to. It was not anticipated that a fitness to stand trial hearing would be held. It was the Crown’s concern about the accused and the accused’s presentation that day that alerted the court to the need to enquire into his fitness for trial. So the matter at that point was in the very early stages. The Applicant had not been arraigned. No date had been set for trial and the Crown had made no elections.
[19] The Applicant makes a further point he drew from the judge’s remarks in McCreery that were adopted by Gary Trotter in The Law of Bail in Canada. Trotter points out that orders made under s. 523(2)(a) are not reviewable under sections 520, 521 or 680 of the Code. His analysis promotes the view that the purpose for s. 523(2)(a) involves the conduct of the trial proper and does not contemplate it applying to pre-trial motions and proceedings.
[20] Trotter remarks that the absence of a review mechanism for s. 523(2)(a) allows the trial judge the latitude to make revocation orders free from appellate interference: [Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell: 2010) at p. 8-58.]. The court, the judge or the justice, before whom a matter is being tried at the trial proper, has the authority to vacate a bail order, at any time before the trial is completed, upon cause being established, or any order made pursuant to the interim release provisions under the Code.
[21] The Applicant also raised a concern that has serious consequences for his liberty rights upon the return of the matter at the mid-point of treatment on September 9, 2016 and at the completion of the 60-day treatment period on October 9, 2016. What is the status of Judge Brown’s order revoking bail if at the mid-point or on completion of treatment the Applicant is found fit to stand trial; or, even if he is found unfit to stand trial, what is the status of the revocation? Given that an order under s. 523(2)(a) is not reviewable, is the Applicant to simply remain in custody? There are no provisions to address this circumstance in the judicial interim release provisions in the Code. This, I find, lends further support for the view that s. 523(2)(a) does not confer power on a judge on their own motion to vacate a bail order at a fitness to stand trial hearing.
The Respondent’s Position
[22] The Respondent makes a number of arguments.
[23] If I understood this argument, the Respondent submits that the assessment of the Applicant on August 5, 2016 was not yet concluded on that day and a further assessment would be required which, in the Respondent’s view, authorized the detention from August 5 to August 9, 2016. As noted earlier, on her own motion, Judge Brown ordered bail revoked on August 5, 2016 without providing authority for her order out of concern he would not attend court.
[24] I find that even if the August 9, 2016 hearing is considered a continuation of the proceeding began on August 5, 2016, I see no authority under s. 523(2)(a) for Judge Brown to revoke bail and detain the accused as a means to ensure his attendance at court. There is no authority for Judge Brown to do this on her own motion and without show cause by the parties. There are other remedies within the court’s jurisdiction that might have been employed to this end, such as the issuing of a bench warrant for his arrest under s. 524 of the Code.
[25] The Respondent makes a further argument based on the inherent jurisdiction of a court or tribunal to control its own process to make such orders as are necessary to exercise control. The Respondent posits that pursuant to that power it was available to Judge Brown under s. 523(2)(a) to make the order revoking bail in order to control the fitness process and to ensure the Applicant’s attendance and the completion of the proceeding.
[26] It is common ground that courts have the inherent jurisdiction to control their proceedings to ensure convenience and fairness in the proceeding, to avoid steps being taken that would make the proceeding inefficient and to prevent abuses of process. Judge Brown did not state her authority for revoking bail. But the law is clear that inherent jurisdiction does not avail a judge of limitless authority. This is an extraordinary judicial power and as such should be exercised only sparingly and in clear cases. As well, of course, inherent jurisdiction cannot be exercised so as to conflict with a statute or rule or to make new rules of substantive law: Baxter Student Housing Ltd. et al. v. College Housing Co-operative Ltd. et al., [1976] 2 SCR 475, at p. 480 (S.C.C.); Montreal Trust Company et al. v. Churchill Forest Industries (Manitoba) Limited, [1971] 4 W.W.R. 542, at p. 547 (Man. C.A.).
[27] This means that a judge’s inherent jurisdiction cannot be exercised so as to allow her to make an order not otherwise available to her under a statute or rule. Nor can a judge in using the power make an order that results in creating a new rule of substantive law. So, on the view that s. 523(2)(b) of the Code is not applicable to a fitness for trial hearing and acknowledging that Judge Brown’s order had the serious implication of denying the Applicant’s substantive liberty rights, Judge Brown would not have been empowered, pursuant to her inherent jurisdiction power, to make the order revoking bail.
[28] The Respondent also refers to sections that address the authority of a judge in respect of determinations on fitness for trial before a verdict is rendered (s. 672.23.1), before the accused is indicted before the jury (s. 672.26(a)) and after the accused has been indicted before the jury (s. 672.26(b)). The Respondent argues that these provisions apply to a judge in a fitness for trial hearing, such as the one in the case at hand, that was not held in the context of a trial proper but that rather was held before a trial date had even been set and elections made.
[29] The language in those provisions can only be reasonably regarded as pointing to various points in the trial proper. The verdict reasonably refers to the verdict of guilt or innocence at trial. The timing of indictment of the accused before the jury is a consideration at a trial proper for a trial judge.
[30] I accept the Applicant’s position that the language and intent of s. 523(2)(a) is clear that the use of the words “before whom an accused is being tried” refers to a trial judge. It is a trial judge presiding over the trial proper that has the jurisdiction at any time, upon cause being shown, to vacate a bail order.
[31] The Respondent’s arguments have not convinced me that Judge Brown had the power to revoke the Applicant’s bail.
CONCLUSION
[32] For all the reasons set out above, I find Judge Brown lacked the jurisdiction to revoke the Applicant’s bail.
DISPOSITION
[33] The Court hereby: a) orders a writ of certiorari with mandamus in aid; b) orders that the matter be remitted back to the Ontario Court of Justice; and c) directs that the Applicant, Joshua Jackson, be released on the same terms as the recognizance dated November 16, 2015.
B.A. ALLEN J.
Released: September 9, 2016