R. v. Dechamp., 2017 NSSC 207

SUPREME COURT OF Nova Scotia Citation: R. v. Dechamp. , 2017 NSSC 207 Date: 20170725 Docket: CRH 453231 Registry: Halifax Between: Her Majesty the Queen v. Tyrell Peter Dechamp Publication of this decision was delayed due to a pending investigation iDENTIFYING INFORMATION REDACTED IN ORIGINAL DECISION HAS BEEN REINSTATED Judge: The Honourable Justice Patrick J.

Duncan Heard: (in camera) July 8, 2016, and March 13, 2017, in Halifax, Nova Scotia Decision: June 29 and July 25, 2017, in Halifax, Nova Scotia Final Written Submissions: March 24, 2017 Counsel: Mark Heerema and Paul Carver, QC, for Her Majesty the Queen Sarah Drodge, for Correctional Service Canada Introduction [ 1 ] Tyrell Peter Dechamp is an inmate at the Atlantic Institution, a federal prison located in Renous, New Brunswick. He is serving a sentence pursuant to a Warrant of Committal issued by Chief Justice Kennedy of this Court.

That Warrant expires in December 2017. [ 2 ] During the period of his incarceration, Tyrell Peter Dechamp was released on parole which was later revoked.

Police investigators have reason to believe that in April 2016, during that period of his release from custody, Tyrell Peter Dechamp murdered Naricho Clayton, contrary to s. 235 of the Criminal Code and attempted the murder of Ricardo Whynder, contrary to s. 239 of the Criminal Code . [ 3 ] The information tendered in support of this application satisfies me that Tyrell Peter Dechamp is arrestable for these offences, without warrant anywhere in Canada, pursuant to s. 495(1) (

a) of the Criminal Code . [ 4 ] The police investigators seek to arrest Tyrell Peter Dechamp and transport him from the Atlantic Institution to a police station in Miramichi, New Brunswick, for investigative detention. Correctional Service Canada (“CSC”) has taken the position that it is under a legal obligation to imprison Tyrell Peter Dechamp until the end of his sentence and that a court order is required to authorize the Institution to release him into police custody while the warrant of committal is still in effect. This application seeks such an order.

Counsel for CSC takes no position on the Crown’s application. History of the Application [ 5 ] This application was filed July 5, 2016, and initially presented on an ex parte basis to Justice Denise Boudreau for review in

her Chambers. She refused the requested order but offered that she would execute an Order to Transport Tyrell Peter Dechamp to court if a hearing was to be scheduled. [ 6 ] At the request of the Crown an in camera hearing of the application was held before me on July 8, 2016. There was a robust discussion with counsel about the authority of the court to grant an order in the manner it was presented.

The Crown requested that the application be adjourned without day in order for it to obtain further information in support of its position. [ 7 ] The application was next in court, sitting in camera, for consideration on March 13, 2017.

Counsel on behalf of CSC presented a written brief and attended to make submissions on behalf of CSC. [ 8 ] At the conclusion of that proceeding I indicated to the Crown that I was not satisfied the court had jurisdiction to grant the order in the manner presented, but offered that if it chose to present further evidence and/or a revised draft order that addressed my concerns I would consider that further information. I permitted this due to the novelty of the issue and the dearth of authority for the Order requested.

The Crown did submit a further affidavit and revised Order which I took under consideration (though the affidavit was not sworn, I accept that it would be if required). In a letter to counsel on June 29 th I advised that I was not prepared to grant the Order, concluding that there is no authority to support such an Order in the manner presented. The Crown accepted my offer to put my reasons for this decision on record. That is what brings us here today. Order Sought [ 9 ] The recitals in the draft Order include that Tyrell Peter Dechamp is arrestable for the offences stipulated above and continues: 1.

That on a date to be specified in the final order, Constable Joseph Allison and/or a peace officer(

s) designated by him, will: (

a) Contact the office of the on-duty supervisor at the Atlantic Institution (13175 8 Rte, Renous, NB, E9B 1T9) to confirm the presence of Tyrell Peter Dechamp prior to attending the Atlantic Institution (13175 8 Rte, Renous, NB, E9B 1T9); (

b) Be permitted to attend the Atlantic Institution to arrest and transport Tyrell Peter Dechamp to the Miramichi police Detachment (673 King George Highway, Miramichi, NB, E1V 1N6) (which is approximately 30 minutes away by vehicle) for purposes of conducting a post-arrest interview of T.P.D.; 2. Ensure that: (

a) Upon arrest, Tyrell Peter Dechamp is provided with a copy of this order and shall be given an opportunity to read this order; (

