R v Sharphead, 2024 ABCJ 4

In the Alberta Court of Justice Citation: R v Sharphead, 2024 ABCJ 4 Date: 20240109 Docket: 230932402P1; 231077983P1; 230700965P1; 230034217P1; 221241466P1; 220389985P1 Registry: Edmonton Between: His Majesty the King Crown - and - Brian Tyler Sharphead Accused Jurisdictional Decision on Bail of the Honourable Justice D. M. Groves I. Introduction [ 1 ] Mr. Sharphead (the Accused) appeared before me on December 12, 2023 for a bail hearing on six Informations; two of the Informations had been waived in from Stony Plain. [ 2 ] Based on allegations that the Accused had committed a further indictable offence while on bail, the Crown relied on s 524(2) (

b) Criminal Code ( CC ) to seek bail revocation on all matters for which the Accused had release. [ 3 ] Defense counsel conceded the bail revocation. Bail was revoked, pursuant to s 524(3) CC . [ 4 ] After the bail hearing commenced, I was advised that the accused was in the middle of a trial for the two Informations that had been waived in from Stony Plain. [ 5 ] Based on my initial reading of s 523(2)((

a) CC , I voiced concern over whether I had jurisdiction to deal with bail on those

Informations. Both counsel were of the opinion that I had jurisdiction. The matter was adjourned for counsel to provide written submissions. II. Issues [ 6 ] Does s 523(2)(

a) CC bar any justice except the trial justice from presiding over a show cause hearing due to loss of jurisdiction? III. Conclusion [ 7 ] While the trial justice should be afforded tremendous autonomy and independence in conducting trials and will typically deal with issues of bail on their trial matters, the seized justice does not have the exclusive authority to deal with bail. IV. Legislation and Analysis [ 8 ]

Section 524 CC reads: 524

(1) When an accused is taken before a justice in any of the circumstances described in subsection (2), the justice shall (

a) if the accused was released from custody under an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court so that the judge may hear the matter; or (

b) in any other case, hear the matter .

(2) The circumstances referred to in subsection (1) are the following: (

a) the accused has been arrested for the contravention of or having been about to contravene, a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section; or (

b) the accused has been arrested for having committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section.

(3) The judge or justice who hears the matter shall cancel a summons, appearance notice, undertaking or release order in respect of the accused if the judge or justice finds that (

a) the accused has contravened or had been about to contravene the summons, appearance notice, undertaking or release order; or (

b) there are reasonable grounds to believe that the accused has committed an indictable offence while being subject to the summons, appearance notice, undertaking or release order.

(4) If the judge or justice cancels the summons, appearance notice, undertaking or release order, the judge or justice shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why their detention in custody is not justified under subsection 515(10). [ 9 ] Section 523(2) and (3) reads:

(2) Despite subsections (1) to (1.2), (

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

(3) The provisions of sections 517 , 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in

section 469 . [ 10 ] When the accused commits a new offence while on bail for a matter mid-trial, there are two mechanisms by which the Crown can seek to cancel the accused’s prior release, for the trial matters: (

a) by asking the trial justice to vacate the previous release and make a new detention or release order, pursuant to s 523(2)(

a) CC , or (

b) by asking any justice to cancel the accused’s previous release under s 524(2)

(3) CC and detain the accused unless they can show cause why their detention is not justified under s 515(10). [ 11 ] The s 523(2)(

a) and s 524 regimes operate concurrently. The Crown can choose to use either mechanism to cancel the release on the trial matter. Therefore, it is not necessary for the matter to be heard by the trial justice. [ 12 ] In R v Morin , 2021 CarswellAlta 1657 [ Morin ] , Justice Godfrey was faced with a similar issue. A matter came before her for bail revocation and a bail hearing. The accused had pled guilty in King’s Bench to manslaughter and was awaiting sentencing. The

accused had since accumulated 16 new charges. Defence counsel argued that the King’s Bench Justice was seized with the matter, andthe issue of revocation was within exclusive jurisdiction of the King’s Bench Justice pursuant to s 523 CC. Defense counsel furtherargued that s 524 CC, under which the Crown had brought the revocation application, does not deal with situations where the trial justiceis seized. The Crown argued that s 524(1)(

b) CC required Justice Godfrey to deal with the issue of revocation, even though King’sBench was seized with the sentencing. [13] Justice Godfrey examined several cases including R v Rhodes, 2013 MBQB 248 [Rhodes]. [14] In Rhodes, the Court of Appeal overturned a conviction and ordered a new trial in the Court of King’s Bench. The Court ofAppeal released the accused pending his re-trial. Partway through his re-trial in King’s Bench (while awaiting the verdict), the accusedbreached a condition of his release and was brought before the Provincial Court for revocation.

