Before: Date of Sentencing: HER MAJESTY THE QUEEN - v. -, 2020 NBPC 2

PROVINCIAL COURT JUDICIAL DISTRICT OF MIRAMICHI Citation: 2020 NBPC 02 Date: January 16 th , 2020 Docket: 154512 Between: Before: Date of Sentencing: HER MAJESTY THE QUEEN - and - FOSTER ARSENAULT His Honour Cameron Gunn January 16th, 2020 Appearances: William Morrissy, Q.C. counsel for Her Majesty the Queen Maude Woods, duty counsel Foster Arsenault Introduction 1 . The accused in this case was charged, along with a number of other individuals, with offences arising while he was in custody at a federal penitentiary.

He first appeared before the court on October 11, 2018 by video pursuant to an order under s. 527 of the Criminal Code . Since that time he has made similar appearances through the same mechanism. 2 . The accused eventually elected the jurisdiction of the provincial court, pleaded not guilty and a trial was scheduled for the accused and several of the other co-accused for Novembers 27-29, 2019. 3 . Prior to trial the accused discharged his counsel and was granted an adjournment of his trial date.

On December 12, 2019 the accused appeared before the Court via video (once again through a s. 527 order) and his trial was scheduled for April 30, 2020. 4 . During his December 12 appearance the Crown indicated that the accused was scheduled to be released on January 17, 2020. As a result, they were opposed to his release and requested that a bail hearing be scheduled. A hearing was scheduled for January 14, 2020. The Crown had not previously objected to the release of the accused and there was no release order issued by any of the judges before whom he had appeared. 5 .

On the date of the hearing I raised a preliminary issue with counsel for the Crown and duty counsel who was assisting the accused. Specifically, I asked whether I had jurisdiction to conduct a bail hearing pursuant to s. 515 of the Criminal Code since the Crown had not objected to the release of the accused at his initial appearance and he was before the court never having been arrested for the offences of which he was accused. 6 . After hearing submissions from the parties, I determined that I did have jurisdiction to conduct the bail hearing.

To explain the reasons for my findings I will discuss the law dealing with bail and my analysis of that law to Mr. Arsenault's situation, 2 The Issue 7 . The matter before the court raised two issues: a. Do the provisions of

section 515 concerning judicial interim release apply to persons brought before a justice (where the term justice is used in this decision it means, in the case of New Brunswick, a provincial court judge as there are no justices of the peace in New Brunswick) pursuant to an order under

section 527 of the Criminal Code of Canada ; b. If so, is the ability to act pursuant to those provisions exhausted if objection to the released of the accused is not made by the Crown on the first appearance. The Law 8 . When a person is charged with a criminal offence the default position under the Criminal Code of Canada and The Canadian Charter of Rights and Freedoms is that the person will not be held in custody pending the resolution of their matter, but rather released on some

form of bail or, as it is referred to in the Criminal Code, judicial interim release I. 9. As the Supreme Court of Canada has noted the concept of bail "entrenches the effect of the presumption of innocence at the pre-trialstage of the criminal trial process and safeguards the liberty of accused persons". 10. At the same time, bail, while the default position, is not inevitable and the provisions of the Criminal Code that deal with bail allow ajudicial officer to detain an accused person pending the trial.

Any provision that allows for pre-trial detention must do so only with "justcause" and this obligation imposes a constitutional standard.' 11. The bail provisions that give effect to the concept described above are found in

Part XVI of the Criminal Code of Canada. Theseprovisions allow for the compelling of the appearance of an accused through various measures including the issuance of an R. v. Antic, 2017 SCC 27 , 2017 1 SCR 509, at para. 21. Antic, at para. 1. 3 Antic, at paras. 39 and 40. 3 appearance notice by a police officer, a summons issued by a court and the arrest and coerced appearance of an accused before a court.In certain circumstances where the accused appears before a court this part also deals with the judicial interim release of the accused. 12. The majority of

Part XVI is the product of the 1972 Bail Reform Act, S.C. 1970-71-72, c. 37.4 This part was recently amended by

An Act to Amend the Criminal Code, the Youth Criminal Justice Act and other Acts and tomake consequential amendments to other Acts, S.C. 2019 c. 25, (hereinafter Bill C-75). Bill C-75 made changes to

Part XVI includingincreasing the types of conditions that a police officer can impose on an accused, legislating a "principle of restraint" for police andcourts to give effect to the presumption of bail, requiring the circumstances of indigenous accused to be considered at bail, creating anew process called a judicial referral hearing and to consolidate various forms of release. 13.

