COURT FILE NO.: CR-12-00002582

DATE: 20220623

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PIERRE ARAGON

Defendant

L. Wannamaker, for the Crown

D. Derstine and L. Remigio, for the Defendant

HEARD: June 15, 2022

REASONS ON MOTION FOR DIRECTIONS

DI LUCA J.:

[1] The defendant, Pierre Aragon, brings a motion seeking directions on where and before whom he can bring a bail application.

[2] The circumstances of this case are unique.

[3] By way of brief background, on April 22, 2014, Mr. Aragon was convicted of possession of a weapon, uttering threats, aggravated assault, and assault with a weapon causing bodily harm.

[4] Upon conviction, the Crown sought to have Mr. Aragon declared a dangerous offender pursuant to s. 753 of the Criminal Code, and further sought the imposition of an indeterminate sentence.

[5] The sentencing hearing commenced before the trial judge. However, due to some delays in the proceedings, the original trial judge reached his mandatory retirement age. On February 29, 2016, a new judge was assigned to complete the sentencing hearing as permitted by s. 669.2 of the Criminal Code.

[6] On September 8, 2017, Mr. Aragon was found to be a dangerous offender and an indeterminate sentence was imposed.

[7] Mr. Aragon appealed both his sentence and conviction to the Ontario Court of the Appeal. On March 24, 2022, the Court of Appeal dismissed the conviction appeal and upheld the conviction.

[8] The Court allowed the sentence appeal and overturned the dangerous offender designation. As a remedy, the Court of Appeal directed a new sentencing hearing before a different judge.

[9] Mr. Aragon is now back before the Superior Court of Justice and is awaiting the scheduling of his new dangerous offender hearing. A judge has not been assigned to hear the matter.

[10] Mr. Aragon now wishes to bring an application for bail. I am advised that he has never had a bail hearing on these charges despite the passage of almost a decade since the original date of offence.

[11] Both parties agree that Mr. Aragon should have a bail hearing. Both parties have been unable to pinpoint an easy answer to the jurisdictional question of where and before whom the bail hearing can proceed.

[12] Neither party has a particular preference as to where and before whom the bail hearing should proceed. That said, the parties agree that it might be best if the bail hearing proceeded before a judge other than the judge who will hear the dangerous offender proceedings.

Criminal Code Provisions and Related Principles

[13] The Court of Appeal has jurisdiction to address issues of bail following an appeal and this jurisdiction is, at certain times, concurrent with the trial court, see R. v. Manasseri, 2017 ONCA 226 at paras. 39-43. However, section 679 (7.1) of the Code, which grants the Court of Appeal jurisdiction to address bail following an appeal appears to be restricted to instances where the Court of Appeal directs a new trial. It does not, on its face, relate to instances where the Court of Appeal directs a new sentencing hearing.

[14] Section 515 of the Code directs that where a person is charged with a non s. 469 offence, bail hearings are held before a “justice.” A “justice” is defined as a justice of the peace or judge of the provincial court. A first instance bail hearing can take place at any time prior to the commencement of the trial. The fact that the matter has proceeded to the Superior Court of Justice does not end the jurisdiction of the Ontario Court of Justice to conduct a bail hearing, see R. v. Watts, 2014 ONSC 6246 and R. v. Hudson, 2011 ONSC 5176.

[15] Section 523(2)(a) provides that a “court, judge or justice” before which or whom an accused “is being tried” may at any time on cause being shown vacate any previous release or detention order. In essence, this section directs that once an accused “is being tried”, jurisdiction for any issue relating to bail rests with the “court, judge or justice” before which or whom the defendant is being tried, see R. v. Passera, 2017 ONCA 308 at para. 12.

[16] The phrase “is being tried” in s. 523(2)(a) of the Code requires that the defendant’s trial must have actually commenced. Jurisdiction under this provision does not arise where the defendant is before a judge who is simply scheduled to be the trial judge, see R. v. McCreery, (1996) 1996 CanLII 17941 (BC SC), 110 C.C.C. (3d) 561 (B.C.S.C.).

[17] Reviews of first instance bail decisions can occur under s. 520 (by defendant) and s. 521 (by Crown). However, neither s. 520 nor s. 521 bail reviews are available once a trial has commenced.

[18] A detention may also be reviewed under s. 525 where 90 days have passed without the trial having commenced. However, a s. 525 review is also not available once a trial has commenced.

