R v Baptiste, 2017 ABQB 117

Court of Queen’s Bench of Alberta Citation: R v Baptiste, 2017 ABQB 117 Date: 20170217 Docket: (none) Registry: Edmonton In the Matter of an Application for an Order for the Conveyance of a Prisoner Between: Her Majesty the Queen - and - Burton Baptiste Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] On February 1, 2017, Crown Counsel applied ex parte in morning chambers for what she referred to as “a springing order”.

She explained that Burton Baptiste is presently a serving prisoner in the Bowden Institute. She indicated that the Edmonton Police Service has the necessary basis to arrest him and charge him with second degree murder. The order she sought would direct that the prison authorities deliver him into the custody of the police so that he could be arrested, charged and interviewed in connection with the murder charge.

[ 2 ] I asked counsel the source of my authority to grant the order she sought. She required time to inform herself on that point. A few days later she contacted my assistant and it was arranged that she would come to my chambers on February 16 to speak further to the matter. [ 3 ] Crown Counsel met with me in my private chambers on February 16.

She submitted that the source of my jurisdiction to make the order she seeks is Criminal Code , s. 527(1) which provides: 527(1) A judge of a superior court of criminal jurisdiction may order in writing that a person who is confined in a prison be brought before the court, judge, justice or provincial court judge before whom the prisoner is required to attend, from day to day as may be necessary, if (

a) the applicant for the order sets out the facts of the case in an affidavit and produces the warrant, if any; and (

b) the judge is satisfied that the ends of justice require than an order be made. [ 4 ] Crown Counsel provided me with the unfiled affidavit of Detective Michelle Greening, a member of the Edmonton Police Service. In her affidavit, Detective Greening provides a copy of the warrant that has been issued for the arrest of Mr. Baptiste on the charge of second degree murder. She swears that Mr. Baptiste is presently a prisoner at the Bowden Institute in Innisfail, Alberta and that his probable release date is November 12, 2017. She further swears that she intends to conduct a post arrest interview of Mr.

Baptiste at the Innisfail RCMP detachment. She swears: The Bowden Institute does not have the proper facilities to facilitate the best post arrest interview planned for Burton Baptiste which will include the visual display of photographic, audio evidence and video evidence. Presenting the accused with the evidence and providing him with an opportunity to speak to the evidence is an important part of an objective investigation. I believe that the interview facilities at the Innisfail RCMP Detachment are better suited to this purpose.

The complex nature of this investigation makes it necessary to coordinate many resources at the same time and this cannot be accomplished without disrupting the daily operation of the Bowden Institution. [ 5 ] Detective Greening further swears that while Mr. Baptiste is at the RCMP detachment, he will be photographed and fingerprinted and brought before a Justice in compliance with s. 503(1) of the Criminal Code within 24 hours of his arrest and then returned to the Bowden Institute.

He will not be taken to any other address, “unless it is for the purposes of the interview at the cooperation of Burton Baptiste”. [ 6 ] Crown Counsel submitted that although the wording of s. 527(1) itself contemplates the court ordering that a prisoner be brought to court and does not appear to contemplate that the order authorize the conveyance of a prisoner anywhere other than court, the

section should be interpreted more broadly than the literal

interpretation of its words might justify because s. 527(3)(

a) contemplates the order providing that the prisoner be delivered other than to the court. [ 7 ] S. 527(3) provides:

(3) An order that is made under subsection (1) shall be addressed to the person who has custody of the prisoner, and on receipt thereof that person shall (

a) deliver the prisoner to any person who is named in the order to receive him; or (

b) bring the prisoner before the court, judge, justice or provincial court judge, as the case may be, on payment of his reasonable charges in respect thereof. [ 8 ] In my view, s. 527(3)(

a) cannot be so interpreted. The scope of the action which a s. 527(1) order can authorize is defined entirely within s. 527(1). Subsection (3) does not add to that scope. Subsection (3) specifies to whom a subsection (1) order must be addressed, and states what that person is to do in response to the order. But it does not expand the permitted scope of a s. 527(1) order – which is to bring a person who is in prison to the court. [ 9 ] Subsection (3) does contemplate that a s. 527(1) order might designate the person who is to receive the prisoner. In my view, subsection (3)(

a) must be read as intending that the person so designated is the person who is to receive the prisoner at the court or on behalf of the court. [ 10 ] Crown Counsel cited R v. Petrin , 2013 ABQB 689 . There, the accused was being held in a correctional centre in Regina, Saskatchewan pending his trial near Edmonton. The accused applied under s. 527(1) for an order that he be transferred to the Edmonton Remand Centre so the he could prepare with his counsel for an Askov application which was scheduled to be heard in the proceedings against him.

