R. v. Ibrahim, 2015 MBCA 62

Citation: R. v. Ibrahim, 2015 MBCA 62 Date: 20150626 Docket: AR14-30-08197 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) J. A. Hyman and HER MAJESTY THE QUEEN ) P. L. Piper ) for the Appellant ) Appellant ) S. A. Inness and ) J. L.

Ostapiw - and - ) for the Respondent ) MULATA IBRAHIM ) Appeal heard: ) March 23, 2015 ) (Accused) Respondent ) Judgment delivered: ) June 26, 2015 Corrected Judgment: A corrigendum was issued on March 22, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. CAMERON J.A. Introduction and Issues [ 1 ] Parliament has decided that misconduct while on judicial interim release has sentencing consequences for an accused in terms of calculating credit for pre-sentence custody (PSC).

Section 719(3.1) of the Criminal Code (the Code ) provides that an accused can only be credited for PSC at a rate of 1:1 when he or she has been detained pursuant to s. 524(8) of the Code . [ 2 ] In this case, despite the accused consenting to the revocation of his judicial interim release pursuant to s. 524(8) , at his sentencing he was credited for PSC at a rate of 1.5:1. The Crown says that such credit was an error in principle.

It applies for leave to appeal and, if granted, appeals the sentence imposed. [ 3 ] It should be stated at the outset that this case does not deal with the constitutional validity of s. 719(3.1) in any aspect. [ 4 ] This appeal was heard at the same time as R. v. Cook , 2015 MBCA 63 , an appeal by an accused in similar circumstances whose request for PSC credit at a rate of 1.5:1 was denied. [ 5 ] The anomaly between the two cases is based on differing judicial

interpretations of s. 524(8). The main issue revolves around the timing of an order of detention made pursuant to that section.

Specifically, should an order of detention be made upon cancellation of a prior form of judicial interim release, or can it only be made after an accused has applied for, but has been denied, judicial interim release? [ 6 ] Finally, the wording of ss. 719(3) and 719(3.1) of the Code must be examined to determine the nature of an order required for the application of the legislation. [ 7 ] For the reasons that follow, I conclude that cancellation of a prior order of judicial interim release necessitates, by operation of law, an order of detention.

Following an order of detention, an accused may choose to show cause why his or her release is justified on a reverse onus basis. [ 8 ] I also find that the language of s. 719(3.1) requires an order of detention in order for it to become applicable. In my view, the current practice of referring to the revocation process as resulting in a revocation order which has historically included an order of detention, is confusing and does not properly reflect the language of the Code . The practice should end.

Facts [ 9 ] The accused was charged with possession of cocaine for the purpose of trafficking on February 19, 2012 (the original charge) and released on a recognizance. After this initial release, he was charged on a number of occasions with both substantive offences and breaches of recognizance. He was subsequently released on various other recognizances. [1] Finally, on February 19, 2014 he was charged with a number of substantive offences as well as several counts of breach of recognizance.

Pursuant to an administrative practice that has developed in the Provincial Court of Manitoba (the provincial court), the accused consented to revocation of all of his prior forms of release regarding all of the outstanding charges and subsequently did not apply for judicial interim release. [ 10 ] On May 20, 2014, the accused entered guilty pleas to a number of charges (including some charges of breaching his recognizance). He received a global sentence of 45 months’ incarceration, 27 months of which was attributable to the original charge. The sentencing judge allocated all of the PSC to the 27-month sentence.

Applying a 1.5:1 ratio, he credited the accused with six months’ pre-trial detention thereby leaving 21 months to be served on that count. It is from that sentence that the Crown appeals. Relevant Statutory Provisions [ 11 ] The heart of this appeal involves the statutory

interpretation of s. 524(8). While s. 524(8) has been in existence for many years, its meaning has been subjected to greater scrutiny as a result of the amendments passed in the Truth in Sentencing Act , S.C. 2009, c. 29 (the Act ). [ 12 ] In the Act , Parliament passed amendments directing how the courts are to allocate credit for PSC in ss. 719(3) and 719(3.1) . The intent of the amendments was to limit judicial discretion to award credit for time spent in PSC ( R. v. Stonefish (S.T.) , 2012 MBCA 116 at para. 16 , 288 Man.R. (2d) 103 ).

