2014 QCCQ 2156, 2014 QCCQ 2156

JH 5280 Piazza c. R. 2014 QCCQ 2156 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-098190-132 DATE: 14 March 2014 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ Antony PIAZZA Applicant – Accused v.

THE QUEEN Respondent – Prosecutor _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr.

Piazza is charged with four offences: possession of an explosive substance; [1] attempt to take an explosive substance aboard a civilian aircraft; [2] attempt to place or cause to be placed on board an aircraft in service anything that is likely to cause damage to the aircraft, that will render it incapable of flight or that is likely to endanger the safety of the aircraft in flight; [3] mischief over five thousand dollars. [4] On 27 October 2013 authorities at Trudeau Airport discovered two items in the handle of Mr. Piazza's luggage.

The prosecution alleges that each of these items could be detonated and, if detonated, could cause physical damage to things and people. Hence the four charges. [ 2 ] At the conclusion of the preliminary inquiry in which Mr. Piazza was committed for trial on all four counts, he presented an application for interim release under section 523(2)( b ). The defence sought to argue that as a result of developments since release was first refused there is now a reduced probability of conviction or a significant sentence.

The applicant claims either that the items seized in his luggage could not be detonated or, if they could be detonated, would cause no significant damage to things or people. On this basis the applicant submits that there has been a material change in circumstances that justifies a decision to vacate that refusal and to make an order for the applicant’s release. [ 3 ] For substantially the same reasons expressed in Vaithilingam [5] the application is dismissed. [ 4 ] The application is entitled as follows: MOTION TO REVIEW THE DETENTION ORDER RENDERED BY A JUSTICE OF THE PEACE IN VIRTUE OF

SECTION 515 OF THE CRIMINAL CODE . An application under section 523(2)(

b) does not allow " review " of the initial decision to grant or refuse release. [6] The

section affords no jurisdiction for this purpose. Nor does it allow generally for a hearing de novo on the question of interim release or detention. It allows consideration de novo of the criteria for release or detention if, and only if, there is fresh evidence of a material change in circumstances relating to the alleged offence or the accused. [7] In the absence of such evidence it is not a consideration de novo but a disguised application for review of the decision by the first judge to grant or refuse release. On an application under section 523(2)(

b) the evidence must be demonstrably new and different from the evidence considered by the first judge. If there is such evidence it must be material in the sense that it puts the criteria for release or detention in a markedly different perspective. Only this could be “cause”

within the meaning of the section. In this case there is no evidence about the alleged offender that could satisfy this standard and there is no evidence about the alleged offences that satisfies this standard. [ 5 ] The defence conceded in this case that the evidence at the preliminary inquiry justifies committal to trial. The committal order implies that the evidence is sufficient in the sense that a reasonable jury, properly instructed and acting judicially, could return a finding of guilt. This is itself a material change in the evolution of the case.

It is not for me to consider at a preliminary inquiry whether a jury would or will make a determination of guilt; nor is it for me to assess the credibility of witnesses or the weight of the evidence for the prosecution.

But that is what the applicant effectively invites me to do by submitting that the evidence before me supports the conclusion that the probability of conviction or a substantial sentence is diminished. [8] That submission could not be sustained without an extensive evaluation of the merits of the case that far exceeds a “limited weighing” of the evidence within the constraints imposed by the jurisprudence. [9] That limited assessment does not permit the judge at the preliminary inquiry to determine whether the evidence discloses a reasonable doubt or even the probability of a reasonable doubt.

If the evidence is otherwise sufficient for committal, these questions are for the trier of fact at a trial. The points enumerated in paragraph 10 of the applicant's motion seek reconsideration of matters already considered by the first judge in relation to the first and second grounds in section 515(10). This is not evidence of a material change in circumstances. [ 6 ] In this case the sufficiency of the direct and indirect evidence for committal is a material change in the circumstances of the case because it implies that there is a case to answer at trial.

It is logically possible for the evidence at a preliminary inquiry to show a reduced probability of conviction with a substantial sentence and, at the same time, be sufficient for committal. That does not imply that an application for release or detention under section 523(2)(

b) should necessarily succeed. Nor do I suggest that the sufficiency of the evidence for committal necessarily precludes a decision favorable to the accused under section 523(2)( b ). The Code provides that it can succeed only if cause is shown by the applicant. This is why there must be evidence of a material change in circumstances. The applicant’s burden is significant. The evidence presented on the application must be more than different in degree from the evidence presented before the first judge. The application must be substantively more than a second hearing of the first hearing.

It must be different in kind and must transform the nature of case into something unlike the case before the first judge. In the absence of such evidence the application will fail to ensure the stability of rulings on substantially similar issues and to ensure judicial comity among judges and judgments of the same court. [ 7 ] In this case the first judge refused release on the first and second ground. I do not know whether that decision was the subject of review in the Superior Court but there is nothing before me to suggest that it was.

