Court File and Parties

COURT FILE NO.: CR-18-101 (Kingston) DATE: 20200403 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Daniel Joseph Cook

BEFORE: Mew J.

COUNSEL: Elisabeth Foxton, for the Crown Brian Callender, for the Defendant

HEARD: 3 April 2020 (in writing)

Publication Restriction

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

Endorsement

[1] Daniel Cook is charged on an eleven-count indictment with what might generically be described as domestic violence offences. He has pleaded guilty to one count of aggravated assault. The trial of the other charges is ongoing before Mr. Justice Tranmer, sitting without a jury.

[2] On 15 March 2020, Chief Justice Morawetz ordered the adjournment, due to the urgent public health crisis caused by COVID-19, of virtually all matters scheduled to be heard between 17 March 2020 and 1 June 2020. As a result, the part-heard trial in this matter is on hold until at least 2 June 2020.

[3] Only certain matters deemed to be urgent are being heard by the court at this time, and even then, hearings are to be conducted by telephone or video conference. Local Administrative Justices are responsible for determining whether matters are urgent.

[4] Mr. Cook has been in custody since he was charged. He has not previously applied for bail.

[5] On 24 March 2020, defence counsel submitted a request to the court to hear an application by Mr. Cook for bail. Reference was made to the increased risks to health, as a result of the COVID-19 virus, faced by persons in custody and, in particular to the comments of Copeland J. in R. v. J.S., 2020 ONSC 1710, at paras 18-19.

[6] Tranmer J. is the Local Administrative Justice (Criminal & Civil) for Kingston. He was concerned about the appearance of conflict if he made a determination on the question of whether the defendant’s request for a bail hearing was “urgent”. He therefore delegated that task to me with the expectation that if I concluded that the urgency requirement was met, I would hear the application for bail.

[7] In view of the possibility that, because to the current public health crisis, it may be months – perhaps many months – before the trial resumes, during which time the defendant will remain in custody, I was satisfied that the proposed application meets the requirement for urgency.

[8] The question then arose as to who should hear the substantive bail application. The defence says it should be Justice Tranmer. The Crown says it should not.

[9] The defence relies on section 523(2)(a) of the Criminal Code, which, it is argued, empowers a trial judge to make any order provided for in Part XVI of the Code for the detention or release of the accused until his trial is completed that the judge considers to be warranted. This section has been described as “as a deliberate legislative choice to confer upon the trial judge the authority to alter an accused's judicial interim release status as trial proceedings unfold”: R. v. Passera, 2017 ONCA 308, at para. 12.

[10] The Crown counters that Tranmer J. should not hear the application because of the increased risk of a mistrial, depending on what evidence and other circumstances arise on the bail hearing that, as trial judge he would not otherwise hear about.

[11] Furthermore, in circumstances where an accused has not previously sought judicial interim release, the Crown argues that the application should be brought in the Ontario Court of Justice, citing R. v. Watts, 2014 ONSC 6246, as authority.

[12] In Watts, following his committal for trial in the Superior Court, the accused applied for bail for the first time. His trial was not scheduled to commence until several months later. C.M. Speyer J. held that it was the function of the Ontario Court of Justice to conduct a bail hearing, in the first instance, where no determination of detention or release has previously been made, irrespective of whether an indictment had been filed in the Superior Court. In doing so, he noted, at para. 12, that:

[Section] 515 confers jurisdiction on justices to conduct bail hearings. Parliament chose not to gives "judges", that is superior court judges for the purpose of Part XVI of the Code, plenary power to grant bail for non-s.469 offences. This thereby signifies Parliament's preference to having original bail hearings conducted in the provincial courts. Concomitantly, Parliament gave jurisdiction to Superior Court judges under s. 520 of the Code to review the decisions of justices.

[13] I find that Watts is readily distinguishable on its facts. In the present case, the trial has already commenced. Section 523(2) of the Code therefore becomes engaged. The effect of the position taken by the Crown would be to deny the trial judge the authority to consider and determine bail for accused being tried before him or her. I cannot reconcile that position with the legislative choice articulated in Passera. The reference to “being tried” surely renders the trial judge the reviewing authority after trial has commenced.

[14] I have therefore concluded that, having determined the question of urgency in favour of proceeding to a hearing, the substantive application for bail should be referred back to the trial judge. In doing so, I make no comment on the Crown’s argument about the increased potential for a mistrial if Justice Tranmer hears the application. To do so would encroach on territory best left to my colleague to traverse.

Graeme Mew J. Date: 3 April 2020