R v. Mukpo, 2012 NSSC 107

SUPREME COURT OF NOVA SCOTIA Citation: R v. Mukpo, 2012 NSSC 107 Date: 20120309 Docket: CRH 375200 Registry: Halifax Between: Her Majesty The Queen Provincial Crown v. Gesar Arthur Mukpo Accused LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski Heard: March 1, 2012 in Halifax, Nova Scotia Written Decision: March 9, 2012 Subject: Scope of review by Supreme Court under

section 520 of bail conditions of the Criminal Code imposed in Provincial Court, for which an accused seeks a variation on the basis of changed circumstances? Also requires consideration of the scope of Provincial Court jurisdiction under s. 523(2) to vary bail conditions imposed in Provincial Court, in cases where the Crown will not consent under s. 523(2)(a).

Summary: Accused charged with

summary assault, agrees to release conditions after being initially detained. Accused advised that the Provincial Court considers itself not to have jurisdiction unless the Crown consents to the changes requested. Thereafter accused seeks to change release conditions in this Court. Issue: Where the Crown will not consent to the changes, should an accused make the application for variation in Provincial Court under s. 523 or proceed by way of Notice of Review under s. 520 in Supreme Court? Result: Such accuseds should file a Notice of Review in Supreme Court under

section 520 of the Criminal Code .

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R v. Mukpo, 2012 NSSC 107 Date: 20120309 Docket: CRH 375200 Registry: Halifax

Between: Her Majesty The Queen Provincial Crown v. Gesar Arthur Mukpo Accused Judge: The Honourable Justice Peter P. Rosinski . Heard: March 1, 2012, in Halifax, Nova Scotia Counsel: John Scott, for the Provincial Crown Accused, Self-Represented By the Court : Introduction [ 1 ] Mr. Mukpo is charged with having committed an assault contrary to

section 266(

B) of the Criminal Code on November 1, 2011. He was arrested and detained in custody until he was released by consent on November 14, 2011. His release was effected by a recognizance with conditions and one surety. Conditions “ G ” and “ H ” thereof read as follows: G - Curfew: Remain in your residence [316A Purcells Cove Road, Halifax, Nova Scotia] from 10:00 p.m. until 6:00 a.m. the following day seven days a week except: 1. When at regularly scheduled employment and travelling to and from that employment by a direct route, provided that you notify Halifax Regional Police in advance at 490-5016; 2.

When dealing with a medical emergency involving you or a member of your household; H - to prove compliance with the curfew condition by presenting yourself at the entrance to your residence should a peace officer and/or your supervisor attend there to check compliance.

[ 2 ] On January 20, 2012, Mr. Mukpo appeared in Provincial Court seeking to change the conditions of his recognizance. The Crown Attorney did not consent to the changes, consequently the Provincial Court took “ no action ” as it considered itself without jurisdiction as I understand it, pursuant to s. 523(2) (

a) of the Criminal Code . [ 3 ] On January 24, 2012, Mr. Mukpo filed a Notice of Hearing pursuant to s. 520 of the Criminal Code in this court. He sought changes to his recognizance, specifically: “ conditions G and H seeking a variation on curfew. Have work offers in USA - need to travel. Am seeking to appeal the curfew ” . [ 4 ] At Crownside Chambers January 26, the matter was set down for hearing on March 1, 2012. At the hearing I questioned the Crown Attorney whether this court has jurisdiction under s. 520 or whether the application to vary the recognizance should properly be heard in Provincial Court.

I was advised that the Provincial Court Judges ’ s bench has taken the position that under s. 523(2)(a), if the Crown does not consent, the Provincial Court has no jurisdiction to hear an application to “ vacate an order ” previously imposed by it regarding the release of an accused. [ 5 ] I advised the Crown and Mr. Mukpo that I would like to examine the issue of jurisdiction, and that I would confirm my position to them on March 9. At my suggestion, the Crown and Mr.

