R v BTQ, 2017 ABQB 715

Court of Queen’s Bench of Alberta Citation: R v BTQ, 2017 ABQB 715 Date: 20171121 Docket: 150820934Q1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - BTQ Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victims must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Background

[1] I convicted the accused following a trial for sexual assault on three girls. Immediately after I announced my decision, theCrown made an application under s. 523 of the Criminal Code of Canada to revoke the bail of Mr. Q pending the sentencing hearing.Defence opposed the application. [2] I granted the Crown’s application with short oral reasons stressing the public’s confidence and paralleling the tertiarygrounds under s. 515(10). I promised written reasons for my decision and these are the reasons. Jurisdiction [3]

Section 523 states: The Criminal Code of Canada provides that judicial interim release continues after a finding of guilt until a sentence has been imposed: 523.

(1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released fromcustody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizanceissued to, given or entered into by the accused continues in force, subject to its terms, ..., ... (b ... (

i) until his trial is completed, and (ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence ... is imposed on the accused unless, at thetime the accused is determined to be guilty, the court, judge, or justice orders that the accused be taken into custody pending suchsentence. Further, section 523(2) states: 523(2) Despite subsections (1) to (1.2), (

a) the court, judge or justice before which or whom an accused is being tried, at any time, ... may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused andmake any other provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge orjustice considers to be warranted.

Finally, section 523(3) states: The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedingsunder subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed insection 469. Submissions [4] The Crown argued the tertiary grounds. The Crown referred to the decision of my colleague Moen J, in R v Iyer, 2016ABQB 485, and based on the Crown’s submissions in Mr.

Q’s case, his release should be revoked because under that analysis the Crownwill be seeking a lengthy term of imprisonment involving a serious crime – sexual assault. The Crown also relied on R v Shrubsole, (Ont SC), as an example of why and in what circumstances bail can be revoked. In Shrubsole, Justice McIsaac alsoreferred to the tertiary grounds (but with very brief reasons) in cancelling bail. [5] The Defence disagreed, saying that notwithstanding the conviction, the release presumption allows for the status quo tocontinue for someone who had no problems on release.

For cases, he also relied on Iyer, where Justice Moen said this about thepresumption, at para 12: First, it appears from the language of subsection 523(1) that there is a presumption that judicial interim release will remain in effect untilsentencing. To depart from this direction of Parliament I must find that the Crown has shown cause. In fact, Green suggests that adeparture from this legislative direction will be the exception and certainly only where the Crown has shown cause: para 11.

Justice Moen then considered the factors found in s. 515(10) such as flight risk, and the confidence in the administration of justice. MoenJ. ultimately followed Ducharme J’s decision in R v Green (2006), (ON SC), 210 CCC (3d) 543 (Ont SC), where theCrown’s revocation application was denied. In Green, Justice Ducharme also referred to bail’s tertiary reasons, at para 14: The important question of public confidence in the administration of justice must be assessed from the perspective of a public that is bothinformed about our system of bail and the facts of the particular case.

This includes an appreciation of the fact that the offender, althoughconvicted, has already been granted judicial interim release and has complied with the terms of that release, usually for a considerableperiod of time. It is difficult to understand how public confidence in the administration of justice will be undermined by the continuedrelease of an offender who has demonstrated that he or she is not a threat to public safety and does not pose a risk of flight norinterference with the administration of justice.

[6] In following Ducharme J, Moen J said this in Iyre, at para 8 : If I were to follow Moore, I could make an order revoking judicial interim release and remanding Mr. Iyer to custody without more. If Iwere to follow Green, I would need to find my authority in subsection 523(2). Therefore, I will follow the line of reasoning in Green.That is, I will take my authority from subsection 523(2). The Crown has not shown me, that is, shown cause, that anything other than a finding of guilt has changed. To revoke Mr.

Iyer’s bailnow would fly in the face of the provisions of the Criminal Code of Canada at section 523(1) where Parliament specified that bailcontinue unless the guilty verdict was for a class of crimes set out in

section 469 (murder, treason, etc.). Analysis [7] With respect, I do not find a jurisdictional problem under s. 523. [8] A plain language reading of all of s. 523 should be applied in order to avoid ambiguity or confusion. The language of s.523(1) makes it clear that the original release order of an accused will continue in effect until his or her trial is complete. It goes further,by stating that if the accused is found guilty, the original order will remain effective until they are sentenced unless the trial judge ordersotherwise.

To state it plainly, under this provision, Parliament says that bail is to continue through to sentence unless I revoke it (s.523(1)(b)(ii)). [9] In the same year that Green was published, former Alberta CJ QB Wachowich released his reasons in R v Aucoin, 2006ABQB 895. He offers some insightful explanation of s. 523, and so I will quote parts of it at some length here. First, at para 23, hestates: According to s. 523(1)(a), if an accused person is released under s. 522(3), their original release order will continue in effect until theirtrial is complete, exclusive of sentencing.

