R. v. Carrier, 2003 MBCA 50

IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : HER MAJESTY THE QUEEN ) R. G. Garson and ) E. E. Magas (Respondent) Applicant ) for the Applicant ) ) J. P. Miller - and - ) for the Respondent ) ) Chambers motion heard and BEKIM ZENELI ) Decision pronounced: ) March 26, 2003 (Accused) (Applicant) Respondent ) ) Written reasons: ) March 28, 2003 HUBAND J.A. 1 The accused is charged with a number of offences, including some of a very serious nature – conspiracy to traffic in cocaine and possession of the proceeds of crime.

The indictment began relatively modestly, but has gradually expanded to now embrace 14 separate counts. 2 The accused was denied bail by Swail P.J., but released on judicial interim release by Keyser J. of the Court of Queen’s Bench. The accused breached the terms of his bail, and as a consequence, he was arrested, further charges were added to the original indictment and he again applied for bail in a hearing before Corrin P.J. His application was denied. A review hearing was then held before Menzies J. of the Court of Queen’s Bench.

The accused was granted judicial interim release on his own recognizance of $10,000, with a cash deposit of $5,000, and two sureties each of $10,000. 3 Because of yet more charges being added to the indictment, by consent, at a hearing before Everett P.J., one of the sureties was increased to $20,000 and judicial interim release was continued, but without prejudice to the Crown seeking to have bail revoked at a further review hearing. 4 An application for that further review of the decision of Menzies J. came before me in my capacity of a superior court judge and after the required passage of 30 days from the decision of Menzies J. 5 While I am a superior court judge, I am also a judge of the Manitoba Court of Appeal, and the application was brought before me by Crown counsel for precisely that reason.

It was submitted that there were circumstances that made it appropriate for a judge of the Court of Appeal to consider the matter. 6 While there is no doubt that Court of Appeal judges have the jurisdiction under the provisions of the Criminal Code to entertain applications for review, the jurisprudence which has developed in this province clearly indicates that a review should be undertaken only where special circumstances call for an application to a judge of this court. See R. v. Carrier (1979), 1979 CanLII 2907 (MB CA) , 2 Man.R. (2d) 168 (C.A.) , R. v.

Petrie (1984), 1984 CanLII 3678 (MB CA) , 30 Man.R. (2d) 145 (C.A.) , R. v. Semenick (1984), 1984 CanLII 3680 (MB CA) , 30 Man.R. (2d) 147 (C.A.) , R. v. Mallett (D.W.) (No. 2) (1992), 1992 CanLII 4021 (MB CA) , 83 Man.R. (2d) 116 (C.A.) , and R. v. Starr , [1999] M.J. No. 144 (QL) (C.A.) . 7 To emphasis the point, I refer specifically to the reasons of Scott C.J.M. in Mallett . After summarizing earlier decisions, the reasons for judgment continued in these terms (at paras. 18-19): It is my further opinion, that the special circumstances should be fairly narrowly construed.

They must refer to situations for example, in Carrier where the accused, to use the vernacular, had been battered about from pillar to post; there had been a substantial period of delay due to the absence of a transcript and the like and it was essential and urgent that the matter be dealt with. Furthermore, the parties consented. Another obvious example and the one Parliament most likely had in mind, is where there is no Queen’s Bench Judge readily available.

It is inappropriate to ask a judge of this court to conduct a review under either s. 520 or 521 unless there exist unique and special circumstances of the kind just referred to. …. 8 Crown counsel submit that special circumstances exist because of an error of law on the part of Menzies J. in failing to provide reasons for his decision in spite of a statutory requirement to do so. It is argued that this distinguishes the present case from the usual situation where changed circumstances are alleged. It is further suggested that another judge of the Court of Queen’s Bench might be reluctant to find judicial error.

Further, if judicial error were to be found, allowing a fresh discretion to be exercised, a judge of the Court of Queen’s Bench might be reluctant to come to a different conclusion than his or her colleague on the Court of Queen’s Bench. 9 In my opinion, the fact that the intended review is based initially on an alleged error of law does not, by itself, qualify as a special circumstance justifying a judge of this court to entertain a review.

In my opinion, judges of the Court of Queen’s Bench will fulfill their responsibilities by finding judicial error if error indeed exists and by exercising an independent discretion if the circumstances call for an independent discretion. 10 I therefore decline the invitation to entertain a review.

In doing so, it is my intent that the Crown would not be precluded from bringing an application before a judge of the Court of Queen’s Bench without delay, no hearing having been undertaken by me. 11 The motion of the Crown is dismissed, not on the basis of a review which failed, but on the basis that the application should be made to a judge of the Court of Queen’s Bench. _______________________________ J.A.