Mukpo prepared to proceed to present evidence and argument, on the presumption that this court has jurisdiction, and to avoid another appearance in this court. Mr. Mukpo took the stand and testified as to his circumstances, and why the variation he seeks is appropriate. Having heard the evidence, the Crown Attorney indicated that he would be prepared to consent to the variation request, since at the time the recognize was placed, Mr. Mukpo had another (earlier) s. 266(

b) charge outstanding, but that he was acquitted on that charge on January 10, 2012. Moreover, Mr. Mukpo had no other outstanding matters, no record, and it would appear unfair in the circumstances to require him to strictly comply with the curfew given his employment situation. [ 6 ] Firstly then regarding the issue of jurisdiction. The Statutory Context [ 7 ] Section 523(2) presently reads: Despite subsections (1) to (1.2), (

A) the court, judge or justice before which or whom an accused is being tried, at any time, (

B) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in s. 469, or (

C) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1.), without such consent, at any time i - where the accused is charged with an offence other than offence listed in

section 469, the justice by whom an order was made under this Part or any other justice, ii - where the accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a Superior Court of criminal jurisdiction for the province, or iii - the court, judge or justice before which or whom an accused is to be tried,

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. [ 8 ] On August 15, 2011 [SI / 2011 - 62] section 523 (1.2) came into force. That required an amendment to subsection (2) from “ notwithstanding subsections (1) and (1.1)... ” to “ despite subsections (1) to (1.2)... ” . [ 9 ] Thus, in its material respects, section 523(2) has remained the same since December 12, 1988. [ 10 ] Before December 12, 1988 that

section was numbered 457.8(2) which read: Notwithstanding subsections (1) and (1.1), (

a) the court, judge or justice before whom an accused is being tried, at any time, (

b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in

section 427 [the present

section 469], or (

c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time i - where the accused is charged with an offence other than offence listed in

section 427, the justice by whom an order was made under this Part or any other justice, ii - where the accused is charged with an offense listed in

section 427, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or iii - the court, judge or justice before whom an accused is to be tried, 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. [ 11 ] The present s. 520 reads: (1) if a justice, or a judge of the Nunavut court of justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or 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. [ 12 ] A “ judge ” under

section 493 means: “ in the provinces of Nova Scotia... a judge of the Superior Court of criminal jurisdiction of the province ” . [ 13 ] Before December 12, 1988, the predecessor of the present s. 520 was s. 457.5 which read:

(1) Where a justice makes an order under subsection 457(2), (5), (5.1), (5.2) or (5.3) or makes or vacates any order under paragraph 457.8(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order made by the justice. [ 14 ] Notably

section 457 is the predecessor to the present

section 515. [ 15 ] Effectively

section 520 and section 523(2) have not changed materially for many years. I note that in 1973 an earlier version of

section 457.8(2) read:

(2) Notwithstanding subsection (1), the court, judge or justice before whom an accused is being tried may, upon cause being shown at any time during the trial, 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. R.S.C. 1970, c. 2 (2nd Supp.), s. 5. [ 16 ] What then has the jurisprudence revealed about the proper

interpretation of section 523(2)? [ 17 ] Much will turn on the

interpretation of the words “ before which or whom an accused is being tried, at any time, ” . The Jurisprudence [ 18 ] In R v Hardiman , 2002 NSSC 208 , the accused was charged with a

section 469 offence, and the Supreme Court was therefore the trial court. She was free (by Crown consent) on a recognizance while awaiting a preliminary hearing and when she sought a variation thereof, the Crown refused consent. Cacchione J held that he had no jurisdiction to deal with the variation under s 523, absent Crown consent. On appeal, 2003 NSCA 17 , Cromwell JA (as he then was) said, for the court: [11]Section 523 has three important elements for present purposes. First, it provides that a recognizance entered into by an accused such as Ms.

