R. v. G.V., 2021 ONSC 5276

COURT FILE NO.: CR-21-60000174-00BR

DATE: 20210729

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

-and-

G.V.

Ms. Rhianna Woodward and Mr. Craig Coughlan, for the Crown

Mr. Chris Hynes and Ms. Rosalea Thompson, for the Defendant

HEARD: July 28, 2021

Justice J. Copeland

ENDORSEMENT ON JURISDICTIONAL ISSUE

Introduction

1On July 28, 2021, I heard a s. 525 review in relation to Mr. V.’s detention. At the close of the hearing, I gave oral reasons dismissing the review, and finding that Mr. V’s detention continues to be justified under the secondary ground. I also gave a direction pursuant to s. 525(4) that counsel explore with the Ontario Court of Justice if earlier trial dates can be scheduled.

2There was a preliminary issue in this application about whether the Superior Court had jurisdiction to hear the s. 525 review, because Mr. V. is also concurrently detained on a keep fit order under s. 672.29 of the Criminal Code on the same sets of charges. When I dismissed the s. 525 review, I held that the court does have jurisdiction to conduct the s. 525 review in these circumstances. I advised that I would provide a written endorsement setting out my reasons for this conclusion. These are my reasons.

Background

3The relevant history of this issue is as follows. Mr. V. is facing three sets of charges alleged to have been committed between July and September 2020. The charges involve allegations of criminal harassment and breach of recognizance, all involving the same complainant. Mr. V. was ordered detained on the secondary ground, following a contested hearing, on September 11, 2020. Mr. V.’s trial on all three sets of charges was originally scheduled for March 2021. However, the trial did not proceed, as Mr. V. was found unfit to stand trial on February 23, 2021. A treatment order was made for a period of 60 days, pursuant to which he was treated with anti-psychotic medication. Upon completion of the treatment order, Mr. V. was ordered detained in hospital on a keep fit order because there were reasonable grounds to believe that he would become unfit if he were to leave hospital. That order was made on May 21, 2021. I note that none of the transcripts of the hearings in relation to fitness and the making of the keep fit detention order were before me on this review.

4After reviewing the jurisdictional issue and preparing written submissions, both Crown and defence counsel agree that the Superior Court has jurisdiction to conduct a s. 525 90-day review where a defendant is concurrently detained on a keep fit order under s. 672.29. Both parties submit that these are separate detention orders, made for separate reasons. Both parties also submit that in the event that the court on a s. 525 review finds that detention on the bail grounds under s. 515 is no longer justified, the separate s. 672.29 detention order would still remain in place unless and until it is varied or the defendant’s trial is completed.

5I agree with this position. In particular, I find that the Superior Court has jurisdiction to conduct a s. 525 review where a defendant is concurrently detained on a keep fit order under s. 672.29 of the Criminal Code. I further find that whatever the outcome of the s. 525 review, it would not affect the continuing validity of the s. 672.29 order.

Analysis

6This is a question of statutory interpretation. I apply the ordinary principles of statutory interpretation set out by the Supreme Court in Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21. I find that the wording of s. 525, and the context and purpose of the legislative provisions of the Criminal Code with respect to both bail and mental disorder support the interpretation that a defendant who is concurrently detained under s. 515 and under s. 672.29 on a keep fit order is entitled to a s. 525 review, but that the outcome of that review will not affect the continuing validity of the s. 672.29 order.

7Section 525 of the Criminal Code entitles a defendant to a review of their detention after 90 days, provided that the defendant is not required to be detained in custody “in respect of any other matter”. Section 525 is contained in part XVI of the Criminal Code, which deals with compelling appearance and judicial interim release. I find based both on that location of s. 525 within the Criminal Code, and the content of s. 525, that the section is clearly linked to the bail provisions of the Criminal Code. Section 525 provides for a review of a detention order under the bail provisions of the Criminal Code (or a situation where a defendant remains detained because they never had a bail hearing after arrest). Section 525 does not provide for review of an order under the mental disorder provisions of the Criminal Code.