b) Upon arrest, Tyrell Peter Dechamp shall be cautioned and advised of his constitutional rights and afforded a reasonable opportunity to exercise those rights; (

c) Upon arrest, Tyrell Peter Dechamp shall be informed that he is also being investigated for the murder of E.F. so as to inform him of his jeopardy in relation to that matter ; (

d) Tyrell Peter Dechamp is either: brought before a Justice of the Miramichi Law Courts within the time prescribed in s. 503(1) (

a) or (

b) of the Criminal Code ; pursuant to s. 503(3) of the Criminal Code ; or , within the time prescribed in s. 503(1) of the Criminal Code , is returned to the custody of the Atlantic Institution (13175 8 Rte, Renous, NB, E9B 1T9); and, (

e) At all times maintain custody of Tyrell Peter Dechamp until he is either brought before a Justice pursuant to s. 503(3) of the Criminal Code or returned to the custody of the Atlantic Institution (13175 8 Rte, Renous, NB, E9B 1T9). (emphasis added) Issue [ 10 ] There is no criminal charge outstanding against Tyrell Peter Dechamp. The authority of this court over Tyrell Peter Dechamp ended when sentence was passed and the warrant of committal issued.

The proposed order, among other things, authorizes the police to arrest Tyrell Peter Dechamp, remove him from the prison, transport him to the police station for interrogation and return him to the institution, without charges and without an appearance before a Justice. The question is where does this court find its jurisdiction to issue an Order that contains such a provision. Position of the Applicant [ 11 ] The Crown acknowledges that there is no authority in the Criminal Code for the issuance of such an order.

It submits that the Supreme Court of Nova Scotia is vested with inherent jurisdiction to grant such an order, to avoid an injustice and to assist in administering justice according to law in a regular, orderly and effective manner.

It submits that it will result in an injustice if the police are required to wait until Tyrell Peter Dechamp is released from custody in order to arrest him. [ 12 ] Specifically, the Crown asserts that society expects that the police will have the ability to investigate and solve crimes, especially very serious ones such as alleged here, which investigation necessarily requires the arrest and post-arrest interview of suspects. [ 13 ] In support of its position, the Crown points to similar orders issued in the Province of Alberta. There is no evidence that such orders have been exercised in any other jurisdiction.

[ 14 ] During submissions, I posed the question as to why the arrest and interview could not take place in the Atlantic Institution.

Constable Joseph Allison’s evidence would be that the police need to conduct post-arrest interviews in an atmosphere that investigators can control and which would address the following concerns: • the police station provides a facility where the police can control the movements of the suspect; • the police are able to provide better access to meals, legal counsel and have access to investigative aids; • the integrity of the investigation is paramount and privacy issues are important.

Conducting an interview with an inmate in a location where other prisoners could find out that such an interview had taken place would present obstacles to obtaining confessions or information from the interviewee, and ultimately may lead to danger for the interviewee; • custodial facilities are not properly set up to record and document such interviews where police facilities are; • the police may want to introduce members of the public as “live aids” during the course of an interview. This would be problematic in a prison facility.

Analysis [ 15 ] This Court has no jurisdiction over the person of Tyrell Peter Dechamp except as grounded in the law. [ 16 ] The court is functus in relation to the matter that he is currently incarcerated for. His future release from custody will be effected in accordance with the administration of the sentence by CSC. [ 17 ] Tyrell Peter Dechamp is not charged with an offence and the Crown is not applying to have him transported to appear in court for any purpose. The Order being sought does not guarantee that Tyrell Peter Dechamp will in fact be charged or brought before a Justice.

The intent of the Order and the reasons offered by the police in support of the Order is clear. They want to interview him over a period of up to 24 hours and decide at some point before the expiry of that time period whether to charge him and bring him before a Justice. There is no statutory provision giving the court the power to make such an Order. [ 18 ] Sections 527(1) and (7) of the Criminal Code set out a statutory authority for a court to transport a prisoner.

Section 527(1) authorizes the court to issue an order to transport a prisoner to court where the interests of justice are shown to require the prisoner’s attendance. The order can be made without the prisoner’s consent. It does not apply in this case because the police and Crown are not asking to have Tyrell Peter Dechamp transported to court. [ 19 ] Section 527(7) authorizes the court to transfer a prisoner to the custody of a peace officer, with the consent of the prisoner, for the purpose of assisting the peace officer acting in the execution of his or her duties. This

section does provide authorization to grant the order requested on this Application but only if Tyrell Peter Dechamp consents. The Crown and police are not prepared to seek Tyrell Peter Dechamp’s consent, as it would alert him to the fact that he is under investigation, thus ruining any element of surprise that might exist if he is taken into custody without warning. [ 20 ] There is no other statutory basis for the relief sought.

