r v. Mathavan, 2014 QCCQ 51

R. c. Vaithilingam 2014 QCCQ 51 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-097199-134 DATE: 6 January 2014; written reasons 7 January 2014 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Mathavan VAITHILINGAM Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] This matter requires consideration of the principles that should govern an application under section 523(2) (

b) of the Criminal Code . [1] Jurisprudence is scant. [2] [ 2 ] A list of the five counts charged against Mr. Vaithilingam will suffice to demonstrate their nature and gravity: section 342(1) ( c );

section 342.01(1)( a );

section 342.01(1)( b ); section 342(3)( a );

section 368.1. [3] Judicial interim release was denied in a previous judgment of this court. At that time Mr. Vaithilingam bore the burden to show cause for interim release because he had a pending case of a similar nature in Ottawa. Release was denied on the second ground. [ 3 ] At his preliminary hearing on 20 December 2013 committal for trial on the five counts listed above was not contested. The prosecution examined no witnesses and the defence briefly cross-examined two witnesses likely to testify at trial for the prosecution.

Apart from conceding the committal for trial, the questions in cross-examination could not have put in doubt the committal order. But the preliminary inquiry did afford an opportunity to present an application for interim release under section 523(2) ( b ). This application was not presented in writing, as required by the rules of the court, and proceeded to hearing without objection by the prosecution. No copy of the reasons for judgment in the previous hearing was provided in this hearing. [ 4 ] Section 523(2)(

b) allows a party to make an application to vacate an order previously made for interim release or detention. [4] The principles are the same whether the application is made by the prosecution for detention or by the defence for release. As agreed by the parties, the burden lies with the applicant to show cause for vacating the previous order and issuing a new order. It is agreed by the parties that to show cause the applicant must first show a marked change in circumstances . [ 5 ] An application of this nature is not a review of the original decision concerning release. There are provisions for review elsewhere in

Part XVI of the Code. This is an application de novo before a judge hearing a case on its merits and it can only be an application de novo if the applicant can show a marked change in circumstances. To the extent that the evidence discloses no such change the application is nothing but a disguised review of the previous decision. There are at least two compelling reasons not to allow such applications for disguised review.

A pragmatic concern is to prevent the proliferation of hearings in the same court on the same question and thus to promote the finality of judgment on an issue properly within that court’s jurisdiction. If this systemic screen did not exist, there would be no inhibition to a renewed application following a preliminary inquiry. Indeed there would be an incentive for this reason even to proceed to a preliminary inquiry that on the merits is largely without substance. The second reason is more abstract but no less important.

It is the principle of judicial comity by which judges of the same court show deference in the same matter to their colleagues. Accordingly, there can be no decision to “vacate” the order of a colleague unless there is a clearly authorised justification to depart from this principle. [ 6 ] Section 523(2)(

b) provides for such a justification but does so under significant limitations. It allows for a renewed application only on the hypothesis of a marked change in circumstances that have been brought out in evidence before the judge who is hearing a preliminary inquiry on the merits. No other judge is afforded this jurisdiction. [5] Only if the applicant discharges the burden to show such a change in circumstances need the judge proceed to consider the application on its merits with regard to the grounds for release or detention in section 515(10) and the related jurisprudence.

Without evidence of a marked change in circumstances, the application must fail as a disguised attempt at review. [ 7 ] There is a reason why section 523(2) (

b) allows for a renewed application at the conclusion of a preliminary inquiry: the

presiding judge heard the evidence. [6] That evidence might reveal a marked change in circumstances since the case previously came to court that would justify a fresh consideration of detention or release. That evidence could be relevant to the intrinsic merits of the case or it might be extrinsic to the merits of the case. For example, evidence intrinsic to the merits of the case might reveal a diminished likelihood of conviction, a lesser degree of participation or other information that could materially alter an evaluation of the grounds for release or detention.

Evidence extrinsic to the merits of the merits, but to the same effect, might include a catastrophic reversal of the health of an accused that requires treatment that cannot be provided within a detention centre or, conversely, evidence of a marked change in circumstance that merits revocation of an order for release. [7] [ 8 ] What then is a material change in circumstances? At the very least it must refer to evidence or information that did not exist, or could not reasonably have been acquired, at the time of the original hearing on release.

Again, this must exclude any attempt simply to review a previous decision. But it must be more than that as well. A material change in circumstances must be one that affords objective grounds to believe that consideration of that evidence would lead to a material change in the evaluation of the grounds for detention or release. This implies that a judge who hears an application under section 523(2) (

b) cannot substitute his or her view of the issue for that of the first judge. The second judge must conclude that a material change in circumstances causes a material change in the complexion of the case that would justify a different evaluation of the grounds for release or detention. A material change is one that means that the case is no longer what it was or that the circumstances of the accused are no longer what they were. [ 9 ] In this case the applicant identified three elements that, when taken together, amount to a marked change in circumstances.

The first is that he now has the opportunity of legitimate employment, apparently in the form of an offer of employment. Second, since the previous hearing on interim release in this matter the pending case in Ottawa was resolved by an acquittal. Third, the applicant’s family has come to court with an enhanced financial guarantee to secure his release. [ 10 ] These three elements do not amount to a marked change in circumstances. Therefore I conclude the applicant has not discharged the burden that would justify an evaluation de novo of the grounds for detention or release.

The three elements, taken alone or in combination, do not change the complexion of this case in such a manner as to call into question the conclusion of the judge that detention is justified on the second ground. This conclusion follows Rondeau [8] and the jurisprudence on this issue in Quebec and elsewhere. An offer of employment cannot be disparaged but it says little of the case presented at the previous hearing. An acquittal in the then-pending case does not, in itself and without more, negate relevant concerns about the second ground in this case.

The enhanced guarantee is a difference by degree that, similarly, cannot be considered a material change in circumstances. [ 11 ] To repeat, the burden of the applicant under section 523(2) (

b) is to show a material change in circumstances that would lead to an evaluation of the grounds of release and detention that is materially different from that reached by the first judge. If the applicant fails to discharge this burden, as is the case here, there is no basis on which to proceed further to a determination whether a different evaluation is appropriate. FOR THESE REASONS, the application is dismissed. ____________________________________ PATRICK HEALY, J.C.Q. M e Jérôme Gagné For the prosecution M e Georges Jabbouri For Mr. Vaithilingam Date of hearing: 20 December 2013