Court File and Parties

COURT FILE NO.: CR-22-8171-BR DATE: 2022/04/27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – TAMARA LICH Applicant

COUNSEL: M. Karimjee, for the Crown L. Greenspon and G. Bebbington, for the Applicant

HEARD: April 20, 2022.

Reasons for Decision

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 517 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE J.A. PARFETT, SUPERIOR COURT OF JUSTICE, EXCLUDING PUBLICATION IN QUICKLAW OR DISSEMINATION TO JUDGES AND COUNSEL.

Parfett J.

[1] Ms. Tamara Lich is seeking to review the decision of the bail review judge. Defence counsel alleges that the judge committed several errors of law in imposing certain release conditions.

[2] Crown counsel asserts there is no jurisdiction in the Superior Court of Justice (SCJ) to review the decision of another judge of the SCJ.

Background

[3] Ms. Lich was one of a group of people arrested in the wake of the ‘Freedom Convoy’ that occupied parts of the City of Ottawa for three weeks in February 2022.

[4] She was detained after a show cause hearing by a judge of the Ontario Court of Justice.

[5] She brought a bail review in the SCJ and was released on a recognizance with various conditions.

[6] As noted earlier, Ms. Lich now seeks to vary some of her release conditions and argues that the bail review judge made errors of law in imposing those conditions.

Arguments

[7] Crown counsel states that s. 520 of the Criminal Code does not permit the review of the decision of a judge in relation to bail. That section reads,

(1) If a justice … makes an order under subsection 515(2), (5), (6), (7), 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.

[8] Section 521 of the Code mirrors s. 520 and permits the prosecutor to bring a review of the decision of a justice.

[9] Section 2 of the Code defines “justice” as “a justice of the peace or a provincial court judge …”.

[10] There is no appeal from a decision of a judge on a bail review to the court of appeal. See R. v. George, 2018 ONCA 314, at para. 25, citing R. v. Smith, 2003 SKCA 8, 227 Sask. R. 279, at para. 25 and R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 18.

[11] That said, Crown counsel draws a distinction between a bail review brought after the initial reviewing judge maintains the status quo by affirming the decision of the justice and one where the bail review judge has overturned the decision of the justice. In the former circumstance, Crown counsel asserts that it is the original decision of the justice that is still the governing decision and therefore, it is possible for there to be a further review by a judge.

[12] Crown counsel also states that multiple bail reviews can be brought where the ground for the review is a material change in circumstances. This is so as the basis for the previous decision of the court has changed and there is no challenge to the validity of that earlier decision.

[13] Consequently, Crown counsel’s argument is that it is only in the circumstance where the bail review judge has overturned the decision of the justice and the ground for review is error in law, that there cannot be a further bail review in the SCJ. According to Crown counsel, such an application is akin to an appeal and the only appellate route is with leave to the Supreme Court of Canada.

[14] Crown counsel relies heavily on the case of R. v. Smith, 2003 SKCA 8, 227 Sask. R. 279. That is a decision of the Saskatchewan Court of Appeal. In that case, there had been an initial detention order that was then vacated on a bail review. The decision of the initial bail review judge was then reviewed on multiple occasions by other judges of the same court. At all times, the basis for the reviews was errors of law. Ultimately, the matter went to the Court of Appeal who heard it in the court’s capacity to sit as ad hoc judges of the superior court. The Court noted that subsections 520(1) and 521(1) confer the right to a review and it went on to state,

But that right is confined by definition to applying to a judge for review of an order made by a justice. It is this which gives rise to the uncertainty that underlies this and like cases. If a judge should dismiss an application for review, the order of the justice remains operative and accordingly the parties continue to have the right to apply to a judge for review, subject to the limits imposed by subsections (8) or (9). But suppose the judge allows the application, vacates the order made by the justice, and then makes an order in exercise of the power vested in the judge by subsections 520(7)(e) or 521(8)(e) as the case may be. Does the right then extend to the order made by the judge? If not, and it is difficult to see how it might do so, can subsections 520(8) and 521(9) be taken by implication to create a right to make further application to a judge to review an order made by a judge?

It is difficult to see how the right conferred by subsections 520(1) and 521(1) – a right which by definition is expressed to apply to an order of the specified type made by a justice – might be interpreted to extend to an order made by a judge. These are defined terms, which as remarked upon earlier serve to express Parliament’s declared intention. Smith, at paras. 47-48

[15] In Ontario, this issue was raised in the decision of R. v. Saracino, 1989 CarswellOnt 736 (S.C.). In that case, the initial reviewing judge had vacated the order of the justice and released the accused. The Crown brought another bail review application pursuant to s. 521 of the Code and defence argued the court had no jurisdiction to hear the review. Essentially the same argument was raised in Saracino as was raised in Smith.