As a result of the amendments in Bill C-75, the provisions governing the compelling of the appearance of an accused before court toanswer to a charge' of an offence can be summarized as follows: a. a person who a peace officer believes on reasonable grounds has failed to comply with a summons, appearance notice, undertaking orrelease order or to attend court as required (subject to limitations) may be issued an appearance notice to appear at a judicial referralhearing,' b. a person who a peace officer believes has committed a criminal offence but who has not been arrested as a result of the limitations onarrest found in section 495(2) may be issued in appearance notice (subject to limitations); 4 Antic, paras 28 to 31. 5 This decision deals with indictable offences.

Part XVI is incorporated by reference by s. 795 for

summary conviction offences. 6

Section 496

Section 497 4 c. a person who is arrested by a peace officer without warrant may be released from custody by a peace officer by being issued an appearance notice or upon giving an undertaking to the peace officer;8 d. a person who is arrested by a peace officer with warrant, and the warrant is endorsed by a justice, may be released from custody bya peace officer by being issued an appearance notice or upon giving an undertaking to the peace officer,' e. a justice may issue a summons or a warrant for the arrest of the accused.

The summons shall be the default issuance unless thejustice has reasonable grounds to believe that it is necessary in the public interest issue a warrant of arrest for the accused,' f. a provincial court judge or designated justice may issue a summons or a warrant for the arrest of the accused in the context of aprivate prosecution subject to conditions for issuance,' 1 g. a justice may issue a summons or warrant for the arrest of the accused where the justice has reasonable and probable grounds tobelieve that it is necessary in the public interest notwithstanding that an appearance notice or undertaking has been confirmed, a

summons has been issued, or the accused has been released conditionally or unconditionally; 12 h. a justice may issue a warrant for the arrest of the accused where the accused fails to attend court in accordance with any of the forms of compelled appearance or it appears that a summons cannot be served because the accused is evading service;13 i. a justice may issue a warrant for the arrest of the accused who is required by a summons to appear at a time and place stated in itfor the purposes of the Identification of Criminals Act and has not appeared,' j. a person who is confined in a prison may be brought before a court, judge, justice or provincial court judge before whom theprisoner is required to attend by order of 8

Section 498 9

Section 499 I°

Section 507 II

Section 507.1 12

Section 5120) 13 Section 512(2) "

Section 512.1 and s. 512.2 5 a judge or provincial court judge (in the latter case if the prison is in the territorial jurisdiction of the provincial court judge).15 14. If a person is arrested with or without wan-ant and not released, pursuant to s. 503, they are detained in custody and must be takenbefore a justice. A person taken before a justice is dealt with in accordance with the provisions of s. 515. 15. The sections described in the preceding paragraphs deal with the ways in which an accused may be compelled to appear before thecourt to answer to a charge. They do not, in and of themselves, deal with the laying of the charge.

Section 504 indicates that anyone who, on reasonable ground believes that a person has committed an indictable offence 16 may lay in information in writing and under oathbefore a justice.

Section 507 says that a justice who receives an information laid under

section 504 by a public official shall, in any casein which the person has not been arrested with or without warrant, issue either a summons or warrant for the arrest of the accused tocompel the accused to attend. 16. Section 507(4) makes summons the default mechanism unless the allegations of the informant or the evidence of any witnessdiscloses reasonable grounds to believe it is necessary in the public interest issue a warrant for the arrest of the accused. 17. While Bill C-75 has made some amendments to

Part XVI, s. 527 was not amended and none of the amendments that were made havea direct impact on the jurisdictional question before the court. 18. Courts have considered the scope and application of s. 515 in relation to the manner in which persons come before a court to answerto a charge of an offence. These decisions have not always been in concert. Specifically of relevance to the question here courts have heldas follows: 15

Section 527. 16 This decision deals with indictable offences.

Part XVI is incorporated by reference by s. 795 for

summary conviction offences. 6 a. R. v. Hebert, (1984) (NB CA), 54 N.B.R. (2d) 251 (NBCA): The words "taken before a Justice" in s. 515 (thens. 457) have reference to a person in custody following an arrest and a person appearing as a result of an appearance notice cannot be subject to an objection to their release upon their appearance as required by the appearance notice;17 b. R. v. Nowazek 2018 YKCA 12: A summons has nothing to do with judicial interim release because the person is not "taken before a justice" as they are not in custody;18 C. R. v.

