R. v. W.F., 2023 NSSC 281

SUPREME COURT OF Nova Scotia Citation: R. v. W.F., 2023 NSSC 281 Date: 20220920 Docket: CRH-490540 Registry: Halifax Between: His Majesty the King v. W.F.

DECISION ON BAIL REVOCATION (SECOND) Restriction on Publication: s.486.4, s.486.5, s.517(1), and s.539(1) Judge: The Honourable Justice John BodurthaHeard: September 1, 2022, in Halifax, Nova Scotia Oral Decision: September 20, 2022Written Decision: August 31, 2023Counsel: William Mathers and Tiffany Thorne, Crown Counsel Jonathan Hughes, Defence Counsel By the Court (Orally): Introduction [1] During the proceedings in court, W.F. has expressed a preference of being addressed by first and last name.

For the purposesof this decision and, in keeping with the publication bans in place, I will use initials only and gender-neutral pronouns throughout. [2] On March 22, 2022, this Honourable Court found W.F. guilty of sexual assault against N.S., contrary to

section 271 of theCriminal Code, R.S.C. 1985, c. C-46 (the “Code”) and sexual interference against N.S., contrary to

section 151 of the Code. The chargeof sexual assault was conditionally stayed pursuant to the rule against multiple convictions for the same delict: R. v. Kienapple, (SCC), [1975] 1 SCR 729. [3] After the verdict, the Crown brought an application, pursuant to s. 523 of the Code, that W.F.’s Release Order be revoked, andthat W.F. be remanded pending sentencing. The application was heard on April 8, 2022. [4] I gave an oral decision on April 8, 2022 denying the Crown’s application primarily on the basis that there would not be alengthy delay between the verdict and the sentencing decision. A sentencing hearing was set for August 26, 2022, to permit time for the

preparation of a pre-sentence report and to accommodate the various schedules of counsel and the Court. [ 5 ] The day before the hearing W.F. filed correspondence and an affidavit with the Court alleging, among other things, that W.F. had been tortured by Central Nova Scotia Correctional Facility guards while held on remand because of their gender identity. The day of the hearing it became apparent that W.F. had filed the documents with the Court without their counsel’s knowledge, nor did W.F. provide copies of the documents to defence counsel or the Crown.

The Court made copies and provided the documents to counsel and started the hearing late to allow counsel to review the documents. [ 6 ] Counsel indicated that, based on the allegations contained in the documents, the sentencing hearing would have to be adjourned. The Crown advised that it was renewing its application to revoke bail and wanted to argue the application on that day. The Court declined to hear the application, which was opposed by defence counsel, without proper submissions from counsel. The Court set the matter down for September 1, 2022. My decision regarding the revocation of bail follows.

Legislation [ 7 ] There are two sources of authority for the Court to remand an accused pending sentencing upon a finding of guilt: sections 523(1) (b)(ii) and 523(2) (

a) of the Code . [ 8 ] Section 523(1)(b)(ii) reads as follows: 523.

(1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, promise to appear, summons, undertaking or recognizance was issued, given or entered into, (

a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is completed; or (

b) in any other case, (

i) until his trial is completed, and (ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of

section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence. [ 9 ] Section 523(2)(

a) reads: 523(2) Order vacating previous order for release or detention 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

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 an 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. [ 10 ] As indicated in my previous decision with respect to the Crown’s first application to revoke W.F.’s bail ( 2023 NSSC 280 ), the law is not settled as to whether section 523(1) (b)(ii) or section 523(2) (

a) is the authority for the revocation of bail after a finding of guilt and before sentencing but I find the reasoning in R. v. BTQ , 2017 ABQB 715 , which was adopted by the Alberta Court of Appeal in R. v. Aheer , 2020 ABCA 232 (see para. 15), to be persuasive and I adopt it as the preferred approach. [ 11 ] In reviewing the legislation and applying the modern approach to statutory

interpretation which “requires that the words of a provision be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”: R. v. Alex , 2017 SCC 37 , at para. 24 , quoting E.A. Driedger, Construction of Statutes (2 nd ed, 1983), at p. 87. [ 12 ] In reviewing the two provisions, I conclude that section 523(1) (b)(ii) and section 523(2) provide two distinct methods of revoking a release order: s. 523(2) allows the judge to do so with cause at any time, while s. 523(1) (b)(ii) authorizes such an order

between conviction and sentencing, without a requirement to show cause. The court in Aheer described the former provision as havingeffect “post-conviction, and prior to sentencing” (my emphasis), when the presumption of innocence has expired (see para. 17). Theimplication is that the order need not be made on the spot at the time of conviction, despite the literal language of the provision (“at thetime the accused is determined to be guilty”). This

interpretation seems more logical than one that limits the discretion under s. 523(1)(b)(ii) to an arbitrary point immediately after sentencing, since the key development is that the person being tried no longer enjoys thepresumption of innocence. [13] In addition, the concluding clauses of s. 523(1)(b)(ii) (“unless, at the time the accused is determined to be guilty, the court,judge or justice orders that the accused be taken into custody pending such sentence”) would be redundant if they do not create adiscretion distinct from the power under s. 523(2). [14] In Aheer, the court makes a distinction between s. 523(2), which does require cause to be shown, and s. 523(1)(b)(ii), wherecause is not necessary (see paras. 17-18).