The provisions read as follows: Determination of sentence 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

Exception 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8) . [emphasis added] [ 13 ] Sections 524(1) and 524(2) of the Code allow for the arrest of an accused on interim release where there are reasonable grounds to believe that he or she either has or had been about to contravene the terms of the release or has committed an indictable offence while on release. [ 14 ] Section 524(3) (

b) of the Code provides that a person arrested pursuant to either ss. 524(1) or 524(2) be taken before a justice who must hear the parties. [2] [ 15 ] Section 524(8) provides for the cancellation of release for persons taken before a justice. [3] It states: Powers of justice after hearing 524(8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken before the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). [4] [emphasis added]

[16] As was noted in R. v. Rhodes (K.H.C.), 2013 MBQB 248 at para. 1, 297 Man.R. (2d) 114, in Manitoba the process of dealingwith an accused pursuant to s. 524 of the Code is commonly referred to as revocation. [17] The Honourable Mr. Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010) (loose-leafupdated 2014, release 3), defines revocation as “the termination of an accused’s (or an appellant’

s) liberty based on alleged misconduct while onrelease” (at ch. 11.1). [18] The confusion in this case arises in part because there are differing views on what orders, by operation of law, result from therevocation process. While the use of the word “revocation” can describe a process, as will be seen, it is important that resultant court ordersappropriately reflect the exact nature of each order made in accordance with the terms provided in the Code. The Provincial Court Practice [19] As earlier stated, the accused consented to the revocation of his judicial interim release in the provincial court.

In order tounderstand the facts and argument in this case it is helpful to briefly describe the process that has been adopted by that court. [20] According to the Provincial Court Pre-trial Coordination ProtocolAdult Charges, online: <http://www.manitobacourts.mb.ca/site/assets/files/1175/pre-trial_coordination_protocol_updated_may_12_2014.pdf>, all initial in-custody appearances are before a staff justice of the peace, who goes bythe title of a pre-trial coordinator (PTC), in a bail triage docket. [21] Regardless of whether an accused person wishes to apply for judicial interim release, in matters where s. 524(8) is applicable,both the federal and provincial Crown maintain that those matters should not move along in the pre-trial process until a determination has beenmade pursuant to that section.

In such cases, the practice is that the matter will either be transferred to a bail court before a provincial courtjudge for a Crown application pursuant to s. 524(8) or an accused can consent to the application. [22] If an accused consents to the s. 524(8) application, both the Crown and defence counsel complete a form titled “CROWN ANDDEFENCE AGREED BAIL CONDITIONS” (the consent form). In this case, under a

section of the consent form titled “BAILREVOCATION”, three boxes have been checked off. One indicating “Existing Bail,” a second indicating “s. 524(8)” and a third indicating“consent of Crown and Defence.” Both counsel signed the form and it was filed with a PTC for approval. The PTC checked a box indicatingthat the previous release orders were “revoked” and signed the form.

For further clarity, a copy of the form is attached as Appendix A to thisdecision. [23] Once a revocation has occurred, the practice has developed in the provincial court that if an accused subsequently chooses toapply for judicial interim release, the matter can be added back to a bail court docket for an application before a provincial court judge. Decision of the Sentencing Judge [24] In reaching his conclusion that the accused should be credited for PSC at a rate of 1.5:1, the sentencing judge indicated that hewas relying on the unreported decision of R. v. Saunders (13 December 2011), Winnipeg (Man. Prov.

Ct.), as authority for the proposition that,where an accused, in circumstances such as these, has not made an application for judicial interim release that has been denied, he or she is notsubject to an order of detention pursuant to s. 524(8). [25] In Saunders, the court held that a consent revocation of a recognizance pursuant to s. 524(8) does not result in an order ofdetention based on the rationale that, because an accused still has the right to apply for judicial interim release, he or she could not be subject to adetention order.

Rather, the term revocation only applied to the cancellation of the previous order of judicial interim release. The Positions of the Parties [26] The Crown agrees that the quantum of the sentence imposed in this case (27 months’ incarceration) is not unfit. However, itcontends that the sentencing judge erred in law when he credited the accused for PSC at a rate of 1.5:1.