By s. 523(1)(b), in all other circumstances, the accused person's original document or ordercontinues in effect until their trial is complete. If that person is found guilty, the original order will remain effective until they aresentenced unless the trial judge previously orders otherwise. [10] This mirrors what has already been stated here, and by others, that if the accused is found guilty, the original order will remaineffective until they are sentenced unless the trial judge orders otherwise. In Green, Ducharme J determined that s. 523(2)(

a) is where thetrial judge’s power to vary or revoke a bail post-conviction is found. Again, I respectfully disagree. [11] The wording of s. 523(2) shows that in certain circumstances, the Crown or the Accused can apply to vacate a prior orderissued under

Part XVI of the Code. Again, we can refer here to Aucoin for some helpful explanation of this section, at paras 32-34: Section 523(2) sets out the situations in which the parties can apply to vacate a prior

Part XVI order. Subsection (2) establishes thefollowing: (

i) the conditions in which an application to vacate can be brought; (ii) the forum in which that application must be made; and (iii) which party bears the burden of proof on such an application. With regard to the burden of proof, the final portion of s. 523(2) clearly indicates that when an application to vacate is brought pursuantto any of the terms contained in subsection (2), the party bringing the application to vacate must show cause as to why the prior orderought to be vacated. The remainder of s. 523(2) sets out the specific situations in which an application to vacate a prior

Part XVI order can be brought. Thefirst two categories are relatively straightforward and briefly stated, provide as follows: (

i) if the accused person's trial is underway, the court, judge or justice presiding over the case can at any time entertain an application tovacate [s. 523(2)(a)]; and (ii) if the accused is not charged with an offence listed in s. 469, a justice can hear an application to vacate after the completion of theaccused's preliminary inquiry, provided that the accused is ordered to stand trial [s. 523(2)(b)]. [12] In considering the above quoted passages, and in a plain language reading of the section, s. 523(1)(b)(ii) states that a trialjudge may remand an accused in custody pending sentence, while s. 523(2) indicates that an application can be made by either theAccused or Crown to vacate any prior order at any time during the trial.

What is significant, is the wording that is present in s. 523(2),but that is markedly absent from s. 523(1). [13] Section 523(2) requires that the party bringing the application to vacate to show cause as to why the prior order ought to bevacated. It also states that any order for vacating a previous order for release or detention of the accused will continue until his or hertrial is completed. The “show cause” requirement is not present in the wording of s. 523(1).

Again, if the accused is found guilty, theoriginal order will remain effective until they are sentenced unless the trial judge orders otherwise. [14] As stated in a straight-forward manner by the Ontario Court of Appeal in R v Lenart (1998), (ON CA), 39OR (3d) 55 (Ont CA) at para 48: “The trial judge has the authority to remand the appellant in custody pending sentence under s.523(1)(b)(ii) of the Criminal Code. The only restriction on the length of the remand is that the trial judge must determine the appropriatesentence "as soon as practicable" after the finding of guilt: see s. 720.”

[15] The point can be made that s.523(1)(b)(ii) could essentially be considered redundant if the time period under s. 523(2) “untilhis trial is completed” includes both pre and post-conviction periods. In other words, why does Parliament explicitly identify twodistinct time periods in s. 523(1), if the trial time period is all encompassing under this

section (i.e. if the meaning of “trial” includes preand post-conviction)? Also, why would two separate time periods be acknowledged in s. 523(1) if they were not to be read as beingseparate and distinct? The first distinct time period is identified at s. 523(1)(b)(i), “until his trial is completed,” and the second timeperiod is found at s. 523(1)(b)(ii), “until a sentence [...] is imposed on the accused.” As the language used in s. 523(2) “trial iscompleted,” is the same as that in s. 523(1)(b)(

i) but not s. 523(1)(b)(ii), applying s. 523(2) post-conviction is not correct, as the trial iscomplete. The time period this revocation of bail is being considered is post-conviction, the time period detailed in s. 523(1)(b)(ii). [16] If s. 523(2)(

a) is where the trail judge’s power to vary or revoke a bail post-conviction is found, s. 523(1)(b)(ii) need not exist,as s. 523(1)(b)(

i) would be sufficient enough to express the fact that the original release order of an accused will continue in effect untilafter sentencing. [17] Following conviction, the proper

section for the Crown’s application to revoke bail is s. 523(1)(b), for two reasons. First,because the trial is over; and second, a considerable new circumstance exists: the accused is no longer presumed innocent. The “timewindow” described in s. 523(1)(

b) is exactly and properly where the court finds itself. [18] I note this was the

section used by Rooke J (as he then was) in R v Szczerba, 2002 Carswell Alta 1927 (WL Can) (Alta QB);affirmed 2004 ABCA 189. After conviction and without anything more, he said this in convicting the accused and revoking their release,at para 9: “[it] is hereby revoked and each will be taken into custody at the end of my reasons, pending sentence, pursuant to CriminalCode Section 523(1)(b)(ii).” [19] In another case, R v Lague, 2012 MBQB 273, Justice Oliphant addressed a good behavior argument similar to that made byMr.

Q’s defence counsel, which is that release ought to continue in cases where the accused behaved properly. In dismissing thisargument, Oliphant J. said in Lague, at para 25: While it is true that there have been no breaches of any of the conditions imposed upon Mr.