[16] The court in Saracino noted,

The scope of s. 520 and s. 521 considered in combination with other section which permit a review of the accused’s status prior to trial (s. 523, s.525) indicate to me parliament’s intention that decisions with respect to bail should be subject to review as the process is ongoing. These sections favour flexibility and re-evaluation of an accused’s bail status over finality of any particular order made affecting that status. Saracino, at para. 5

[17] The court then reviewed other decisions on this issue that came to differing conclusions and stated,

On balance and not without hesitation, I prefer the view which permits review in circumstances like those presented in this case. Section 521(8) and (9) and their counterparts in s. 520 do not, on their face, limit subsequent applications to cases where the initial application for review was dismissed. These sections clearly permit repeat applications and contemplate reference to the material before the judge on the initial review application and consideration of the order made by that judge.

Nor do I find persuasive the argument that where the initial review application is dismissed, it is the order of the justice which is being reviewed on the subsequent review applications. While it is true that in such cases the justice’s order remains the operative order, in reality on subsequent reviews the decision of the first reviewing judge not to alter that status must be addressed by the judge conducting the second review. Where the initial review application is dismissed, subsequent applications will, in a very real sense, amount to a review of the initial dismissal of the review application, just as subsequent reviews where the initial review altered the bail status of the accused will be reviews of the decision of the judge hearing the first review application. The lis is the same in both situations.

There is no good policy reason for insulating a decision of a judge from review when she makes an order changing the bail status of an accused, while at the same time providing for a review where her order maintains the status quo. Either order can be in error, and either order can have serious ramifications for an accused and for the community. A right of review (subject to the requirement of leave if the earlier review was held within 30 days) is more consistent with our bail system which emphasizes flexibility and the ready availability of the means to reassess or review an accused’s bail status while the charges against him are working their way through our system of criminal justice. Saracino, at paras. 14-15, 17

[18] This latter approach was applied in R. v. Durrani, 2008 ONCA 856, 94 O.R. (3d) 350. The facts were not similar. However, the applicant again raised the argument that there could not be multiple bail reviews. The Court, citing with approval the decision in Saracino, stated,

In my view, the overarching problem with this hierarchy argument is that it finds no support in – indeed it is contrary to – the wording of s. 520. Section 520 clearly envisions more than one opportunity to bring a bail review application and contemplates that different judges of the superior court will sometimes hear these applications. The hearing will often be a blending of the original material and the material before the judge on any prior review and the order made by that judge with new material that has arisen subsequent to the initial hearing. In other words, s. 520 of the Code explicitly contemplates that, in reviewing an order made at a show cause hearing under s. 520, one superior court judge many consider the order made by another judge of the same court on a prior review application. Durrani, at para. 29

[19] The Court also dismissed the idea that one superior court judge should not review the decision of another and approved the statement in R. v. Zeneli, 2003 MBCA 50, 173 Man. R. (2d) 175, at paras. 8-9 that,

Crown counsel submit that special circumstances exist because of an error of law on the part of Menzies J. in failing to provide reasons for his decision in spite of a statutory requirement to do so. It is argued that this distinguishes the present case from the usual situation where changed circumstances are alleged. It is further suggested that another judge of the Court of Queen’s Bench might be reluctant to find judicial error. Further, if judicial error were to be found, allowing a fresh discretion to be exercised, a judge of the Court of Queen’s Bench might be reluctant to come to a different conclusion than his or her colleague on the Court of Queen’s Bench.

In my opinion, the fact that the intended review is based initially on an alleged error of law does not, by itself, qualify as a special circumstance justifying a judge of this court to entertain a review. In my opinion, judges of the Court of Queen’s Bench will fulfill their responsibilities by finding judicial error if error indeed exists and by exercising an independent discretion if the circumstances call for an independent discretion.

[20] Finally, [Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010), at s. 8:30] noted that,

This issue [of jurisdiction] appeared to have been settled by Doherty J. in Saracino, writing over 20 years ago. However, the issue has arisen again on occasion, with the Alberta Court of Appeal adopting the reasoning of Doherty J., and the Saskatchewan Court of Appeal reaching the opposite conclusion.

On balance, the conclusion reached in R. v. Saracino still makes good sense and sound policy. However, it is suggested that the presence of the word “justice” in the present wording of the Criminal Code still remains problematic. This could be overcome quite easily by an amendment to ss. 520(1) and 521(1).

[21] Defence counsel argues that Saracino is good law in Ontario and is to be preferred to the Smith decision. I agree.

[22] While the Smith decision has persuasive effect in Ontario, it is not binding authority. In addition, I agree with Trotter J. that the Saracino case makes sense and is sound policy. There is no principled reason why an accused (or prosecutor) cannot argue on a subsequent review that the initial reviewing judge made an error of law. It happens. To suggest that the only method to redress that error is to bring an appeal to the Supreme Court of Canada is not reasonable. An important purpose of the bail provisions is to be responsive to the fluid situation that is common to charges as they make their way through the justice system. Furthermore, as set out in s. 11(e) of the Canadian Charter of Rights and Freedoms, all accused have a right not to be denied reasonable bail without just cause. To substantially restrict access to review would be contrary to that right.

Conclusion

[23] In conclusion, I find that the Superior Court of Justice does have jurisdiction to review a bail decision made by a judge of this court whether that decision affirms the decision of the justice or vacates the decision of the justice and regardless of whether the grounds for the review are a change in circumstances or an error of law.

The Honourable Madam Justice Julianne Parfett Released: April 27, 2022