In support of its position, it notes that theinterpretation attributed to the provisions by the sentencing judge is inconsistent with their language and fails to respect the intention of theamendments to the Code. [27] It also argues that the sentencing judge erred when, after crediting the accused at a ratio of 1.5:1, he rounded the quantum upfrom five and one-half to six months on the basis that under no circumstances is an accused entitled to credit for PSC at a rate higher than 1.5:1. [28] The accused maintains that the sentencing judge was correct.

He states that a revocation does not, of itself, constitute adetention and that an order of detention can only occur after the two-stage process of s. 524(8), as outlined in R. v. Parsons (G.J.) (1997), (NL CA), 161 Nfld. & P.E.I.R. 145 (C.A.), has been completed. He argues that the first stage is the determination of misconductwhich results in cancelling the existing form of release and the second is comprised of the opportunity to show cause why detention is notjustified. He contends that an order of detention can only issue after an accused has been denied judicial interim release.

Standard of Review [29] Determination of the meaning of the words in ss. 524(8) and 719(3.1) involves an exercise in statutory

interpretation which is aquestion of law and therefore is governed by the standard of review of correctness. If the sentencing judge has correctly interpreted the law, theapplication of the law to the facts is an exercise in discretion that is entitled to deference (Stonefish at paras. 29-30). Analysis

Interpretation of Section 524(8) [30] I begin the analysis with an examination of s. 524(8) because it is the application of that

section that triggers s. 719(3.1). The Two-Stage Hearing Process

[ 31 ] Jurisprudence has established that a s. 524(8) hearing is comprised of a two-stage process. It was first described in Parsons (at para. 21 ): Section 524(4) of the Criminal Code contemplates a two stage hearing where the Crown is initially required to present evidence to enable the judge to find either: (

a) that the accused has contravened or has been about to contravene his recognizance; or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after the recognizance was entered into. Although the burden and standard of proof applicable to such a determination is not stated, given that it is the Crown that is making the application and alleging justification for being before the court, the burden must be on the Crown to present sufficient evidence justifying the court to act. As on bail hearings generally, the standard of proof would be one of a balance of probabilities.

If, applying that burden and standard, the judge finds either a contravention of an existing recognizance or that there are reasonable grounds to believe that an indictable offence has been subsequently committed, the judge is required to cancel the recognizance and order the accused be retained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention is not justified within the meaning of s. 515(10).

On this second stage of the hearing, the burden is on the accused to show cause on a balance of probabilities. [ 32 ] That process has been endorsed by this court in R. v. Le (T.D.) , 2006 MBCA 68 at para. 12 , 205 Man.R. (2d) 41 . [ 33 ] The issue is where to draw the distinction between the two stages. Specifically, is stage one completed at the point of cancellation of the recognizance or the order of detention? Conflicting Jurisprudence [ 34 ] In Manitoba, there are conflicting decisions regarding the

interpretation of s. 524(8), and disagreement as to when an order of detention should occur pursuant to that section. [ 35 ] The first line of reasoning begins with the Saunders decision in 2011. It must be noted that, unlike this case, in Saunders , the box indicating that the consent revocation was pursuant to s. 524(8) was not checked off. Nonetheless, the court held that a proper

interpretation of that

section leads to the conclusion that the term revocation only refers to the cancellation of the prior order of interim release and that this step of the s. 524(8) process is not discretionary. However, the court held that the second stage (i.e., the order of detention) is discretionary because it depends on the accused’s ability to show cause why detention is not warranted. [ 36 ] Saunders was followed in R. v. McDougall (M.) , 2014 MBPC 35 , 307 Man.R. (2d) 303 ; R. v. Gamblin (6 June 2014), Winnipeg (Man. Prov. Ct.); and R. v. Cummer (19 November 2014), Winnipeg CR12-01-31726 (Man.