The Crown feels that this is a legislative gap that the court should fill relying upon the doctrine of inherent jurisdiction. [ 21 ] Before I turn to that argument, it is worth noting that this “gap” was identified as long ago as 2006 when the Canadian Association of Police Chiefs passed a resolution at their Annual Conference seeking that the federal government amend the Criminal Code to permit peace officers to enter into prisons for the purpose of arresting or apprehending a prisoner. The recitals to the resolution and the supporting Commentary clearly state that such a legislative amendment is necessary.

The Commentary notes, that in the two years previous to the Conference the Winnipeg Police unsuccessfully attempted to remove four inmates from CSC facilities under s. 527 and s. 529. These orders were refused. The lawful authority of the judge to issue an order under s. 529 is not recognized by CSC lawyers because a correctional facility is not a dwelling house; and an order issued pursuant to s. 527 is only enforceable when the inmate consents to their removal from the prison which in those cases they did not. Two of the four inmates were wanted by police for first- degree murder.

For reasons that are not before me Parliament did not act on this resolution. [ 22 ] I turn now to the submission that the doctrine of inherent jurisdiction provides the court with the necessary authority to issue the order as requested. [ 23 ] Farrar J.A. writing in Lord v. Smith , 2013 NSCA 34 , reviewed various authorities that speak to the circumstances in which a superior court may find its jurisdiction in the application of the doctrine of inherent jurisdiction. He stated: 24 Chief Justice MacDonald in Central Halifax Community Association v.

Halifax (Regional Municipality) , 2007 NSCA 39 provided the following definition of inherent jurisdiction: 34 Every superior court in this country has a residual discretion to control its process in order to prevent abuse. Procedural rules, however well intentioned, cannot be seen to stand in the way of basic fairness. This overriding judicial discretion is commonly referred to as the court's inherent jurisdiction.

It is a jurisdiction sourced independently from any rule of court or statute. ... 25 In his seminal article, IH Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23 Jacob defined the inherent jurisdiction of the court as: ... the reserve or fund of powers, a residual source of powers , which the court may draw upon as necessary whenever it is just or equitable to do so , and in particular to ensure the observance of due process of law, to prevent improper vexation or oppression, to do

justice between the parties and to secure a fair trial between them. (Emphasis mine) 26 In Goodwin v. Rodgerson, 2002 NSCA 137, this Court is unequivocal: 17 The inherent jurisdiction of the court has been described as a vague concept and one difficult to pin down. It is a doctrine which hasreceived little by way of analysis, but there is no question it is a power which a superior trial court enjoys to be used where it is just andequitable to do so. ... (Emphasis mine) 27 Inherent jurisdiction is a highly flexible tool.

As Master Jacob said at p. 23: ... [I]t "may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiarconcept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine itsquality and to establish its limits. (Emphasis mine) 28 The scope of inherent jurisdiction was discussed in Halifax (Regional Municipality) v.

Ofume, 2003 NSCA 110, where Saunders,J.A. delineated the scope of inherent jurisdiction broadly to encompass judicial actions that further the goals of "effectiveness","efficiency" and "fairness": [40] ... In the instant case the discretion exercised by ... [the trial judge] derives from the Court's inherent jurisdiction to control its ownproceedings. I see this control as fundamental to a court that derives its power and existence not from statute but from the Constitution.The operation of the court is a necessary function of our society.

The inherent jurisdiction which helps to maintain the efficiency andfairness of such a court is something far greater than the jurisdiction to correct substantive problems, as was considered in Baxter, (SCC), [1976] 2 S.C.R. 475. The inherent jurisdiction exercised by the Chambers judge here is the kind of jurisdictionspoken of by Lord Morris in Connelly, supra, quoted in Montreal Trust Co., (MB CA), [1971] M.J.

No. 38, supra,which gives rise to the "powers which are necessary to enable [a court] to act effectively." (Emphasis mine) 29 Despite its large scope and flexibility, inherent jurisdiction is not available for use in every situation. As Chief Justice MacDonaldin Central Halifax, supra, observed: ... [Inherent jurisdiction] remains a safety net that can prevent abuse in those truly exceptional cases.(para.44) It must be exercised judicially and with caution. It is typically limited to procedural matters.