The Provincial Court Judge declined toconduct a revocation hearing, as the judge felt that bail should be dealt with by the seized trial judge. The Crown filed a motionchallenging the decision of the Provincial Court not to conduct a revocation hearing. The motions judge held that the Provincial CourtJudge illegally refused to conduct a revocation hearing (at para 34). The Provincial Court Judge should have heard both the Crown’sapplication for revocation and the bail hearing for the new offence (at paras 35-37).

The court noted that a revocation hearing proceeds intwo steps: cancellation of the original release and then determination of whether an accused shows cause in the circumstances that he orshe should be released on a new form of release (at para 44). Both steps should have been undertaken by the Provincial Court Justice. [15] Justice Godfrey also considered R v Mayen, 2014 MBQB 29 [Mayen].

In that case, the court set out the arguments for why itis preferable for issues of bail on a trial matter to be dealt with by the trial judge under s 523(2) CC: [30] The reality of criminal proceedings is that bail may need to be addressed at any stage, including trial. At that point, it makessense both logically and practically that the trial judge deal with it. This appears to be the reason for s. 523(2), which allows a judge orjustice before whom the accused is "being tried" and a justice at the conclusion of the preliminary inquiry to vacate an existing order ofrelease or detention. Put in the context of

Part XVI, this permits a trial judge to vacate bail if an accused has breached the terms of hisrelease, which otherwise would be the subject of an application for revocation to a justice under s. 524(3). It also continues thejurisdiction of a judge to review an order of release or detention before the trial pursuant to ss. 520 or 521.

Or, where the accused isbefore the Provincial Court, either at preliminary inquiry or at trial, the presiding justice has jurisdiction to vacate an existing order ifcause is shown, something that before the trial would be the subject of a review by a judge under ss. 520 or 521. [31] Thus, s. 523(2) avoids a multiplicity of proceedings, and allows the court before which the accused is present, and will likelyhave the most recent information about the accused and the proceedings, to determine his bail.

It also minimizes the risk that a trialmight be negatively affected by another court’s ruling. [16] However, as Justice Godfrey pointed out at para 40 of her decision in Morin: [40] However, the court in Mayen concluded that the jurisdiction of the trial judge to deal with bail pursuant to 523, does not displacethe ability of the Provincial Court judge to hear a revocation pursuant to

section 524. Justice Suche was clear that the fact that the trialjudge had gained jurisdiction under 523, does not displace the concurrent jurisdiction of a justice under 515. [17] Justice Godfrey concluded that the Rhodes decision was well-reasoned and had persuasive value, and accordingly shefollowed it. [18] In R v Passera, 2017 ONCA 308 [Passera] the appellant was convicted by a jury of importing cocaine. She was in custodypursuant to s 515(6)(

d) CC. Sentencing was adjourned, and the appellant filed a Notice of Constitutional Question. Prior to the datefixed for the constitutional challenge hearing, the appellant invoked s 523(2)(

a) CC and filed an application for judicial interim releaseasking the trial judge to vacate the detention order. The appellant’s application was denied. The appellant then brought an application“in the nature of a habeas corpus with certiorari in aid” before a judge of the Superior Court.

The appellant was asking the SuperiorCourt to declare that they had inherent jurisdiction to grant bail and hear a habeas corpus application; that the absence of a reviewmechanism for the appellant’s denial of bail was a violation of the appellant’s rights under ss 7 and 9 of the Charter; and that ultimatelythe appellant be released. [19] The Court in Passera denied the appellant’s applications, stating at paras 12-14: [12] To begin, we do not consider the legislative lacuna relied upon by the appellant as an unintentional gap.

We see it as a deliberatelegislative choice to confer upon the trial judge the authority to alter an accused's judicial interim release status as trial proceedingsunfold. In light of the plethora of other review mechanisms – as for example ss. 520, 521, 525 and 680 – it simply cannot be said thatParliament's choice was other than deliberate: R. v. Bukmeier (1996), (BC CA), 107 C.C.C. (3d) 272 (BCCA), atparas. 15, 20. See also, R. v.