Q.B.). [ 37 ] Conversely, other cases in Manitoba have held that an order of detention occurs immediately upon cancellation of the prior order of judicial interim release pursuant to s. 524(8). For example, as earlier stated, this appeal was heard at the same time as the appeal from the decision in R. v. Cook (4 July 2014), Winnipeg (Man. Prov. Ct.). In Cook , the court held that an order of detention follows once an application for revocation is granted. In making this finding, the sentencing judge in that case stated: At the end of the day, once revocation has been issued, there is an order for detention under

Section 524 . That order remains effective until a show cause hearing is complete and the accused has proven why his detention is not necessary. There is not a remand or an adjournment of the revocation hearing. It is complete, the first stage is complete, once revocation issues. The accused is detained and therefore, based on my reading of the relevant sections, once he is ordered detained pursuant to 524, he is not entitled to apply for one point five-to-one credit for those matters. [ 38 ] On this

interpretation, the revocation process includes an order of detention at the first stage of the s. 524(8) hearing. The second stage of the hearing is only engaged when the accused applies for judicial interim release. [ 39 ] Other cases which have held that an order of detention immediately follows cancellation of judicial interim release include R. v. Perrier (16 June 2014), Winnipeg (Man. Prov. Ct.); R. v. G.M. , 2014 MBPC 57 ; and R. v. Bushie (29 January 2015), Winnipeg CR13-01-33065 (Man. Q.B.). In Bushie the court succinctly stated: ….

The wording of 524(8) expressly states an accused detained upon his bail being revoked unless he shows cause why his detention is not necessary. There is no requirement that an accused bail be denied in order for him to be detained. [ 40 ] Before leaving my review of Manitoba case law interpreting s. 524(8), I note that a number of the decisions following the reasoning in Saunders (although not all) were decided prior to the decision of the Yukon Court of Appeal’s decision in R. v. Chambers (D.F.) , 2014 YKCA 13 , 362 B.C.A.C. 22 , application for leave to appeal to S.C.C. dismissed, [2014] S.C.C.A. No. 534 (QL).

In that case, the Yukon Court of Appeal overturned the ruling of the Yukon Territorial Court which held that the accused was not detained in custody for the purpose of s. 524(8) when the judge granted the Crown’s application for revocation. In holding that revocation included a corresponding order of detention, the appeal court adopted a commonsense approach to conclude that the accused was detained pursuant to s. 524(8) upon the revocation of his prior judicial interim release.

The court noted at para. 51, “If he was not, by what authority was he detained?” and further at para. 52, “There is no requirement for an express order of detention after a show cause hearing” (emphasis added).

As I will later explain, these statements are an accurate reflection of s. 524 of the Code as a whole and the entire scheme for judicial interim release found in the Code . [ 41 ] In my view, the Chambers decision and the Manitoba cases that reach the same conclusion are correct to the extent that they hold that there must be an order of detention made upon cancellation of an order of judicial interim release pursuant to s. 524(8).

Language of s. 524(8) [42] In Stonefish, Steel J.A. neatly summarized the approach the courts are to take when interpreting a provision in a statute (at para.38): …. The modern principle of statutory

interpretation is to interpret legislation holistically. This is clear from the direction of the Supreme Courtof Canada, which adopted the comment of Elmer A. Driedger, Construction of Statutes, 2nd Ed. (Toronto: Butterworth & Co. (Canada) Ltd.,1983) that “[t]oday there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (at p. 87). SeeR. v. D.I., 2012 SCC 5 , [2012] 1 S.C.R. 149; 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, at para. 116, quoting from Rizzo & Rizzo ShoesLtd. (Bankrupt), Re, (SCC), [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, at para. 21. [43] In my view, a plain reading of s. 524(8) indicates that an order of detention is mandatory upon cancellation of a recognizance. Itis also supported by the grammatical structure of the statute.

Clearly the word “shall” applies to both “cancel” and “order,” and the requirementis conjunctive, not disjunctive. That is, if it had been intended that a person be ordered to be detained only after having made an application forjudicial interim release, the legislation would have been worded differently. [44] Such an

interpretation is bolstered by a historical consideration of the legislation. As noted by John A. Scollin, Q.C. (as he thenwas), Pre-Trial Release, 2nd ed. (Toronto: The Carswell Company, 1977) (at p. 73): The Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93, s. 55 made the following changes to this section: …. 2. On proof of the prescribed misconduct, cancellation of the existing process is mandatory. Prior to the amendments the

section provided thatthe judge or the justice “may” cancel and, in the case of a judge, may make such order as to him seemed proper in the circumstances. …. [emphasis added] [45] It is also consistent with academic

interpretation of the section. For example, Justice Trotter describes the process as (at ch.11.2): 3. Where the judge or justice finds the accused has breached or was about to breach his or her release order, or where the judge or justicebelieves on reasonable grounds that the accused has committed an indictable offence, the judge or justice shall cancel the form of release andorder that the accused be detained in custody [s. 524(4)(8)]. 4. Where no finding is made as described in #3 and the original form of release is not cancelled, the accused must be ordered released fromcustody [s. 524(7)(11)]. 5.