Justice Rosinski accepted the Aheer approach in R. v. AMB, 2022 NSSC 203 (see paras. 37-38). [15] This is the view suggested by Ewaschuk, Criminal Pleadings and Practice in Canada, at §6:35, where the authors cite Aheer insupport of the statement that “Post-conviction, and prior to sentencing, the trial judge who heard all the evidence and convicted theaccused has the “unique discretion” contemplated in s. 523(1)(b)(ii) to revoke bail in an appropriate case, without the Crown having to“show cause”.

Post-conviction, the accused “no longer” benefits from the presumption of innocence” (italics in original). [16] In my view, even where the statutory provision is described as “without cause”, the discretion would require some judicialreason to exercise it. The issue before me is whether the facts from my initial denial of the application to revoke W.F.’s bail havematerially changed such that I should now exercise my discretion and revoke bail.

In the current circumstances, the facts have materiallychanged and I shall revoke W.F.’s bail. [17] W.F.’s detention pending sentencing is necessary to maintain confidence in the administration of justice. Subsections 515(10)(c)(i)-(iv) lists four non-exhaustive factors that may be considered in assessing whether detention is necessary to maintain confidence inthe administration of justice. Section 515(10) reads as follows: 515. . . .

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [18] In exercising my discretion, I am primarily concerned with the tertiary ground s. 515(c). In R. v. Green, (2006), (ON SC), 210 C.C.C. (3d) 543, [2006] O.J.

No. 3240 (Sup. Ct.), the Court discussed public confidence in the administration ofjustice at para. 14: 14 Finally, neither public safety nor maintaining public confidence in the administration of justice requires that bail be routinely revokedfollowing conviction. Parliament has sought to ensure public safety in two ways: first, by providing that, for the most serious offences,those enumerated in s. 469, bail will automatically be revoked following conviction; and second, by providing for the revocation of bailunder s. 524 where the accused has not complied with the terms of the judicial interim release order.

The important question of publicconfidence in the administration of justice must be assessed from the perspective of a public that is both informed about our system ofbail and the facts of the particular case. This includes an appreciation of the fact that the offender, although convicted, has already beengranted judicial interim release and has complied with the terms of that release, usually for a considerable period of time.

It is difficult tounderstand how public confidence in the administration of justice will be undermined by the continued release of an offender who hasdemonstrated that he or she is not a threat to public safety and does not pose a risk of flight nor interference with the administration ofjustice.

This is particularly true given that the time between conviction and sentencing rarely exceeds two months. [19] In its original submissions, one of the Crown’s arguments related to W.F.’s efforts to delay or obstruct these proceedings: 34 With regard to the caution given by Justice Ducharme in Green that, “the trial judge should also keep in mind that the revocation ofbail can have a significantly detrimental impact on the offender’s ability to prepare for sentencing,” it should be noted that JusticeDucharme also commented that, “the time between conviction and sentencing rarely exceeds two months.” W.F. has demonstrated aremarkable proclivity for delaying these proceedings: repeatedly changing counsel; filing and withdrawing admissions; making pretrialapplications which are then at least partially conceded on the day of; seeking the retroactive exclusion of evidence previously admitted,etc.

If the history of these proceedings through the preliminary inquiry and trial phase are any gauge of the sentencing to come, JusticeDucharme’s time estimates are unlikely to be any guide. Further delays will only erode the public’s confidence in the administration of

justice with respect to these proceedings. [ 20 ] In denying the original application I said: I see no reason why a sentencing hearing cannot be scheduled two or three months from now. There were only two pre​sentence reports being considered: a pre-sentence report and a comprehensive forensic sexual behavior pre-sentence assessment. As for the former it is the Crown's and the Court’s understanding that pre-sentence reports are prepared more rapidly for individuals in custody.

As for the latter, that might have been difficult to prepare while W.F. was in custody, but W.F. has refused to consent to such an assessment. I do not anticipate a lengthy delay between the sentencing hearing and a sentencing decision that would erode the public confidence in the administration of justice should W.F. remain on her release conditions. … As was the case in R. v. Green , the delay until W.F. is sentenced will be relatively short. … [ 21 ] This Pollyanna view of the timeframes to complete matters in this case has proven to be demonstrably false. W.F. was found guilty on March 22, 2022.

Their sentencing hearing is not set as of today, some six months later. We now have a potential Charter argument to set down, argue, and have a decision made, followed by another date for sentencing and a final decision. This timeline anticipates no other delays or applications, which have been rare in this case. [ 22 ] In assessing public confidence, I must consider what a reasonable member of the public would think about W.F.’s continued release until their sentencing hearing.

I must assume that this reasonable person is familiar with the fundamental values of our criminal law, including the right not to be unreasonably deprived of bail. [ 23 ] I find that a reasonably informed member of the public would lose confidence in the administration of justice if W.F., a person now convicted twice of sexual offences against children, was to remain free for over six months and counting while awaiting sentencing. [ 24 ] In addition, both the Crown and Defence in their prior written sentencing submissions were recommending custodial time, which is not surprising given that W.F. has previously been convicted for sexual offences against children, and the guidance from the Supreme Court of Canada in R. v.

Friesen , 2020 SCC 9 , in relation to sentencing offenders for sexual offences against children. Conclusion [ 25 ] The facts upon which I exercised my discretion on the Crown’s first application have dramatically changed. I am no longer of the view that W.F.’s release pending sentencing would not cause a reasonable and informed member of the public to lose confidence in the administration of justice. We are close to six months since W.F. was convicted; too much time will have passed between the date of W.F.’s finding of guilt and W.F.’s eventual sentencing.

Therefore, I am revoking W.F.’s bail and remanding them into custody pending their sentencing. Bodurtha, J.