R v Rodger, 2021 ABQB 688

Court of Queen’s Bench of Alberta Citation: R v Rodger, 2021 ABQB 688 Date: 20210827 Docket: 210615869U2 Registry: Edmonton Between: Her Majesty the Queen - and - Wade Matthew Rodger Accused Corrected judgment: A correction was issued on August 30, 2021; the corrections have been made to the text and the correction is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Mr. Rodger was denied bail in the Provincial Court.

He sought review of that denial in this Court. At the Bail Review hearing I queried whether in the circumstances I have jurisdiction to hear a Bail Review application in this matter. I asked counsel to provide me with written briefs on the point and they have done so. [ 2 ] I have determined that I have no jurisdiction to deal with Mr. Rodger’s bail status in relation to 23 of the 41 charges he faces. Here are my reasons. [ 3 ] Mr. Wade was charged on “the original Information”, with 18 offences. The only copy of that Information to which I have access is an unsworn and undated copy.

The bail hearing in respect of those charges occurred on May 13, 2021. So, the date of the Information was before that date. This is Information # 210561619P1 – “Information #1”. The offences charged were: 1. April 29, 2021 - Possession of Methamphetamine for the purpose of trafficking 2. April 29, 2021 - Possession of crime proceeds – Canadian currency under $5000 3. April 29, 2021 - Occupying a vehicle in which he knew there was a hand gun

4. April 29, 2021 - Possession of a firearm knowing it was obtained by the commission of a crime 5. April 29, 2021 - Contravening a regulation concern the transport of firearms 6. February 11, 2021 - Trafficking in methamphetamine 7. February 11, 2021 - Possess crime proceeds – Canadian currency under $5000 8. February 24, 2021 - Trafficking in methamphetamine 9. February 24, 2021 - Possess crime proceeds – Canadian currency under $5000 10. March 30, 2021 - Trafficking in methamphetamine 11. March 30, 2021 - Trafficking in cocaine 12. March 30, 2021 - Possess crime proceeds – Canadian currency under $5000 13.

April 6, 2021 - Trafficking in methamphetamine 14. April 6, 2021 - Trafficking in cocaine 15. April 6, 2021 - Possess crime proceeds – Canadian currency under $5000 16. April 29, 2021 – Possess prohibited weapon – brass knuckles 17. April 29, 2021 – Possess prohibited weapon – hand gun 18. April 29, 2021 – Possess weapon when subject to a prohibition. [ 4 ] Mr. Wade was jointly charged with another person on Counts 1 to 5 of Information #1. He was the only accused on Counts 6 to 18. [ 5 ] On May 13, 2021 Mr.

Rodger applied for judicial interim release in respect of the 18 charges just set out in the Provincial Court. Release was denied. [ 6 ] After the bail hearing on May 13, 2021 the Information # 210561619P1, “Information #2”, was sworn. Again, the only copy I have seen is neither dated nor sworn – but there appears to be no dispute that it was sworn after the May 13 bail hearing. It charged the following offences – all of which are alleged to have been committed on April 29, 2021: 1. Unlawfully possess body armor without a permit 2.

Possess a prohibited weapon – folding knife, BB gun disguised as a cross bow, and “sai knives” 3. Possess a prohibited weapon – taser and brass knuckles 4. Possess gama-hydroxybutyrate for the purpose of trafficking 5. Possess methamphetamine for the purpose of trafficking 6. Possess proceeds of crime – Canadian currency less than $5000. 7. Possess stolen hand gun 8. Possess a prohibited weapon – taser and butterfly knife 9. Possess weapon knowing it was obtained by commission of an offence 10. Possess loaded prohibited firearm or unloaded firearm with readily accessible ammunition, without authorization 11.

Possess loaded handgun without a license 12. Use a loaded handgun in a careless manner 13. Violate weapons transport regulations 14. Possess stolen property – a handgun 15. Possess loaded prohibited firearm or unloaded firearm with readily accessible ammunition, without authorization 16. Possess loaded handgun without a license 17. Occupy a vehicle knowing there was a firearm in it 18. Possess cocaine for the purpose of trafficking

19. Possess codeine for the purpose of trafficking 20. Possess Lysergic Acid Diethylamide for the purpose of trafficking 21. Possess Psilocybin for the purpose of trafficking 22. Possess a loaded handgun without a license 23. Possess a firearm while under a weapons prohibition. [ 7 ] There were two other persons jointly charged with Mr. Rodger on the first six counts. On Counts 7 to 21 he was jointly charged with one other person. On Counts 22 and 23 he was charged alone. [ 8 ] The offences charged on Information #1 are different and separate offences from those charged on Information #2.

In total, the two Informations charged Mr. Rodger with 41 offences. [ 9 ] Mr. Rodger has never made a bail application on Information #2 in the Provincial Court. [ 10 ] Sometime after Information #2 was sworn the Crown decided to replace Information #1 and Information #2 with Information #210615860P1 – “Information #3”. Again, the only copy of Information #3 that I have seen is an undated and unsworn copy. Information #3 charges Mr. Rodger with the same 41 offences that were charged against him in Informations #1 and #2. [ 11 ] Information #3 was before the Provincial Court on June 24, 2021.