Hardiman remains in force subject to its terms until her trial is completed. Second, it sets out in section 523(2), a mechanism to vacate a release order previously made and to make any other order for the detention or release of the accused. Finally, the

section specifies when and by whom this may be done. For the purposes of the present case, and subject to the power of review by the Court of Appeal under s. 680, the authority is conferred only on a judge of the Supreme Court and only in two situations. The

section confers authority on the court or judge "... before whom an accused is being tried ..." (s. 523(2)(a), emphasis mine) or, on a judge of the Supreme Court without restriction except that the prosecutor must consent to the change: s. 523(2)(c). It follows, therefore, that if, as in Ms. Hardiman's case, the accused is not "being tried" at the time of the application to vary conditions, the application may be made only with the consent of the prosecutor. (There is no dispute that Ms.

Hardiman was not "being tried" at the time of her application to vary the conditions and it is therefore not necessary to address the authorities concerned with defining exactly when an accused is "being tried" for the purposes of s. 523.) …. [13]Cacchione, J. held, in my view rightly, that as Ms. Hardiman was not being tried at the time of her application, the Supreme Court would have jurisdiction under s. 523(2) only if the prosecutor consented to the application.

That consent not having been granted, there was no jurisdiction…. [ 19 ] The Court of Appeal did not find it necessary to deal with the definition of "trial," as it was not disputed that the accused was not "being tried."

[20] Embree Prov Ct J held in R v. Kell, 2004 NSPC 54, that the "meaning of the word 'trial', and when a trial commences, andwhen a defendant is being tried, can be different, depending on the particular provisions of the Criminal Code involved and the purposeof that provision." After reviewing a range of caselaw on the

interpretation of s 523(2) - as well as on the meaning of "trial," asconsidered in R v. Barrow, (SCC), [1987] 2 S.C.R. 694 - he said: 11 With the utmost respect for any contrary views, it's my conclusion that the words "is being tried" in section 523(2)(

a) should notbe given an overly restrictive

interpretation. For example, "is being tried" should be taken as referring to more than just that portion of atrial where evidence is presented or where a Judge engages in some conduct or process which seizes that Judge with jurisdiction.

Suchprocesses may be at the heart of the trial, as those words were used in the quotation above in Barrow, but they should not necessarily beconsidered to be all of the trial. 12 All of the judicial interim release provisions should be read together and their respective purposes and objectives analyzed.Having attempted to do that, it's my conclusion that I do have jurisdiction to deal with this application in the absence of Crownconsent.

To that extent, I agree with, and prefer, the conclusion expressed by Judge MacDonald in [R v Greener, 2003 NSPC 58] .However, with respect, I cannot agree with my colleague, Judge MacDonald, as to the stage of proceedings at which I would acquire thatjurisdiction under section 523(2)(a). [My emphasis] [21] In Greener, MacDonald Prov Ct J held that, for the purposes of s 523, a trial in Provincial Court began "on the arraignment inthe Provincial Court on a

summary conviction charge, or on a charge within the absolute jurisdiction of the Provincial Court, and uponelection when the election is to have a trial in the Provincial Court. A case is not 'being tried' in the Provincial Court, or in any court,before the accused elects where to have the trial, or before there is a committal in cases where there is to be a preliminary inquiry." [My emphasis] [22] Judge Embree suggested a narrower approach: 14 With respect, I can't agree that "is being tried" extends quite as far as Judge MacDonald suggests.