Goikhberg 2014 QCCS 3891: A person taken before a judge pursuant to s. 527 is not a person taken before a justice under s.515 for the purpose of a bail hearing. Where the purpose of the order has been carried out, the prisoner is returned to the place where he was confined. There is no order to detain the prisoner who is already legally in custody pursuant to a previous valid order;' Sand d. R. v. Onalik, 2006 NLTD 108:

Section 5150) makes no mention that the person charged must be under arrest. It is not alwaysnecessary to use the deprivation of a person's liberty by way of a warrant of arrest to ensure the person's appearance before a justice. A justice has power under s. 515 to deal with persons before them pursuant to a summons.20

19. The Supreme Court of Canada has recently addressed the issue in a different context than that which is before this court, but whichhas relevance. In R. v. Penunsi,' the Court held that the bail provisions in the Criminal Code apply to the peace bond provisions. Inreaching that decision the Court touched on matters relevant here. Specifically, the Court held that: a. The default process for compelling attendance is the issuance of a summons;22 b. Where a defendant appears before a justice pursuant to a summons and the hearing is adjourned, the justice has no jurisdiction toimpose interim conditions 17 R .v.

Hebert, (1984) (NB CA), 54 N.B.R. (2d) 251 (NBCA) Is R. v. Nowazek 2018 YKCA 12 at para. 88; see also R. v. Goikhberg 2014 QCCS 3891, at para. 55. 19 Goikhberg, at para. 59. 20 R. v. Onalik, 2006 NLTD 108, at paras. 34-41; see also K v. Lalo, 2002 NSSC 157. 21 R. v. Penunsi, 2019 SCC 39 22 Penunsi, at para. 65. 7 pending the merits hearing. In coming to this conclusion, the Court adopted Fitch J.A.'s

interpretation in Nowazek, as discussed above, and referenced Goilchberg, and Hebert;23 c. If new information comes to light after the issuance of a summons which raises concerns regarding the risk the defendant poses to the public or the likelihood of his or her attendance at the proceeding, an arrest warrant may be sought at that time. The mere fact of an adjournment of the proceedings will not be sufficient to issue a warrant.24 Analysis 20. In interpreting the judicial interim release provisions, they must be interpreted in a manner that gives effect to their purpose.

Theprovisions were enacted to ensure that accused persons have the ability to be released pending their trial but also to ensure that wheredetention is required it is possible. 21. In this case there is no indication that any summons or warrant pursuant to

section 507 was issued. Rather, on the face of theinformation there appears the endorsement (October 11, 2018 video order), This, it can be inferred, refers to a request for an orderpursuant to

section 527. It appears as if everyone concerned operated under the impression that neither a summons nor a warrant forarrest was required as the s.527 order would operate as the compulsion to attend. 22. The law appears clear, after Penunsi, that had a summons been issued that s. 515 would have no application. Cases that hold to thecontrary, including Onalik, are clearly overtaken by the pronouncement of the Supreme Court of Canada. No summons was issued in thiscase. 23.

The accused suggests that where an accused is in custody and is brought to court pursuant to a s. 527 order that the only way that abail hearing would be available would be for 23 Penunsi, at para. 66. 24 Penunsi, at para. 67. 8 there to have been an arrest. At the first appearance of the accused the Crown could then object to release and attempt to show causepursuant to s.515. 24. There is some merit to the argument of the accused. The provisions of

Part XVI relate to the compulsion of a person to attend beforea court to answer to a charge in information, the bail of persons who are subject to potential detention prior to trial, the capacity andrequirements of the laying of the charge and the obligations of the justice upon the receipt of an information laid before the court.

Section 507, as indicated, governs the requirements of a justice where an information is laid before them. The

section gives thejustice three options: a. to not find that the case has been made out to compel the accused to attend before him to answer to a charge of an offence; b. to find that the case has been made out to compel the accused to attend before him to answer to a charge of an offence and issue asummons to the accused; or

c. to find that the case has been made out to compel the accused to attend before him to answer to a charge of an offence and issue awarrant for the arrest of the accused as there are reasonable grounds to believe that it is necessary in the public interest to do so.

Section 507 does not provide explicitly, where the accused is in custody on other matters, that instead of one of the three optionsabove the justice may issue an order under s. 527. Based upon the argument of the accused it would appear that where an information islaid pursuant to

section 504 that a judge is compelled to do one of the three things under

section 507. If the accused is in custody then,after having issued either a summons or a warrant for the arrest of the accused, a judge of the superior court of criminal jurisdiction or aprovincial court judge may order in writing that a person confined in a prison be brought before the court, judge, justice or provincialcourt judge before whom the prisoner is required to attend. This would be the position of the accused in this matter. 9 27.

Counsel for the Crown on the other hand suggest that s.527 operates as a standalone order and that when an information is laidbefore the court alleging an offence and the provincial court judge is informed that the accused is confined in a prison then a s. 527 ordermay issue without other process and that the person who is then brought before a court is taken before a justice in the sense conveyed bys. 515 and is subject to the judicial interim release provisions therein. 28.