Durrani, 2008 ONCA 856, at paras. 13-14. [13] The absence of a review mechanism and the unavailability of recourse to inherent jurisdiction to fill the gap is also consistentwith general principle. The decisions of trial judges on procedural, evidentiary and substantive issues within their purview, in short, themanagement of trial proceedings, is left to the trial judge.

In limine review proceedings, with their resultant delay; fragmentation of thecriminal trial process; determination of issues on an incomplete and inadequate evidentiary record, not to mention their consumption oftime and effort and unnecessary depletion of scarce judicial resources, are the antithesis of our system of criminal justice: R. v. Johnson(1991), (ON CA), 3 O.R. (3d) 49 (C.A), at para. 8. [14] Third, a similar argument invoking inherent jurisdiction as the source of authority in the absence of a specific statutory provisionauthorizing what is sought was rejected by this court in R. v.

Kennedy, (ON CA), [1972] 2 O.R. 754 (C.A.), at pp. 755-756 and in R. v. Morgentaler, Smoling and Scott (1984), (ON CA), 16 C.C.C. (3d) 1 (Ont. C.A.), at pp. 5-6. [20] Passera was addressing whether there was a review mechanism available after a hearing conducted pursuant to s 523(2)(

a) CC denied the accused’s release. Passera was not deciding the issue of whether s 523(2)(

a) CC granted the trial judge exclusive jurisdiction to address bail. [ 21 ] A similar appeal was heard in R v Ali , 2020 ONCA 566 [ Ali ]. The applicant was charged with two counts of second-degree murder. He was detained in custody after a bail hearing conducted under s 522 CC . The trial commenced but was interrupted due to the COVID-19 pandemic. An application was brought before the trial judge pursuant to s 523(2)(

a) CC . The trial judge declined to vacate the detention order. The accused applied under s 680(1) CC for a direction that a panel of the Court review his detention order. The accused’s application was dismissed. Like Passera , the issue was whether the Court had jurisdiction to review a detention order made under s 523(2)(

a) CC – they concluded that the Court had no jurisdiction to review. [ 22 ] Respectfully, I find that some cases have misinterpreted the Passera decision. Once such case is R v Cook , 2020 ONSC 2055 [ Cook ]. [ 23 ] In Cook , the accused was mid-trial before an Ontario Superior Court Justice, when all court matters were adjourned due to the COVID-19 pandemic. Cook had never spoken to bail in the first instance. [ 24 ] At para 13 of Cook the Court stated: In the present case, the trial has already commenced. Section 523(2) of the Code therefore becomes engaged.

The effect of the position taken by the Crown would be to deny the trial judge the authority to consider and determine bail for the accused being tried before him or her. I cannot reconcile that position with the legislative choice articulated in Passera .

The reference to “being tried” surely renders the trial judge the reviewing authority after trial has commenced. [ 25 ] The Court in Cook referred the matter back to the Superior Court trial judge for a judicial interim release hearing. [ 26 ] With the greatest of respect, I do not believe that Passera stands for the proposition that once a trial commences only the trial judge has jurisdiction to address bail; instead, it suggests that if a trial judge addresses bail pursuant to s 523(2)(

a) CC , that decision cannot be reviewed. [ 27 ] The reasoning in Cook is also contrary to the decisions in Mayen (see paras 19-20 ) and R v Watts , 2014 ONSC 6246 [ Watts ] at paras 12-13 . Both Mayen and Watts concluded that pursuant to s 515(1) CC , the Provincial Court or Court of Justice (s 92 Courts) was the bail court of first instance, regardless of whether the accused had been committed to stand trial in the Superior Court. [ 28 ] In this case, the Crown proceeded pursuant to s 524 CC . Given the mandatory wording of s 524(1)(b), “the justice shall, ..., hear the matter”; there is no discretion. [ 29 ] Since the Crown has elected to proceed under s 524 CC instead of s 523(2)(

a) CC , I do have jurisdiction to conduct the bail hearing relating to the trial matter. This may not be ideal, for the reasons identified in Mayen , but from a jurisdictional perspective it is permissible. Heard on the 12 th and 21 st day of December, 2023. Dated at Edmonton, Alberta this 9 th day of January, 2024. D.M. Groves A Justice of the Alberta Court of Justice Appearances: C. Davis

for the Crown W. Willier for the Accused