8Based on the case law provided by counsel, I agree that “any other matter” in this context has generally been interpreted to mean a different set of charges than the one (or ones) a defendant is detained on for which the 90 day review is sought: see, for example: R. v. Lambert, 2019 BCSC 1401 at paras. 18-25; R. v. Albino, 1972 O.J. No. 1700 (Co. Ct.). I agree with counsel that the s. 672.29 detention order in this case is not a detention in respect of “any other matter”. It is in respect of the same matter – the same sets of charges. It is for a different purpose, under the mental disorder provisions of the Criminal Code, but it is not another matter.

9Further, the purpose of the s. 525 review provisions supports the holding that a defendant who is concurrently detained on a keep fit order under s. 672.29 should have access to a s. 525 review. Section 525 is designed to ensure that the courts supervise whether the continuing detention of a defendant under the bail provisions is still justified: R. v. Myers, 2019 SCC 18. This is a concern to protect a defendant’s liberty interest. Given this concern about liberty, it would be inconsistent to deny a defendant access to this judicial supervision of detention because they are also detained under the mental disorder provisions of the Criminal Code. An interpretation denying access to s. 525 review in these circumstances would only make sense if there was also no way to vary a s. 672.29 order prior to trial. If that were the case, then one might conclude that allowing access to a s. 525 review would be pointless. However, I find that there is a means for a defendant detained pursuant to s. 672.29 to vary the order prior to trial.

10Although Criminal Code does not have an express provision for a review or variation of a s. 672.29 keep fit detention order, I find that a judge of the court that made the order has the authority to vary such an order if there is a material change of circumstances prior to a defendant’s trial date. I base this conclusion on the well-established law that a judge of a trial court has the authority to vary an order related to the conduct of a trial if there is a material change of circumstances affecting the basis on which the order was made: R. v. R.V., 2019 SCC 41 at paras. 74-75; R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660 at para. 21; R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707 at paras. 30. I note that the authority to vary an order based on material change of circumstances is available to both statutory courts and courts of inherent jurisdiction.

11Based on the Adams, Calder, R.V. line of authority regarding a trial court varying an order related to the conduct of a trial based on material change of circumstances, I find that any judge of a court that made a detention order under s. 672.29 (in this case, the Ontario Court of Justice) may vary that order if a material change of circumstances is shown relating to the basis on which the order was made. In light of the test for detention under s. 672.29, that would require evidence that would allow a judge of the court that made the order to find that there are no longer reasonable grounds to believe that the defendant would become unfit to stand trial if they were released from hospital.

12Counsel made submissions about the possibility of reviewing a s. 672.29 order made by a judge of the Ontario Court of Justice in the Superior Court. It is not necessary for me to decide this issue in this case. In my view, if a defendant is seeking variation based on a material change of circumstances (i.e., on evidence that they now can be kept fit outside of hospital), it is preferable that this be addressed at first instance in the court which made the order, which in this case is the Ontario Court of Justice. I note as well that given the limits on certiorari by the Crown or defence in criminal proceedings to jurisdictional error, it is not clear to me that review of a s. 672.29 keep fit detention order on the basis of material change of circumstances could be brought by way of certiorari in this court. It is unlikely that a material change of circumstances would constitute jurisdictional error: R. v. Walker, 2016 ONSC 2299 at paras. 60-69; R. v. Awashish, 2018 SCC 45 at paras. 10-20. However, I do not rule on this issue.