[19] While it may be awkward for the judge hearing the dangerous offender hearing to conduct a bail hearing during that process, a judge would not be disqualified from hearing both. The presumptions of judicial integrity and impartiality apply, and the judge would be expected to disabuse him or herself of any prejudicial evidence they may hear, see R. v. Valle-Quintero, 2021 ONCA 390 and R. v. Hopwood, 2017 ONCJ 17 at para. 1 per Paciocco J. (as he then was). In addition, I note that the risk of hearing prejudicial or inadmissible evidence is less significant at a dangerous offender hearing than it is at trial.

Analysis and Directions

[20] Statutory bail provisions are to be interpreted in a manner consistent with the objectives of the legislation. In this regard, I am guided by the comments of Doherty J.A. in R. v. Daniels, (1997) 1997 CanLII 3670 (ON CA), 35 O.R. (3d) 737 (C.A.), where he noted the following in the context of bail pending appeal:

Parliament has declared that persons appealing their convictions are entitled to bail pending appeal if they meet the three criteria found in s. 679(3). Ideally, all who meet those criteria should be released and all who do not should remain in custody. The applicable statutory provisions should, so far as the language permits, be read so as to achieve this ideal. Furthermore, and again to the extent that the language permits, the provisions should be given a reading which facilitates a prompt and efficient determination of the merits of applications for release pending appeal.

[21] There is no issue that Mr. Aragon is currently “being tried.” While his conviction appeal has been dismissed, the Court of Appeal has directed a new sentencing hearing. By virtue of the Court of Appeal’s order, Mr. Aragon has been placed in the position of essentially continuing his trial – which is now at the sentencing stage. The twist is that his sentencing hearing is now to occur before a new judge.

[22] With reference to the language of s. 523(2)(a), there currently is no “judge” or “justice” before whom Mr. Aragon’s sentencing hearing is being heard. A judge has not yet been assigned. While one answer might be to simply have a new judge assigned to continue the matter, the practicalities relating to trial scheduling present challenges that may prevent this from happening in a timely fashion, especially in regions with smaller judicial complements.

[23] It would be an odd outcome if, during the time before a judge is assigned, Mr. Aragon has no avenue available for a bail application pending the continuation of his sentencing hearing. In my view, section 523(2)(a) can be interpreted in manner that is logical and cohesive with the overall purpose of the statutory bail scheme and which also solves the problem presented in this unique case.

[24] In this regard, I am prepared to find that the inclusion of the word “court” in the phrase “court, judge or justice” in s. 523(2)(a) suggests that Parliament contemplated scenarios where a defendant could seek to bring a bail application where he or she was “being tried”, but there was no judge or justice currently hearing the trial. One instance where this might occur would be where a judge dies or retires during a trial. In such a circumstance, a new judge can be assigned to continue the matter in accordance with s. 669.2 of the Code, see R. v. Hill, 2005 NSPC 50 at para. 39. By analogy, another scenario is the one presented here, where the Court of Appeal directs that a fresh sentencing hearing be held before a new judge.

[25] As such, I find that since Mr. Aragon is currently being tried before “a court” within the meaning of s. 523(2)(a), and there is currently no “judge” or “justice” conducting that trial, the jurisdiction for a bail application rests with the “court”. I direct that the bail application may be heard by a judge of the Superior Court of Justice. I further find that once a judge is assigned to hear Mr. Aragon’s sentencing hearing, that judge will have the jurisdiction to address issues of bail, as any trial judge would in accordance with s. 523(2)(a).

[26] As Mr. Aragon’s trial has commenced for the purposes of s. 523(2)(a), I see no need for the new judge to actually “commence” the sentencing hearing before jurisdiction vests. In my view, it vests once a judge is assigned to hear the fresh sentencing hearing. The new judge will be effectively “stepping-in” to a proceeding that is already underway.

[27] I am restricting my decision to the unique facts of this case. I am not deciding whether the use of the word “court” in s. 523(2)(a) should be broadly interpreted to grant jurisdiction to both the trial judge and any other member of the trial court to determine issues of bail once a trial has commenced, see discussion in R. v. Mahmood, 2006 ABPC 59. That is an issue that is complex and unnecessary to resolve for the purpose of this motion.

J. Di Luca J.

Released: June 23, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

PIERRE ARAGON

Defendant

REASONS ON MOTION FOR DIRECTIONS

J. Di Luca J.

Released: June 23, 2022