The Crown in opposition submitted that the court had no jurisdiction to order the Correctional Service to deliver a prisoner in advance of a court hearing. [ 11 ] In her reasons, Veit J. said: Does s. 527(1) of the Criminal Code give to this court the power to order custodial officials to transfer remand prisoners to a specific location and to hold them there?

The short answer to that question is, Yes. [ 12 ] Crown Counsel submits that Petrin is authority that a s. 527(1) order of the nature sought, that is one that directs delivery of a prisoner somewhere other than to court, can be granted. [ 13 ] In my view, Petrin does not support the Crown’s application here. The reasons Veit J. gave in explaining her “short answer”

make it clear that she interpreted s. 527 as authorizing the court to order that a remand prisoner to be transferred to a specific location where it is necessary to do so in order to ensure that the prisoner receives a fair trial. [ 14 ] Veit J. relied on R v. Levesque [1980] B.C.J. No. 842 and other authority which referred specifically to the court’s authority under s. 527(5) to give directions incidental to an order under s. 527(1). Section 527(5) provides:

(5) Where the appearance of a prisoner is required for the purposes of paragraph 1(

a) or (b), the judge or provincial court judge shall give appropriate directions in the order with respect to the manner in which the prisoner is (

a) to be kept in custody, if he is ordered to stand trial; or (

b) to be returned, if he is discharged on a preliminary inquiry or if he is acquitted of the charge against him. [ 15 ] Veit J. noted that in Levesque , the court interpreted s. 527(5) (which at the time of the case was s. 460(5)) as authorizing the court to give directions as to where a prisoner who is required in court is to be held if the court concludes such directions are required to ensure that the accused receives a fair trial. [ 16 ] Veit J. concluded: . . . while a superior court does not generally have jurisdiction over the place and manner of detention of prisoners, at least those prisoners who are convicts, it does have the power under s. 527 of the Code with respect to remand prisoners to order that they be brought to a specific prison and be held there prior to and during a trial. [ 17 ] In my view, it is clear that Veit J. was of the view that such power might be exercised where it is necessary to do so to ensure that the accused receives a fair trial.

In the case before her, she held that the order sought by the accused was not required in order to ensure he received a fair trial and she dismissed the application. [ 18 ] Crown Counsel does not suggest that transporting Mr. Baptiste to the RCMP detachment so, amongst other things, he can be interviewed in connection with the murder charge is necessary in order to ensure that he receives a fair trial. In my view, therefore, Petrin does not apply to the situation now before the court. [ 19 ] Crown Counsel did however submit that the order sought is required in order to satisfy the ends of justice.

She noted that s. 527(1)(

b) sets that as the test which must be satisfied before the court grants a s. 527(1) order. [ 20 ] Crown Counsel submitted if Mr. Baptiste were not in prison, the police could arrest and charge him, and take him to police headquarters and attempt to interview him. The police would unquestionably have the right to do all of those things. Because Mr. Baptiste is a serving prisoner there is an impediment to the police fully exercising those “investigative rights”. The order would remove the impediment and thus serve the ends of justice. That is the Crown’s submission. [ 21 ] I accept that the fact Mr.

Baptiste is in prison creates difficulties with regard to interviewing him after he is charged that would not otherwise exist. I think it is at least arguable, however, that the removal of those difficulties is not necessary to satisfy the ends of justice. However, in my view it is not necessary for me to come to a conclusion on that point. [ 22 ] In my view, the permitted scope of a s. 527(1) order is clearly defined in that subsection. The subsection authorizes me to order that a prisoner who is required to attend in court be brought to court. Neither s. 527(3)(

a) nor s. 527(5) authorize me to grant the order sought. If the circumstances frustrate the ends of justice, which, as noted, I am not convinced they do, s. 527(1) does not give me authority to do anything about it. [ 23 ] I note, that s. 527(7) gives the court authority to order that a prisoner be transferred into the custody of a peace officer where the court is satisfied that the transfer is required for the purpose of assisting a peace officer acting in the execution of his or her duties. The order sought in respect of Mr. Baptiste appears to be within that description.

This provides further support for the conclusion that the order sought is not one contemplated by s. 527(1). [ 24 ] An order under s. 527(7) cannot be granted without the written consent of the prisoner affected. As I understand it, Mr. Baptiste’s consent to the order sought has not been sought. [ 25 ] I must dismiss the application. Heard on the 01 st and 15 th days of February, 2017. Dated at the City of Edmonton, Alberta this 16 th day of February, 2017. B.R. Burrows J.C.Q.B.A. Appearances:

Ioana Corabian for the Crown Burton Baptiste had no notice of the application