R. v. Martyn, 2017 ONSC 5430

CITATION: R. v. Martyn, 2017 ONSC 5430

COURT FILE NO.: 65/17

DATE: 2017-09-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FRANK MARTYN

A. Khoorshed, for the Crown

W. Richard, for Mr. Martyn

HEARD: July 14, 2017

REASONS ON S.521 APPLICATION

gibson J.

[1]

Introduction

On July 14, 2017, I heard and determined a s.521 bail review application brought by the Crown. Given the pressing nature of the matter, I delivered brief reasons for my decision on that date, indicating that I would provide more fulsome reasons in due course. These are those reasons.

[2]

Background

Frank Martyn was charged with two counts of assault, one count of theft under $5,000, and two counts of breach of probation. These offences were alleged to have occurred on September 27, and October 11, 2015. The alleged victim was Mr. Martyn’s domestic partner, Tabitha O’Neill.

3The police were unable to locate Mr. Martyn at the time the charges were laid, and an arrest warrant was issued for him on October 13, 2015.

4The police ultimately learned of Mr. Martyn’s whereabouts in March 2017. He was arrested outside of a motel in Niagara Falls at approximately 8:00 p.m. on Friday March 31, 2017.

5Mr. Martyn was brought to a weekend bail court in Hamilton on Saturday April 1, 2017. The presiding Justice was Justice of the Peace L. Ross.

6The original signed warrant was before the Court. There was no copy of the signed information in relation to the charges that were the subject of the warrant, as they were filed in the Court office of the Milton Courthouse, which is closed on Saturdays. A photocopy of the unsigned information was before the Justice of the Peace.

7Justice of the Peace Ross noted that in her view the information “was not proper before this court.” Without holding a bail hearing, or making any inquiry, the Justice of the Peace released Mr. Martyn on his own Undertaking with only the statutory conditions.

8On the s. 521 application before me, the Crown submitted that, by releasing the accused Frank Martyn without seeking submissions on terms or having a show cause hearing, the Justice of the Peace acted in excess of her jurisdiction and erred in principle. The Crown sought an Order vacating the Judicial Interim Release Order made by the Justice of the Peace, and sought a further order for Mr. Martyn’s detention. On the hearing of the application defence counsel agreed with the submission of the Crown that the Justice of the Peace had erred and that an order vacating her Judicial Interim Release Order should be made.

[9]

The Law on Bail Review

As directed by the Supreme Court of Canada in R. v. St.-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, a superior court judge must determine whether it is appropriate to exercise his or her power of review on a s.520 or 521 bail review application. Exercising this power will be appropriate in only three situations: where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case; where the impugned decision contains an error of law; or, where the decision is clearly inappropriate.

10In the present case, as the Crown contended and the Defence concurred, I found that by releasing the Respondent Mr. Martyn on April 1, 2017, without seeking submissions on terms or having a show cause hearing, the Justice of the Peace acted in excess of her jurisdiction and had erred in principle. It was therefore appropriate to exercise my power of review. I vacated the Judicial Interim Release Order, for the reasons that I shall elaborate further.

11The relevant provisions of the Criminal Code for the present purposes include:

503 (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) or into whose custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and

(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,

unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,

(c) the peace officer or officer in charge releases the person under any other provision of this Part, or

(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so releases him.

(2) If a peace officer or an officer in charge is satisfied that a person described in subsection (1) should be released from custody conditionally, the officer may, unless the person is detained in custody for an offence mentioned in section 522, release that person on the person’s giving a promise to appear or entering into a recognizance in accordance with paragraphs 498(1)(b) to (d) and subsection (2.1).

(2.1) In addition to the conditions referred to in subsection (2), the peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify the peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; or

(h) to comply with any other condition specified in the undertaking that the peace officer or officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.

(2.2) A person who has entered into an undertaking under subsection (2.1) may, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under subsection 515(1) to replace his or her undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.

(2.3) Where a person has entered into an undertaking under subsection (2.1), the prosecutor may

(a) at any time before the appearance of the person pursuant to a promise to appear or recognizance, after three days notice has been given to that person, or

(b) at the appearance,

apply to a justice for an order under subsection 515(2) to replace the undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.

(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested

(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or

(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may

(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or

(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.

(3.1) Notwithstanding paragraph (3)(b), a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3), pending the execution of a warrant for the arrest of that person, be released

(a) unconditionally; or

(b) on any of the following terms to which the prosecutor consents, namely,

(i) giving an undertaking, including an undertaking to appear at a specified time before the court that has jurisdiction with respect to the indictable offence that the person is alleged to have committed, or

(ii) entering into a recognizance described in any of paragraphs 515(2)(a) to (e)

with such conditions described in subsection 515(4) as the justice considers desirable and to which the prosecutor consents.

(4) A peace officer or an officer in charge having the custody of a person who has been arrested without warrant as a person about to commit an indictable offence shall release that person unconditionally as soon as practicable after he is satisfied that the continued detention of that person in custody is no longer necessary in order to prevent the commission by him of an indictable offence.

(5) Notwithstanding subsection (4), a peace officer or an officer in charge having the custody of a person referred to in that subsection who does not release the person before the expiration of the time prescribed in paragraph (1)(a) or (b) for taking the person before the justice shall be deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or

(b) any other proceedings, unless in such proceedings it is alleged and established by the person making the allegation that the peace officer or officer in charge did not comply with the requirements of subsection (4).

505 Where

(a) an appearance notice has been issued to an accused under section 496, or

(b) an accused has been released from custody under section 497 or 498,

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.

507 (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider, ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and

(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence

515 (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.