Lague while he has been free on judicialinterim release, and while it is true that he has appeared in court as and when required, in my opinion, the change of status of the accusedthat occurs upon a plea of guilty to a serious offence, especially one that cries out for incarceration, must be viewed as a change incircumstances that is both substantial and of significant magnitude. The fact that Mr. Lague must now realize the likelihood of his beingincarcerated is virtually inevitable is also significant in terms of the risk of flight.

What is the proper test to revoke bail? [20] There is a general rule of construction in criminal cases that the law favours liberty. Marcotte v Canada (Deputy AttorneyGeneral), (SCC), [1976] 1 SCR 108 at 115: [21] Before trial there is the presumption of innocence and bail needs to be reasonable.

For proceedings in criminal cases, theCharter of Rights states: [22] The Supreme Court of Canada spoke recently of liberty, detention and the public confidence in R v Oland, 2017 SCC 17.Even though it spoke of an appellant context, the Supreme Court, at para 33, reminds us that bail “.... should not be more readilyaccessible for someone who has been convicted of a crime than for someone who is awaiting trial and is presumed innocent.” This isbecause: “[b]y contrast, once a conviction is entered, the presumption of innocence is displaced and s. 11(

e) of the Charter no longerapplies”: para 35. [23] Detention of any accused can be considered at many stages – as early as initial arrest or as late as bail pending appeal. Thesefactors can be viewed as the metaphorical plank that falls or rises where the interests of the individual’s rights of liberty and thepresumption of innocence, on the one hand, are outweighed by society’s interests including public safety and integrity of the judicialsystem on the other hand. This is the usual tension in criminal law and for release or detention it applies both before and after the trial.

Indeciding to vacate bail, the community’s confidence in the administration of justice is not more important than an individual’s rights, butdepending on the gravity of the case it is very important when balancing the community’s interests, including safety. And safety is aderivative of the trial evidence with the focus on the seriousness of the offence. [24] In considering the application of s. 523, s. 515(10) does not apply piecemeal or automatically but the s. 515(10) principles,with few exceptions, continue to apply after conviction with modifications.

At a pre-trial bail hearing, s. 515(10) factors include aconsideration of the Crown’s case. At that stage, the necessary focus is to cautiously balance an individual’s freedom versus societalinterests. That balance is due to the pinnacle of the criminal justice system which is the presumption of innocence and the danger ofirrevocably interfering with the liberty of someone who may never be convicted.

But after conviction, s. 515(10) is approacheddifferently because the strengths of the Crown’s case are known and upon conviction there is no presumption of innocence. [25] The remaining factors (flight risk, public safety, confidence in the administration of justice) still come into play post-conviction. The first factor is the flight risk, or whether the accused will re-attend court unless detained. Components of past record,court behavior and nature of the crime can be relevant to flight risk.

The second factor is whether detention is necessary to protect orkeep the public safe, including whether there is a substantial likelihood the accused will re-offend. Finally, the public’s confidence in theadministration of justice needs to be addressed, considering the • seriousness of the offence; • circumstances surrounding the offence; and • the potential for a lengthy term of imprisonment.

Application to the Facts [ 26 ] Without prejudging the sentence for Mr. Q, I analyze the revocation of his bail as follows. First, while I do not think he will flee and avoid his sentencing, I also do not think he has the same motivation to appear as he did before, not knowing at that time the trial result. In other words, however he evaluated the chances of being found not guilty and thus free to leave, he is now guilty and will not be at liberty for some time. Second, regarding the safety of the public, a judge cannot predict the future, but these convictions are serious.

Regarding the victims and their mom (or foster mom), who called the RCMP in the first instance, their safety to me is a concern, especially because the assaults were upon the witnesses whose testimony collectively resulted in Mr. Q going to jail. Whatever the sentence ends up being, he will likely do significant time. [ 27 ] Primarily, the main reason Mr. Q’s bail is revoked is because the public’s confidence in the administration of justice requires it.

This is a serious crime, and in some circumstances, maintaining public confidence requires that those presumed innocent, and those found guilty of serious offences, not be treated the same. Finally, in considering revocation of bail before sentencing, the potential for jail, especially long term jail, becomes important. For him, the starting point is four years. It is true the sentence can go up or down, but it starts at four years. [ 28 ] Ultimately and most important, the public’s confidence in the administration of justice is highlighted in cases of grave harm and heinous circumstances.

As the Supreme Court of Canada said, it is the court’s never ending judicial duty to fully consider all of the circumstances of the case and then remind myself of my role as a guardian of public confidence in our justice system ( R v St. Cloud , 2015 SCC 27 at paras 82-83 ). For this type of offence, I have done just that. [ 29 ] To conclude, relying on s. 523(1) (b), and the above factors, with society’s confidence in the administration of justice on the line, the revocation of Mr. Q’s bail pending sentence is necessary to maintain that confidence. Heard on the 19 th day of October, 2017.

Dated at the Town of St. Paul, Alberta this 21 st day of November, 2017. W.A. Tilleman J.C.Q.B.A. Appearances: Randall W. Brandt for the Crown Jerred L.T.T. Moore for the Accused