The decision of the first judge was amply justified by the evidence presented at that time. There is nothing in the evidence before me to suggest that the decision of the first judge on the first or the second ground should be vacated. I have considered that evidence carefully and I am satisfied that it is sufficient to commit Mr. Piazza to trial on the four counts in the information. I am also satisfied that there is no marked change in the circumstances that would justify a decision to vacate the decision of the first judge.

Such a decision is discretionary in nature and after careful consideration of the evidence I decline to exercise that discretion. [ 8 ] These observations are better understood if the structure of decisions concerning interim release is taken into account. Following a decision concerning interim release on any offence other than one listed in

section 469, there is an avenue of review in the superior court. The purpose of this review is to determine whether the first decision was made in accordance with the applicable principles in section 515(10) and the related jurisprudence. [ 9 ] There are three variations on this scheme. One allows for a reconsideration of detention in case of delay in accordance with

section 525. If the accused is charged with an indictable offence the custodian of the accused is required after ninety days to apply for a hearing to determine whether the accused should be released from custody. This requirement is mandatory. Although I have never seen its observance in practice, it applies whether the accused was previously subject to a detention order following a hearing or waived an earlier opportunity to be heard concerning interim release. This is not strictly a review to determine whether an earlier decision was made in accordance with the principles governing interim release.

It is a hearing de novo to ascertain whether continued detention is warranted in view of the delay during which the accused has been in custody. [ 10 ] The second variation is a determination under section 524(4) whether a person already on interim release should be released afresh following an alleged breach of process or the alleged commission of another indictable offence.

This is also not a review of a previous decision concerning interim release because it is a hearing de novo that is contingent upon non-compliance with process or the alleged commission of another indictable offence since release was previously granted.

It is contingent upon alleged wrongdoing posterior to the conditions under which the accused was already at liberty. [ 11 ] The third variation is contemplated by section 523(2) and allows for a reconsideration of a previous order of detention or release at the conclusion of a preliminary hearing or at any time in the course of a trial - but only by the presiding judge.

For the reasons already expressed an application of this nature imposes upon the applicant the burden to produce evidence of a material change in circumstances, relating to the alleged offence or the alleged offender, that would make the conclusions of the first judge demonstrably unsustainable. It will be uncommon for such an application to be based solely on the personal circumstances of the alleged offender as divorced from the circumstances relating to the alleged offence. Once again, however, an application based on this

section is not a review of the first decision but a determination whether fresh evidence of changed circumstances would justify vacating a previous order of release or detention and the issuance of a new order. Provided the criteria of

section 523 are met, an application may be made whether or not a previous decision concerning release or detention was subject to review under

section 520 or

section 521. [10] It is patently clear, however, that neither

section 520 nor

section 521 allows review of a decision under

section 523 if the second judge does not vacate the decision of the first judge.

Section 523 says that the second judge may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [Emphasis added.]

Section 520 allows for review in these terms: If a justice […] makes or vacates any order under paragraph 523(2)( b ), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order. Thus the review of a decision under 523 can only exist where the second judge has vacated and varied the order of the first judge. The evidence before the second judge must be significantly different from the evidence before the first judge. The decision of the second judge must be different from that of the first judge.

If the second judge decides not to do so there is no review of that decision in the superior court. The first decision remains in effect because there has been no decision to vary it on review and the second judge has decided that no new evidence demonstrates a material change in circumstances. [11] [ 12 ] None of the three variations provides for a review of a previous decision under

section 520 (accused) or

section 521 (prosecution). All of them allow for a hearing de novo but only to the extent that each of them is contingent upon some subsequent development: delay (section 525); breach (section 524); or a material change in circumstances (section 523). The burden under section 523(2)(

a) and (

b) lies with the applicant to produce new evidence of a material change in circumstances that compels a different perspective of the issues relating to release or detention that make the conclusions of the first judge no longer sustainable. [ 13 ] As the present application is not founded on a change in the circumstances of the accused, it can only succeed if the evidence adduced in the preliminary inquiry compels a view of the case that the various conclusions of the first judge concerning the first and second grounds in section 515(10) are no longer sustainable and should be vacated. There is no such evidence .

The applicant has thus failed to discharge the burden to show cause why the grounds in section 515(10) should be reconsidered. This is an end of the present application. [ 14 ] This does not mean that the accused is without any recourse. As sections 520 and 521 do not allow for review where the second judge does not vacate the decision of the first judge, the only ground and mechanism to review the decision of the second judge would be a failure of jurisdiction by way of certiorari . Alternatively, he can await a request of the custodian under

section 525 of the Code. [ 15 ] On 7 March 2014, while this judgment was under reserve, I received the letter reproduced below as Appendix A. I will say nothing of this special pleading except that it is misconceived and inappropriate. For these reasons the application is dismissed. ____________________________________ PATRICK HEALY, J.C.Q. M e Alexandre Gauthier For the prosecution M e Thomas Walsh and M e James A. Cocciardi For Mr. Piazza Date of hearing: 23 and 24 January, 20 February 2014 APPENDIX A