If an accused is detained in custody as described in #3, he or she is then given a reasonable opportunity to demonstrate why his or herdetention is not justified within the meaning of s. 515(10) [s. 524(4)(8)]. [emphasis added]

Section 524 and Other Release Provisons [46] In my view, the authority to detain a person once prior judicial interim release has been cancelled is by way of an order ofdetention pursuant to s. 524(8). Such a view is consistent with the overall provisions for judicial interim release found in the Code. [47] Part of the intent of the provisions of

Part XVI of the Code is facilitation of release of persons detained as soon as possible. Indeed, the provisions of the Code dealing with release are graduated, with differing rights applying at each level of detention. Upon arrest,ss. 496 and 497 of the Code mandate release by a peace officer. If not released by a peace officer, an officer in charge must consider release by

virtue of ss. 498 and 499. If not released, s. 503 provides that an accused must be taken before a justice within 24 hours, or as soon as possible. Once an accused has been taken before a justice, s. 515 becomes engaged and mandates that a justice release an accused unless the prosecutor shows cause (with some exceptions) why detention in custody is justified. [ 48 ] When s. 515 is engaged, any further detention in custody of the accused must be by way of remand by the court. Importantly, s. 516 of the Code states: Remand in custody 516.

(1) A justice may, before or at any time during the course of any proceedings under

section 515 , on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused. [ emphasis added] [ 49 ] It is important to distinguish between a remand of a hearing for judicial interim release pursuant to s. 515 and an order of detention made pursuant to s. 524(8).

Section 516 authorizes a remand of an accused in custody longer than three days only with his or her consent. The reason being, in part, because the accused is not subject to an order of detention.

Under s. 515, an order of release is the default position whereas under s. 524(8), an order of detention is the default position. [ 50 ] In my view, had Parliament intended that an order of detention not issue until after the accused has been given an opportunity to show cause pursuant to s. 524(8) (i.e., the accused is simply being held on remand on the matter to which s. 515 was originally applicable), s. 524(8) would have incorporated s. 516. [ 51 ] This position is supported by the fact that a review of s. 524 in its entirety shows Parliament turned its mind to the issue of the release related provisions applicable to s. 515.

Of note, s. 524(12) incorporates s. 517 (non-publication), s. 518 (inquiries to be made by a justice and evidence) and s. 519 (release of an accused). In my view, it is significant that s. 516 is not incorporated. [ 52 ] Thus, the argument that an accused is simply consenting to a remand in custody, as opposed to being detained by virtue of s. 524(8) after his or her prior judicial interim release has been cancelled, is not supported by the legislative framework. Once release has been cancelled, an accused’s consent is not required for his detention beyond three days.

Bifurcation of Proceedings [ 53 ] Confusion in the

interpretation of s. 524(8) is caused, in part, by the practice of bifurcating the proceeding in the provincial court. As was noted by Mainella J. (as he then was) in Rhodes (at paras. 36-37 ): I agree with the remarks of Joyal C.J.Q.B. in Fisher [2013 MBQB 40 , 287 Man.R. (2d) 250 ] at paras. 39-45, there are normative and practical reasons that, in circumstances where an accused is alleged to have committed a new offence(

s) while on judicial interim release, the Provincial Court judge should hear the revocation application concurrently with the show cause hearing for the new offence(s). That should be the practice that guides Provincial Court judges in Manitoba when faced with a revocation application by the Crown over which they have jurisdiction pursuant to s. 524(3) of the Criminal Code . Accordingly, the Crown’s application for revocation should have proceeded at the same time as the Provincial Court judge dealt with the accused’s new breach of recognizance offence. See Fisher at para. 49 . The Provincial Court judge erred in declining to exercise his revocation jurisdiction pursuant to s. 524(3) (

b) of the Criminal Code . The Provincial Court judge had the legal duty to reconsider the propriety of the accused’s continuing release in light of the acknowledged breach to which he had pled guilty. [ 54 ] While the above comments apply with respect to a hearing for judicial interim release on new charges that often accompany allegations involving breaches of orders of judicial interim release, they are just as applicable to the s. 524(8) hearing. [ 55 ] To summarize, a hearing pursuant to s. 524(8) is initiated by the Crown. It is in the Crown’s discretion whether to make an application or not.