(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released

(a) on his giving an undertaking with such conditions as the justice directs;

(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or

(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.

(2.1) Where, pursuant to subsection (2) or any other provision of this Act, a justice, judge or court orders that an accused be released on his entering into a recognizance with sureties, the justice, judge or court may, in the order, name particular persons as sureties.

(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.

(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.

(13) A justice who makes an order under this section shall include in the record of the proceedings a statement that he or she considered the safety and security of every victim of the offence when making the order.

[12]

Jurisdiction

The Court possesses dual jurisdictions: jurisdiction over the person, and jurisdiction over the charge. These jurisdictions exist independent of each other, though they are commonly exercised at the same time. Each time that an accused person appears in court, the Justice compels his or her appearance at a future date (exercising jurisdiction over the person) and simultaneously remands the charging documents (the charging process) at the same time.

13When a police officer arrests a person without a warrant, they create jurisdiction over the person on the basis of his or her belief in the existence of reasonable grounds to believe that an offence has been committed. The charge is not laid until the officer’s belief is confirmed by a Justice. At that point (pursuant to s.505), the Justice confirms jurisdiction over the person and creates jurisdiction over the charge when he or she signs the jurat on the information.

14Where there is an arrest warrant issued, the Justice (pursuant to s.507) creates both jurisdiction over the person and a charge (a sworn information) at the same time, when he or she makes that determination that reasonable grounds exist to believe that an offence has been committed. Where that determination is made, the section directs that the Justice shall do both of these things. Paragraph 507(1)(b) states that the Justice “shall” issue a summons or warrant, and that the Justice shall compel the person to come before the Court to “answer to a charge.” A charge requires a sworn information.

15Thus, where a properly issued warrant is before the Court, there must be an inference that the issuing Justice followed the law and signed the information. To assume otherwise runs counter to the presumption of regularity and presumes that another Court failed to follow the law. Courts are bound to presume that the law has been followed: R. v. McNamara (1982), 1982 CanLII 2157 (ON CA), 36 O.R. (2d) 308 (Ont. C.A.).

16A Court’s jurisdiction to deal with a charged accused person is dependent on the existence of an information, not its physical presence before the Court. The law is clear that it is an error to find a loss of jurisdiction where the information is known to exist, though it might not be in the courtroom : R. v. Veltri, [1986] O.J. No. 894 (Ont.C.A.); R. v. Nedelkof, [1998] O.J. No. 4493 (Ont. Ct. Gen. Div.).

17Therefore, as the Crown correctly submits in this case, because the very existence of a signed warrant compels the conclusion that a signed information (a charge) exists, the Court must find itself in the position to act on an information that it knows to exist.

18The appearance of a person arrested pursuant to a warrant before a Justice is governed by s.503 of the Criminal Code. This section provides no option to release the accused person that is at the sole discretion of the Court. If the police do not release, and the prosecutor does not consent to release, the only option available to the Court is to proceed to consider the bail provisions set out in s.515.

19Subsection 515(1) requires that, while the Justice is empowered to release the accused, and in fact release is the presumptive option, that cannot occur unless and until the prosecutor has been given a reasonable opportunity to show cause justifying a more restrictive option than an undertaking without conditions.

20As a Justice of the Peace is a statutory (or “inferior”) Court, he or she may only act as empowered by statutory authority. Since the Criminal Code provides no authority to independently release, other than after giving the prosecutor a reasonable opportunity to show cause by the mechanism of a bail hearing, the refusal to act in the absence of the original signed information being physically in court would mean that the Court would be compelled to illegally hold an accused person who was entitled to a bail hearing.

21The correct course of action in the present case was therefore to proceed on the basis that a valid information existed. In the event that the existence of a valid information was challenged, the accused person might be held in custody pending that determination, as the Justice of the Peace lacks the jurisdiction to do otherwise. The issue might be determined by a Judge of the Superior Court in the context of a habeus corpus application.

22In addition to erring by releasing Mr. Martyn without any hearing or inquiry having been conducted, the Justice of the Peace also erred in failing to follow the mandatory direction of s.515(13), which requires that the Justice who releases shall indicate consideration of the safety and security of any victim of the offence. Beyond having failed to indicate that consideration, the record demonstrates that the Justice of the Peace failed to even hear or become aware of the allegations; in effect, the very existence of a potential victim was not even considered.

Disposition in this case

[23]

Disposition in this case

Pursuant to s.521(8)(e), it then fell to me to make any other order in s.515 that I considered warranted.

24At paragraph 67 of R. v. Antic, 2017 SCC 27, Wagner J. for the Court provides extensive guidance regarding the principles and guidelines which should be adhered to when applying the bail provisions at a contested hearing.

25In the present case the complainant Ms. O’Neill has recanted her complaint, and given evidence before the Court that she does not fear the accused person Frank Martyn. She requested the Court not impose a no-contact order, as this would have significant consequences which she describes as “profound and catastrophic.”

26I am sensitive to the policy concerns articulated by the Crown regarding recanting complainants in domestic assault cases. However, on the evidence before me, I would concur with the Defence submission that the risk is minimal in this instance, and that there is not a substantial likelihood that the accused will interfere with the administration of justice. The retention of Mr. Martyn in custody was not required on any of the primary, secondary or tertiary grounds in s.515(10).

27The Court Orders that Frank Martyn be released on a recognizance with his father, Donald James Martyn as surety, liable for $5,000 cash without deposit. Frank Martyn shall keep the peace and be of good behaviour, remain within the Province of Ontario, and notify the Halton Region Police Service of any change in his address or employment or occupation. He shall not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance, until dealt with according to law.

Gibson J.