The key point, in myrespectful view, as to when a trial commences and when a defendant "is being tried" for the purposes of interpreting section523(2), is when a plea has been entered. If the matter is an indictable offence and the accused elects to be tried by a Provincial CourtJudge and then enters a plea, that person "is being tried" from then on in the Provincial Court. Similarly, with a

summary convictionoffence, or an offence over which Provincial Court otherwise has absolute jurisdiction, once a not guilty plea, or any plea, has beenentered, the provisions of section 523(2)(

a) apply, if necessary, because then the defendant "is being tried". 15 I consider that the entry of plea is a logical and easily definable position in the process for it to be concluded, for the purposes of523(2), that a defendant or accused "is being tried". Once a plea is entered, the defendant is in jeopardy in relation to the matter. Theentry of a plea gives the Provincial Court the jurisdiction and ability to deal with a series of issues related to the trial and the trial process. [23] Ross PCJ addressed the

interpretation of s 523(2) in R v. Hill, 2005 NSPC 50. He reviewed the Nova Scotia caselaw, includingHardiman and a line of Provincial Court decisions, as well as caselaw from other provinces. He noted that a broader

interpretation of s523(2)(

a) could mean a narrower approach to the availability of Supreme Court review under s 520: … An accused in a superior court on a review hearing has a wider basis in law to seek a change than he would before a provincial courtjudge on a s.523(2) hearing. If the approach in Greener and Kell is followed, and one considers that a trial in provincial court beginswhen plea is entered, this narrows quite markedly the time period wherein an accused may apply to a superior court for a review.

Inother words, while these decisions permit quite generous access to a provincial court judge for a s.523(2) hearing, they necessarilyconstrict access to superior court for a review, since s.520 says that an accused may apply for a review "at any time before the trial of thecharge". While the meaning of "trial" may change somewhat from

section to section, it would be difficult to reconcile such different

meanings within sections so closely related. [24] After an exhaustive reasoning process, Judge Ross reached the following conclusions: 48 As I interpret the scheme set out by Parliament in s.523 these are the situations where a provincial court judge does not requireCrown consent before proceeding to hear an accused's application to change release conditions previously imposed under s.515: (1) where the accused has embarked on an actual trial (the stage where evidence is called); (2) where the judge, acting as a preliminary inquiry justice (with the power to commit on included or cognate offences) has finishedhearing evidence; (3) where a new information has been laid, charging the same or included offences. 49 In the first of these, the rationale may be found in the fact that the judge will often have heard evidence, or even determinedguilt.

The second also appears to be founded on the opportunity the judge has had to hear and evaluate evidence. In the third the needarises from either the diminishment of the objective gravity of the offence, or any new or amended description of the original charge -either of which may change the underpinnings of the original release order. [25] Judge Ross's decision appears to be the last word in this province on the law governing Provincial Court jurisdiction under s523(2). [26] The narrower

interpretation of s 523(2)(

a) appears to be ascendant outside Nova Scotia as well - see e.g. R v. Aucoin 2006ABQB 895 per Wachowich CJQB at para. 34; and in Ontario R v. Durrani 2008 ONCA 856. In Durrani, where the accused wasawaiting trial in the Superior Court, MacPherson JA made the following remarks about his application under s 523: 12 […][I]n R. v. McCreery (1996), (BC SC), 110 C.C.C. (3d) 561 (B.C.

S.C.), Romilly J. … concluded that, forbail purposes, a trial did not commence until the accused was put in charge of the jury. 13 In his valuable text, The Law of Bail in Canada (Toronto: Thomson Canada Ltd., 1999), Gary Trotter (now Justice Trotter)described and considered McCreery and concluded, at 347: The approach in McCreery is sound. It is faithful to the wording of s. 523(2)(

a) and the review provisions as a whole. It is an approachthat is fair to litigants. The normal avenues of pre-trial review (ss. 520, 521 and 680) remain available until the trial actually getsunderway. 14 I agree. In the present case, it is true that a trial judge has been designated and that he has been hearing a variety of pre-trialmotions for several months. However, the applicant has not been arraigned, nor has he entered a plea. Moreover, it appears from therecord that the pre-trial motions may continue for many more months. In these circumstances, I do not think that the applicant, per s.523(2)(

a) of the Code, "is being tried", at least for purposes of the bail provisions of the Code. 15 Accordingly, the applicant's request for bail must be determined under s. 520 of the Code…. [27] Judge Ross in R v. Hill, supra, at para. 47 noted that in 2005:

There is divided opinion within the provincial court in Nova Scotia which this decision will do nothing to resolve. Clearly it would be preferable if accused persons had the same access to the court regardless of where in the province their charges originate. One can only hope that an appellate court will be given the opportunity to impose one

interpretation of the

section or another. [ 28 ] In my opinion, Judge Ross comprehensively examined this issue and came to the correct conclusion in law. His reasoning is sound, and I adopt his conclusion on this issue which is captured at para. 48. The merits of Mr. Mukpo ’ s arguments on review under s. 520 [ 29 ] I agree as well with Judge Ross ’ comments at para. 35 in Hill : There is thus a difference in the scope of a s. 523(2) hearing and a s. 520 hearing.

An accused in a superior court on a review hearing has a wider basis in law to seek a change than he would before a provincial court judge on a s. 523(2) hearing. [ 30 ] That is because a review is in effect a de novo hearing and not an appeal based only on the record of the proceedings before the justice/provincial court judge. In this respect I note that Justice Trotter in his text The Law of Bail in Canada [Toronto: 2010 Thomson Reuters Canada Limited] examined this issue and concluded at p. 8 - 13 under s. 8.3(a)(ii)(

d) that, in relation to the “ preferred approach ” : The nature of the review under sections 520 and 521 should be approached from a functional perspective. This involves identifying the appropriate goals of the review process. It must then be determined whether the statute accommodates the implementation of this approach.

In constructing a functional approach to the bail review process, a number of related factors should be considered, including: 1 - the nature of the decision under review; 2 - the structure and language of the provisions; and 3 - the constitutional framework in which the law operates. [ 31 ] At p. 8 - 15 Justice Trotter concludes: On the basis of these considerations, a broad scope of review, one that is faithful to the constitutional features of the bail decision is desirable. It is also sustainable under sections 520 and 521.

The moving party on a review ought to be able to have a previous order vacated: 1 - on the basis of a material change of circumstances; and/or 2 - by persuading the reviewing judge that a different result ought to have been reached by the justice. Given the preferred standard of review [i.e. “correctness”], considerations relating to the reasonableness of the justice’s conclusions on fact and law become superfluous. That is not to say that no importance ought to be attached to the conclusions reached at first instance.

Findings of fact and determinations of credibility, features of first instance decision making which normally attract some measure of deference on appeal or review, ought to be afforded similar treatment under sections 520 and 521. Of course, it is open to either party to adduce evidence which displaces the wisdom of relying on these types of findings. [ 32 ] In the case at Bar, Mr. Mukpo was released by consent. A transcript of that court appearance was not provided, however I did have the court appearance transcribed for myself, as agreed to by Mr. Mukpo and Crown counsel.

Neither counsel nor the court made any comment on the factual or legal basis for Mr. Mukpo ’ s release. [ 33 ] Thus I have even greater latitude in this hearing in determining whether Mr. Mukpo has shown “ cause ” for me to vacate the previous order, which he consented to on November 14, 2011. [ 34 ] Although the Crown consents to the variation, I will say that I am also satisfied that it is appropriate. Mr. Mukpo testified and indicated that he is a professional filmmaker who regularly has work commitments outside of the province of Nova Scotia and Canada.

He testified that he has specific existing and potential commitments close to fruition, which would require him to travel outside the country in the very near future. [ 35 ] He also provided Exhibit #2, which was a certificate of participation in a parenting course since the release conditions were imposed herein. [ 36 ] I had the opportunity to observe him giving evidence, and he struck me as sincere and truthful. The conditions he wishes deleted are not suggested to, in any way, jeopardize the safety of the public or the complainant herein.

Conclusion [ 37 ] I am satisfied that this is an appropriate case to grant the requested variation to the recognizance issued in Provincial Court on November 14, 2011, and will do so. J .