If an accused does not wish to apply for judicial interim release, the Crown is not prevented from making the application and obtaining the order of detention. The order of detention does not preclude a later application for judicial interim release by the accused. The point is simply that the accused must be ordered to be detained once the prior order of judicial interim release is cancelled. Failure to apply for judicial interim release by the accused cannot operate to bar the Crown from obtaining the order of detention.

If the hearing is bifurcated (as is the current practice) then the order of detention must be made at the time that any prior judicial interim release is cancelled. [ 56 ] Additional confusion is caused by failure to employ the words provided in the Code when enunciating what is being ordered. That is, while the process is referred to as revocation, the orders of the court should be particularized as cancellation of an order of existing judicial interim release and an order of detention . This is consistent with comments made by the British Columbia Court of Appeal in R. v.

Costain (W.) , 2014 BCCA 458 , 364 B.C.A.C. 19 , wherein the court stated, “judges who are presiding over proceedings under s. 524 might be well advised to consider and to clarify what orders they are making and what orders they are not” (at para. 17). [ 57 ] Moreover, if the s. 524(8) proceeding is bifurcated, jurisdiction to detain is maintained through the order of detention made at

the first stage of the process. Application of the Law to this Case [58] In this case, the accused argues that his consent to revocation did not constitute an acknowledgement that the Crown couldprove that the circumstances existed to justify a cancellation of his prior judicial interim release. That is, he consented to be detained, but he didnot consent to a finding of misconduct.

He argues that, no finding of misconduct having been made, he could not be considered detainedpursuant to s. 524(8). [59] First, I would note that the argument the accused makes appears to be directly contradicted by the consent form signed by hiscounsel which indicates he is consenting to revocation pursuant to that very section. [60] I agree that there is no authority vested in the justice to revoke interim release absent a finding of misconduct (R. v. Major(1990), (ON SC), 76 C.R. (3d) 104 (Ont. Dist. Ct.)).

However, the fact that the PTC was in possession of sworninformations alleging failures to comply with recognizances and reinvolvement in substantive offences, along with the consent of the accused’scounsel, was sufficient for the conclusion that, on a balance of probabilities, in accordance with the wording of s. 524(8), there were reasonablegrounds to believe the accused had committed an indictable offence while on judicial interim release. The situation may have been different ifthe Crown was relying on an anticipated breach of judicial interim release as contemplated in s. 524(8)(

a) of the Code. [61] Finally, the above applies regardless of whether the cancellation of prior judicial interim release and order of detention occurswith the consent of the accused or by way of a hearing initiated by the Crown.

Interpretation of Section 719(3) [62] As stated, the purpose of the Act was to limit judicial discretion in determining the amount of PSC granted to an offender. It hasalso been described by Karakatsanis J. in R. v.

Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, as “to remove any incentive for an accused to dragout time in remand custody, and to provide transparency so that the public would know what the fit sentence was, how much credit had beengiven, and why” (at para. 4). [63] As was noted by the Crown in its factum, the deliberate choice to limit the ratio of 1:1 credit for PSC was reflected by thecomments of the Minister of Justice and Attorney General of Canada during the House of Commons Debates, 40th Parl., 2nd Sess., No. 41 (20April 2009) at 2418 (Hon.

Rob Nicholson), wherein he stated: I want to repeat that no extra credit would be granted under any circumstances for repeat offenders or those who have violated their bailconditions. [64] Examination of the French and English versions of s. 719(3.1) evidences the use of different language in terms of what isrequired before it is engaged: Exception 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless thereason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody undersubsection 524(4) or (8).