I have listened to the recording of that proceeding. The Crown applied to have the process under Information #1 transferred to Information #3. The judge was informed that Mr. Rodger was bail denied in respect of Information #1. The judge transferred process from Information #1 to Information #3. It appears to have been assumed, by the Court and the Crown, and probably, though tacitly, by counsel for Mr.

Rodger that the effect of transferring process was that the bail denial in respect of the 18 original Information #1 charges would apply to those charges and the 23 new charges on Information #2 and on the combination Information, Information #3. Information #1 and Information #2 were withdrawn. Whether or not Mr. Rodger consented to the bail determination in respect of Information #1 applying to Information #3 was not addressed. [ 12 ] On August 13, 2021 Mr. Roger applied before me for a CC s. 520 review of the denial of bail on May 13, 2021.

In the course of the bail review application I advised counsel that I was not certain that in these circumstances I have jurisdiction to hear a bail review application. There has never been a Provincial Court bail application in respect of the 23 offences originally charged in Information #2.

I was not certain that the effect of issuing a new Information combining the 18 charges upon which the Provincial Court had considered bail and 23 offences upon which the Provincial Court had never considered bail, and “transferring process” to that new Information, resulted in the bail order made on the original Information #1 applying to the combined Information, Information #3. [ 13 ] The Crown submits that in these circumstances CC s. 523(1.1) provides the answer.

The Crown submits that it makes the bail denial order – the detention order – issued in respect of Information #1 apply to Information #3. [ 14 ] Taking out all of the words of CC s. 523(1.1) that clearly have no application in this case, the

section reads: Where an accused, in respect of an offence with which he is charged, . . . is being detained under or by virtue of any provision of this Part and after the order for . . . detention has been made, . . . a new information, charging the same offence or an included offence, is received, . . . the order for . . . detention of the accused . . . applies in respect of the new information. [ 15 ] In my view, whether or not this

section applies to the situation that arises here depends on whether Informations #2 and #3 were, “new information[s] charging the same offence or an included offence” as Information #1. Information #2 clearly was not. It charged 23 offences different offences from the offences charged on Information #1. And Information #3 charged 18 of the same offences as were charged on the original Information #1, and also the 23 different offences that were charged on Information #2.

It too was not a “new information charging the same offence or an included offence.” [ 16 ] In my view, CC s. 523(1.1) clearly does not apply – it does not cause the detention order made in respect of the charges on Information #1 to apply to the 23 new and different charges on Informations #2 and #3. There has never been any Provincial Court determination of whether or not Mr. Rodger should be granted bail on those 23 new charges. [ 17 ] I have no original jurisdiction in respect of judicial interim release on any of the 23 offences charged after May 13.

My jurisdiction, under CC s. 520, is to hear an application for the review of an order made by a “justice”. No such order has been made in respect of the 23 offences. [ 18 ] CC s. 520 is my only source of jurisdiction to review Mr. Rodger’s bail status. In my view, the order “transferring process” from Information #1 to Information #3 did not give me jurisdiction to determine the issue of bail in respect of those 23 offences. Neither can the Crown and Accused give me jurisdiction by consent.

I simply have no jurisdiction to deal with bail in respect of the 23 offences. [ 19 ] The Crown submitted that I could assume inherent jurisdiction to determine whether Mr. Rodger should be granted bail on the 23 offences. In my view, it would not be appropriate to do so even if that submission is correct. To do so would be to completely ignore the clear intentions of Parliament in establishing the bail determination system set out in the Criminal Code . I decline to do so. [ 20 ] Perhaps I would have jurisdiction to hear an application for review of the bail denial order made on the original 18 charges.

But that is not what I am asked to do in the application before me. [ 21 ] The Crown cited three authorities in support of its position that the effect of CC s. 523(1.1) is to make the Provincial Court Judge’s May 13 detention order apply to the 23 offences which had not at that point been charged: R v. Aucoin 2006 ABQB 895 , R v.

Millar ( 2012 ONSC 1809 , and R v. Bakhar 2019 QCCS 2648 . While all three cases consider CC s. 523(1.1), in my view, none of them addresses the specific point that arises in this case, and none of them support the proposition for which the Crown argues: that where there has been a bail application on one information, the result of that bail application by operation of the

section applies to a replacement information which charges additional offences not originally charged – that a CC s. 520 bail review jurisdiction can exist in respect of offences for which there has never been a CC s. 515 bail application. [ 22 ] I will not suggest any practical solution to the procedural difficulties that have arisen on this matter. I do not know what rights Mr. Rodger may have, or may wish to assert, as a result of there having been no application relating to judicial interim release made in respect of the 23 charges. Heard on the 13 th day of August, 2021.

Dated at the City of Edmonton, Alberta this 27 th day of August, 2021. B.R. Burrows J.C.Q.B.A. Appearances: Allison Crumpton and Angela Duffield for the Crown Jessica Cartwright for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice B.R. Burrows _______________________________________________________ Correction to the first sentence in para 18 (information to jurisdiction), now reads as: CC s. 520 is my only source of jurisdiction to review Mr. Rodger’s bail status.