It cannot effect changes in thesubstantive law, and it cannot be exercised so as to contravene a law. 30 William Charles in his

article "Inherent Jurisdiction and its Application by Nova Scotia Courts: Metaphysical, Historical orPragmatic?" (2010), 33 Dalhousie L.J. 63 enumerated this Court's observations on the topic of inherent jurisdiction, summarizing threeof them as follows: ... [Inherent jurisdiction] is primarily a procedural concept which the courts must be cautious in exercising and [which] should not beused to make changes in substantive law. Action taken pursuant to inherent jurisdiction requires an exercise of discretion. This discretion must always be exercised judicially.

A judge does not have an unfettered right to do what is thought to be fair as between the parties. A court's resort to its inherentjurisdiction "must be employed within a framework of principles relevant to the matters in issue." [Footnotes Omitted] (p. 13) [24] In my view, inherent jurisdiction has no application to the circumstances in this case. The remedy sought in this application hasnothing to do with the control of the court’s process. The authority that the Crown seeks for the police is not related to a procedural issuearising between parties in the context of a case that is pending before the court.

In fact, to invoke it in these circumstances would rundirectly contrary to the admonition of Chief Justice MacDonald in Central Halifax that it is not to be used to make changes in substantivelaw. That is what the Crown seeks – that I supplement the existing law with respect to the transfer of prisoners, creating an exception thatremoves the requirement of the prisoner’s consent to removal from the prison, a protection that is provided for in s. 527(7).

With respect,that is a matter for Parliament to address, not the court. [25] Before concluding I will review the cases where such Orders were granted and explain why I have not found them persuasive. [26] The first of these, chronologically, was R v. Briscoe, Police File 2005-6319, an order issued by Justice T.D. Clackson of theAlberta Queen’s Bench, in Chambers. The only material available to me is the Order which identifies that Mr. Briscoe was detained on aForm 19 Warrant Remanding a Prisoner awaiting trial on charges of first-degree murder, aggravated sexual assault and kidnapping.

Therecitals noted that he was to be arrested for the offense of first-degree murder, and that Correctional Services Alberta required an order torelease Mr. Briscoe into the custody of peace officers. The application proceeded ex parte and the ultimate order authorized the police totake Mr. Briscoe into custody, conduct an interview, and then either return him to the correctional facility or present him to a justiceunder s. 503 of the Criminal Code.

There are no reasons for the decision and nothing on the face of the Order that would indicate thatthe issuing justice considered the jurisdictional issue. [27] The second case was an Order issued on June 12, 2009, by Justice Earl Wilson of the Alberta Queen’s Bench. It is cited as R. v.Roberto, CPS file number 09000820. Again, I have only the Order, which indicates the application was brought on an ex parte basis bythe Crown. Mr. Roberto was detained awaiting criminal charges. In this case, there was a warrant of arrest issued by a Justice of thePeace for Mr.

Roberto’s arrest in relation to charges of first-degree murder. Where this case differs from Briscoe, and the case at bar, isthat a charge had been laid, a warrant to arrest was issued, and the Order required that the arresting officers take Mr. Roberto beforeJustice of the Peace in accordance with the provisions of s. 503, after which he was to be returned to the correctional facility. That is, thepolice were required to take the prisoner before a Justice of the Peace. That is not what I am being asked to do in this matter. [28] The third and fourth cases are also out of the Alberta Queen’s Bench.

Both have had the name of the accused and the court filenumbers redacted. I have an order issued under the hand of Justice T.D. Clackson on November 29, 2012, with a supporting affidavit;and an order issued March 13, 2014, by Justice D.J. Manderscheid, which is also accompanied by a supporting affidavit. Again, there areno reasons that speak to the jurisdiction of the court to issue such orders.

[ 29 ] In the first of these, the Order acknowledges that the RCMP intended to conduct an interview after removing the prisoner from custody. However, the Order also required that the prisoner be brought before a Justice in compliance with s. 503 of the Criminal Code . [ 30 ] The last of these cases is a bit convoluted in that the Order authorized the police to take the prisoner into custody at the courthouse, after the prisoner made an appearance on what appears to be unrelated matters (it is difficult to tell because of the redaction).

It does contemplate a post-arrest interview but, again, concludes by requiring that the prisoner be taken before a Justice in compliance with s. 503 of the Criminal Code and then returned to the correctional facility, unless he was required to attend in Provincial Court to answer to the charge that was the subject of the interview. [ 31 ] In

summary, only the Briscoe decision is consistent with the position being advocated by the Crown on this application. It is noteworthy that Justice Clackson, when presented with the same issue three years later, required the prisoner to be taken before the Justice in accordance with s. 503 . I find that these cases do not offer precedents that establish the jurisdiction of a court to issue the Order as presented to me. [ 32 ] The application is denied. Duncan, J.