Exception 719(3.1)

Malgré le paragraphe (3), si les circonstances le justifient, le maximum est d’un jour et demi pour chaque jour passé sous garde, saufdans le cas où la personne a été détenue pour le motif inscrit au dossier de l’instance en application du paragraphe 515(9.1) ou au

titre del’ordonnance rendue en application des paragraphes 524(4) ou (8). [emphasis added] [65] Unlike the English and French versions of ss. 524(4) and 524(8) of the Code which closely parallel each other (“cancel … andorder” versus “annuler … et ordonner”), there is a difference between the French and English versions of s. 719(3.1). The English version isarguably broader – it refers only to people “detained in custody under subsection 524(4) or 524(8)” – while the French version refers to peopledetained pursuant to an order made under ss. 524(4) or 524(8). [66] In R. v. Dickson (W.A.), 2013 MBCA 58, 294 Man.R. (2d) 103, Chartier J.A. (as he then was) stated (at para. 40): … [T]he

interpretation of bilingual legislation consists of a search for the

interpretation of the provision that most readily conforms to the axiomthat legislative provisions state only one law, but state it in two languages. Due to the fundamental principles of bilingual statutory

interpretation,“both versions of a statute must be read together to assess Parliament’s intention” (R. v. Lewis (A.J.) et al., (SCC), [1996] 1

S.C.R. 921 ; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1 , at para. 72 ). …. [ 67 ] In my view, the use of the word “order” in both versions of s. 524(8) and the French version of s. 719(3.1) lead to the conclusion that the application of the provision requires an order of detention pursuant to s. 524(8). The use of the words “detained in custody under subsection 524(4) or (8)” in the English version of s. 719(3.1) are not inconsistent with such an

interpretation. Thus, in order to engage s. 719(3.1), an order of detention is required. [ 68 ] The current practice of referring to a revocation order causes unnecessary confusion with respect to whether the order is merely cancelling judicial interim release or is intended to include an order of detention despite the fact that one necessarily follows the other. Therefore, the language of the Code should be used in both the s. 524(8) process and the s. 719(3.1) process.

Decision [ 69 ] Even if a 1.5:1 PSC credit would have been available to this accused, the actual sentence imposed exceeded the maximum allowed by s. 719(3) . That is, credit at 1.5:1 would have amounted to five and one-half months and not six months. The credit at a rate greater than that allowed by the legislation constituted an error in law. [ 70 ] More importantly, the sentencing judge also erred in law when he held that an order of detention pursuant to s. 524(8) could not be made absent a show cause hearing.

In fact, the accused was detained in custody under s. 524(8) when his judicial interim release was revoked. [ 71 ] In this case the PTC considered the consent of the accused and revoked his prior forms of judicial interim release.

While an order pursuant to s. 524(8) includes a detention order following the cancellation of judicial interim release, in order to be consistent with the language of the Code and to invoke s. 719(3.1), the PTC should have made an order cancelling judicial interim release and an order of detention. [ 72 ] The accused was sentenced to 27 months’ incarceration and credited with six months’ PSC.

Had the PSC been correctly credited at a ratio of 1:1 it would have amounted to a credit of 109 days. [ 73 ] Therefore, for all of the above reasons, I would grant leave to appeal the sentence imposed and vary the sentence to 27 months’ incarceration minus credit for 109 days PSC. J.A. I agree: J.A. I agree: J.A.

CREST COURT OF APPEAL PROVINCE OF MANITOBA WINNIPEG R3C OP9 CORRIGENDUM March 22, 2016

TO WHOM IT MAY CONCERN: Re: R v Ibrahim , 2015 MBCA 62 Docket: AR14-30-08197 Released: June 26, 2015 The attached decision replaces the previous decision which was released on June 26, 2015. In para 20, the phrase “judicial justice of the peace” is replaced by “staff justice of the peace”. The sentence now reads as follows: According to the Provincial Court Pre-trial Coordination Protocol Adult Charges, online: <http://www.manitobacourts.mb.ca/site/assets/files/1175/pre-trial_coordination_protocol_updated_may_12_2014.pdf>, all initial in-custody appearances are before a staff justice of the peace, who goes by the title of a pre-trial coordinator (PTC), in a bail triage docket.