Her Majesty the Queen - v. -, 2021 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 9 Date: January 14, 2021 Information: 90183763 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Justin Bear-Maguire Appearing: Mr. Shawn Blackman For the Crown RULING ON AN EX PARTE APPLICATON FOR THE ISSUANCE OF A

SECTION 810.2 INFORMATION H.M. HARRADENCE , J [ 1 ] On December 23, 2020, Cst. Martin delivered a package to the court requesting an Information to be sworn under

section 810.2 of the Criminal Code and a warrant to issue for the arrest of the defendant, Justin Bear-Maguire.

Section 810.2(1) reads as follows: Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in

section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named. [ 2 ] As I understand it, the usual practice is for the material to be placed before a judge to read, consider, and then for the judge

to meet with the Informant to swear the Information and issue process. I believe that past practice has been that in the vast majority ofcases a warrant would issue for the arrest of the defendant. That individual was usually in custody, serving a sentence, and would bearrested and brought before the court so that conditions of release may be considered and imposed. For instance, in this case, by mycount the material delivered by Cst. Martin suggests that this defendant be released on bail pending the

section 810.2 hearing subject tono less than 17 conditions. [3] In my view, R v Penunsi, 2019 SCC 39, 378 CCC (3d) 37 [Penunsi] requires a change in this practice. I requested that ahearing be scheduled for December 24, 2020 and asked the Court Clerk to suggest to Cst. Martin that she consult with Crown counsel. At the hearing on December 24, 2020, Mr. Blackman appeared as Crown counsel. As a result of discussions between myself and Mr.Blackman, he suggested that he would file further material including case law, and the hearing was adjourned to January 8, 2021. [4] When the hearing resumed on January 8, Mr.

Blackman did not file any further material but made submissions in support ofthe issuance of a warrant. During his submissions Mr. Blackman conceded that the Crown was not relying on an allegation that thedefendant would fail to attend court – the primary ground – as a justification for the issuance of a warrant. Also, on January 8, theCrown declined the opportunity to provide further evidence to amplify the material that had been provided by Cst. Martin. [5] The material filed by Cst.

Martin contains a short affidavit appending the consent of the designate of the Attorney General ofSaskatchewan to the proceedings, a report to Crown counsel which includes a list of the criminal convictions of the defendant togetherwith a brief

summary of the circumstances of some of the convictions, and a selection of extracts and summaries of Correctional ServiceCanada (CSC) documents and Parole Board documents. [6] In Penunsi, the defendant challenged the application of the judicial interim release provisions to preventative justiceproceedings such as peace bonds. He had some success, including at the Newfoundland Court of Appeal. However, the Supreme Courtreversed the Court of Appeal’s ruling holding that judicial interim release provisions apply to peace bond applications.

In this regard, theCrown’s material is correct to refer to Penunsi as it does authorize the issuance of a warrant where circumstances justify it. [7] The Supreme Court in Penunsi went further to provide critical guidance on when a summons or warrant should issue. Theprovisions of

section 507 must be applied. [8] As Penunsi makes clear, section 507(4) requires in all cases where a justice is considering whether to issue a summons or awarrant that a summons is the default position: [52] … Rather, they adapt the procedures for compelling attendance to a preventive justice context. While this will be discussed ingreater depth below, I pause to stress that the powers of arrest and judicial interim release are a means of last resort, and will only beavailable where it is demonstrated on reasonable grounds that it is necessary in the public interest to issue a warrant.

The default processis the issuance of a summons (s. 507(4)). (See also para. 65) [9] If the Crown is able to establish on a balance of probabilities that the defendant would not attend court or that the defendantis an imminent threat of danger to the community, the justice/judge can issue a warrant as part of a peace bond proceeding. In thepresent case, with the Crown’s concession that the primary ground is not an issue, the issuance of a summons or warrant is restricted to aconsideration of whether there is evidence of an imminent threat. At the hearing on January 8, 2021, I refer Mr.

Blackman to para. 71 ofPenunsi, where Justice Rowe states the following: [71] Where there is no indication that the defendant will fail to attend court pursuant to a summons, the justice must be satisfied thatthere is an imminent risk of the harm contemplated by the relevant peace bond provision before issuing an arrest warrant. For example,where an Information is sworn under s. 810.2(1), there must be an imminent risk of serious personal injury before an arrest warrant maybe issued.