13The availability of a s. 525 review to a defendant detained on a keep fit order under s. 672.29 has no effect on the continued validity of a s. 672.29 detention order. An order for detention under s. 672.29 is made under the mental disorder provisions of the Criminal Code, which is a separate regime from the bail provisions. The order under s. 672.29 is made for different reasons, based on different legal criteria, and based on a different evidentiary foundation than a detention order under s. 515 of the Criminal Code (although it is true that in some cases the evidence may overlap). In addition, I note that s. 525(5) directs that the criteria that a Superior Court judge must consider on a s. 525 review are the regular bail criteria set out in s. 515(10). This also supports the conclusion that a decision under s. 525 that detention is no longer justified under the ordinary bail criteria does not affect the continuing validity of an order under s. 672.29, because a judge on a s. 525 review does not consider the criteria that were the basis for the order under s. 672.29.

14Nor is the existence of a detention order under s. 515 a condition precedent to the making of a keep fit detention order under s. 672.29. The reference in s. 672.29 to a defendant who is “detained in custody” at the time of delivery of the verdict of fitness does not refer exclusively to a detention under s. 515. It refers also to a detention made under and assessment order under ss. 672.11, 672.13, and 672.16, and then continued under a treatment order under s. 672.58. This supports the conclusion that a detention order under s. 515 is in not a condition precedent to s keep fit detention order under s. 672.29.

15The conclusion that the powers relating to detention in part XX.1 of the Criminal Code are distinct from the ordinary bail provisions of the Criminal Code is also supported by the decision of this court in Walker. In that decision, at para. 35, Justice Code described the powers related to detention in part XX.1 of the Criminal Code, including the power to make a keep fit detention order in s. 672.29, as “special bail powers beyond those found in s. 515.”

16Thus, in a case where a defendant is detained both pursuant to s. 515 and pursuant to s. 672.29, if a judge of the Superior Court finds on a s. 525 review that detention under s. 515 is no longer justified, the order under s. 672.29 would remain in effect either until the defendant’s trial, or until varied. As I have already explained, if a defendant seeks to vary a s. 672.29 detention order made by a judge of the Ontario Court of Justice on the basis of a material change of circumstances, then the variation should be sought in the Ontario Court of Justice.

Conclusion

17For these reasons, I accept that this court has jurisdiction to conduct a s. 525 90-day review for Mr. V. Whatever the result of the s. 525 review, it does not affect the continuation of the s. 672.29 detention in hospital. If Mr. V. seeks to vary the s. 672.29 order based on a material change of circumstances, he should do so in the Ontario Court of Justice. Seeking a variation would require evidence of a material change of circumstances regarding the grounds on which that order was made (i.e., whether there are reasonable grounds to believe that he would become unfit if released from hospital).

Direction regarding earlier trial dates

Direction regarding earlier trial dates

18As I indicated at the outset of this endorsement, when I dismissed Mr. V.’s s. 525 review, I gave a direction pursuant to s. 525(4)(a). I reproduce that direction in writing, so that it will be easily available to counsel and to the Ontario Court of Justice.

19Section 525(4)(a) empowers a court on review to give directions to expedite the proceedings if the court is concerned that the matter is progressing slowly. The fact that Mr. V. became unfit in February is something no-one could control. But I am concerned about the current timing of the trial dates, particularly since Mr. V. is subject to keep fit detention order under s. 672.29. I am told that trial dates in October 2021 were offered, but that those dates were declined by the defence because Mr. V.’s counsel was not available. The trial has now been set for late March 2022. I accept that it is important for Mr. V. to be represented by counsel of choice, and do not criticize counsel for declining dates when he was not available. I appreciate that the matter has been set for three days. I also appreciate that scheduling trial dates in the Ontario Court of Justice may be more difficult now than usual because of backlogs caused by the pandemic. But I question whether earlier trial dates could be found for this in-custody matter. I direct counsel to explore with the Ontario Court of Justice whether earlier trial dates can be scheduled. This is not a direction that earlier trial dates must be set. I appreciate that the court and the Crown Attorney’s office must make decisions prioritizing various matters. But in my view, the delay here until the currently schedule trial dates is such that finding earlier trial dates should at least be explored.

20I reiterate my thanks to counsel for their helpful written and oral submissions, on both the jurisdictional issue and the merits of the s. 525 review.