In support of this position counsel for the Crown points to subsection s. 527(5) which says that where the appearance of a prisoneris required for the purposes of paragraph (1)(

a) or (b), the judge or provincial court judge shall give appropriate directions in the orderwith respect to the manner in which the prisoner is (

a) to be kept in custody, if he is ordered to stand trial; or (

b) to be returned, if he isdischarged on a preliminary inquiry or if he is acquitted of the charge against him. 29. He also asserts that all of the cases described above are distinguishable on their facts and that the only case that provides specificguidance on the issue is R. v. Katirizogloy. In that case Van Camp, J specifically held that a person "charge with an offence who isbrought before the court by the judge's order" (meaning

section 527) is "one who is taken before a justice within the meaning of

section 515."25 30. It is worth noting that in Nowazek Justice Fitch acknowledged this case and, though he said he preferred the reasoning inGoikhberg, found that he did not have to resolve the point of whether or not a person taken before a judge pursuant to an order unders.527 can be said to be "taken before a justice" as it was not the situation before him. 31. The problem with the position of the Crown is that the information in this case was laid in accordance with s. 504.

When aninformation is so laid by a public official as described in s. 507, then s. 507 imposes one of the three mandatory actions described above.The issuance of an order under s. 527 is not mentioned as an option. 2)R. v. Ka ogloy, [1989] O.J. No. 1872, 1989 Carswell 1933 at para. 4. 10

Section 527 also specifically reads that an order may be made procuring the attendance of the accused before the judicial officer"before whom the prisoner is required to attend". Reading the entire

part in context it appears clear that s. 527 is meant as an aid to theprocurement of an already required prisoner and not a standalone process to compel attendance. 33. With respect to subsection 527(5), which the Crown quotes in support of its position, there is an issue with that section. It describesthe power of the judge ordering the appearance of the accused "where the appearance of a prisoner is required for the purposes ofparagraph (1)(

a) or (b)," to provide directions with respect to their detention in certain limited circumstances. The first difficulty is thatparagraph (1)(

a) or (

b) do not describe purposes but rather preconditions to the issuance of s. 527 order. A second difficulty is that thedetention directions described only relate to a person who is ordered to stand trial. It appears that the

section has either been modified ina manner that makes it internally inconsistent and/or that it has limited purpose which is not relevant to the situation of the accused.Finally, an unrestricted power to detain pursuant to this subsection could not be consistent with the constitutionally protected right of theaccused to bail. 34. As such I find that s. 527 is not a standalone order to compel attendance but rather is meant as aid to the procurement of an accusedwho is otherwise compelled to attend by summons or warrant (or conceivably through some other mechanism in this Part alreadydiscussed). 35.

This does not, of course, end the matter. Mr. Arsenault was brought before the court subject to a s. 527 order without summons orwarrant. That order may have been improperly issued but nonetheless he was brought before the court and has been brought before the court on subsequent occasions. As a result, the court has jurisdiction over him.26 26 Section. 485 and R. v. Kranenberg (1980), (SCC), 51 C.C.C. (2d) 205 (S.C.C.). Seealso R. v. Millar 2012 ONSC 1809 for a good discussion of the history of the distinction between jurisdiction over the person andjurisdiction over the offence. 11

36 . Once the court had jurisdiction over the accused, then it must have some method of procuring his continuing attendance. Had he appeared by summons or appearance notice he would have, pursuant to the initial and continuing effect of those documents, a continuing obligation to appear as ordered. The same would be true were he released after a bail hearing having been arrested, had a bail hearing and been released. As it stands, other than when he is in custody and subject to a potential s. 527 order, he is at liberty and there are no provisions that compels the accused to reattend. 37 .

It would be an absurdity for the court to have jurisdiction over the offence and the offender but have no method or process to compel his appearance to answer to the charges. The powers of the provincial court judge must be found to have been conferred by the Criminal Code either expressly or by necessary implication.' As there is a clear lacuna in the legislation, I find that in the circumstances before the court by necessary implication, Mr. Arsenault is a person taken before a justice and s. 515 applies conferring jurisdiction on me to hold a bail hearing. 38 .

I am bolstered in my decision in that this process preserves the constitutionally protected right of the accused to reasonable bail while at the same time ensuring that the court has the capacity and the ability to try the matters on their merits.

Cameron Gunn, J.P.C. Katirlzogloy , quoting Ritchie J. in Doyle v. The Queen, (1976) (SCC), 29 C.C.C. (2d) 177at 181. 12