In order to be satisfied that the defendant poses an imminent risk, the informant or prosecutor must be able to establish withsufficient specificity the particulars of the risk posed by the defendant. Imminent risk is not a generalized risk based on the defendant’srecord. An imminent risk is an urgent or immediate risk.

While not every peace bond provision requires the informant to name the victimof the feared violence, it is difficult to conceive of a situation where imminent risk can be established without reference to an identifiableperson or group at risk of being harmed for the purposes of issuing an arrest warrant (see Smith v. Jones, (SCC), [1999]1 S.C.R. 455 (S.C.C.), at para. 84, regarding what constitutes imminent risk in the context of the public safety exception to solicitor-client privilege). [10] It is within this legal framework that I consider the material filed by Cst. Martin.

I note that it does not include specificreference to an identifiable person or group. When asked about this at the hearing Mr. Blackman indicated that the community of Sandy

Bay at large, where the defendant has indicated he wants to live, is the concern. The material also does not include a specific offence, but merely refers to a personal injury offence which is defined in

section 752. The material does say the following: • The proposed defendant, as of December 1, 2020, indicates that he is planning to live with his mother in Sandy Bay. There is an indication that this is a good residence for him; • The proposed defendant is a 26-year-old Indigenous male who is serving his first federal sentence. He has a limited but violent criminal record (2015-convictions for sexual assault causing bodily harm and aggravated assault, both occurring on the same day) and was transferred from the Saskatchewan Penitentiary to the Stony Mountain Penitentiary sometime in 2019.

The reason for his transfer was violent behaviour, including muscling behaviour; • While incarcerated, the proposed defendant has successfully completed Adult Basic Education I and the Aboriginal Healing Program but according to Cst. Martin’s material, “early in his sentence then unfortunately regressed after completing those programs and did not complete any other programs”. (para 18 of Cst.

Martin’s report); and • While incarcerated, he has not been charged criminally with any offences but has been charged institutionally on at least 12 occasions for actions varying in severity including possession of a jail-made stabbing weapon and making disrespectful comments to staff. Despite these charges, while at Stoney Mountain, his status has been lowered to a medium security level. [ 11 ] Cst. Martin’s material also includes a quotation from a portion of the Parole Board of Canada’s report dated September 24, 2020, which is said to be the most recent report.

Importantly, this is the report which confirms the detention order requiring the defendant to be held until his warrant expiry. The defendant’s warrant on his current sentence expires on January 27, 2021, after which he will be released by the CSC with no conditions, having completed his sentence. The portions of the Parole Board report included in Cst.

Martin’s material recognize that this defendant has one of the milder criminal histories to satisfy the detention criterion and has made some progress towards satisfying his risk factors, but in the Board’s view the progress is insufficient. [ 12 ] At this stage of the proceedings there are two questions which I must answer: 1.) Is the information before me sufficient to permit the swearing of an Information as outlined in

section 810.2? 2.) Does the material, taken as a whole, justify the issuance of a summons or a warrant as outlined in

section 507 and interpreted in R v Penunsi ? [ 13 ] In these circumstances, the first question is easily answered. Cst. Martin swears, in her affidavit, to a belief on reasonable grounds of a fear that the proposed defendant will commit a serious personal injury. I also assume as part of the process she will swear the contents of the proposed information before me. The answer to the second question starts with the presumption that a summons is the default position.

Only if the material satisfies me of an imminent risk, an urgent or immediate risk which is more than a generalized risk based on the defendant’s record, am I justified in issuing a warrant. I am of the view that this material, at best, only indicates a generalized risk and that the Crown has failed to satisfy me of an imminent risk posed by the defendant’s released. [ 14 ] In conclusion, I will administer the oath with Cst. Martin swearing the Information.

I will further direct that a summons issue by the Court to be returnable on Monday, March 1, 2021, in Courtroom #1, Prince Albert Provincial Court, at 1:30 p.m. [ 15 ] I wish to indicate a postscript to this decision. Penunsi does allow for the application for an arrest warrant after a summons is issued if the information comes to light that shows the defendant poses a risk to the public ( Penunsi , para. 67 ). Penunsi is also based on the presumption that there is an urgency to have this hearing on the merits concluded ( Penunsi , at para. 61 ).

I would hope that all parties will use their best efforts in this case to bring this matter to a timely conclusion. Dated this 14th day of January 2021, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ H.M. Harradence, J