R. v. Johnson, 2010 ONSC 6684

CITATION : R. v. Johnson, 2010 ONSC 6684 COURT FILE NO.: 3659/10 DATE: 2010-12-03 SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. Robert Jeffrey Johnson BEFORE: J.A. Ramsay J. COUNSEL: Mr Robert Mahler for the Crown Mr Geoffrey Hadfield for the accused HEARD: 2010-12-03 ENDORSEMENT [ 1 ] This is an application under s.525 of the Criminal Code to determine whether the accused should be released from custody. The accused was taken before a justice on July 31, 2010 on eleven charges, most of which are indictable, and none of which is mentioned in s.469 of the Code.

Since then he has been remanded in custody numerous times. His bail hearing has been repeatedly adjourned at his request. He is next due to appear in the Ontario Court on December 7, 2010. The accused is not asking for me to release him, but I think it apt to deal with a jurisdictional question that was raised by the Crown, in view of its importance to other cases in the region. [ 2 ] Crown counsel submits that I cannot review the detention of the accused because no bail hearing has been held. I think that he is right. [ 3 ] The Criminal Code provides as follows: Time for application to judge 525.

(1) Where an accused who has been charged with an offence other than an offence listed in

section 469 and who is not required to be detained in custody in respect of any other matter is being detained in custody pending his trial for that offence and the trial has not commenced (

a) in the case of an indictable offence, within ninety days from (

i) the day on which the accused was taken before a justice under

section 503, or (ii) where an order that the accused be detained in custody has been made under

section 521 or 524, or a decision has been made with respect to a review under

section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision, or (

b) in the case of an offence for which the accused is being prosecuted in proceedings by way of

summary conviction, within thirty days from (

i) the day on which the accused was taken before a justice under subsection 503(1), or (ii) where an order that the accused be detained in custody has been made under

section 521 or 524, or a decision has been made with respect to a review under

section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision, the person having the custody of the accused shall, forthwith on the expiration of those ninety or thirty days, as the case may be, apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody. [ 4 ] There are three conditions, then, that trigger the keeper’s duty under s.525(1) of the Criminal Code to apply to a judge for a hearing to determine whether the accused should be released on charges that are not mentioned in s.469 of the Code: a. the trial has not commenced; b. the accused is “being detained pending his trial;” and c. the specified period of time has elapsed. [ 5 ] In the case at bar there is no question that the trial has not commenced.

Is the accused “being detained in custody pending his trial?” [ 6 ] The Crown argues that an accused who is being detained on remand pending his bail hearing is not “being detained in

custody pending his trial.” The accused is being detained, it is submitted, but only until his next court appearance, at which time he will have the right to a bail hearing, subject only to the prosecutor’s right to ask for an adjournment, which can be for no more than three full days: Criminal Code, s.516 . [ 7 ] If this is the case, why do clauses 515(1)(a)(

i) and (b)(

i) of the Code require the keeper to initiate the bail review ninety days or thirty days after the initial appearance of the accused under s.503, except in cases to which the specific provisions of clauses 515(1)(a) (ii) and (b)(ii) apply? If the bail hearing is held more than three months after the first appearance, as is common in a certain class of cases in Niagara, the detention review under s.525 would have to take place immediately thereafter. [ 8 ] The certain class of cases to which I refer involves the small minority of accused persons whose chances of release are not great for whatever reason.

The practice in these cases seems to be to adjourn the bail hearing any number of times that the accused requests. It is not unheard of for an accused person to be committed for trial without having had a bail hearing. I doubt whether the drafters of the Bail Reform Act foresaw this. But there is no policy reason that would militate against an immediate review following a delayed order. [ 9 ] I think that the words of the statute are clear.

For s.525 to apply, the accused must be “detained pending his trial.” This means detained by any order that does not expire on its own terms and could therefore result in the detention of the accused until trial. That would not include a remand under s.516 , which expires on the specified remand date. It would include a detention order under s.515, or a release order made under that section, if it provides for conditions precedent to release, such as cash deposit or surety, when the conditions precedent have not been met.

It would also include detention under ss.521 or 524, which are specifically mentioned in the section. When does the keeper have to apply for a hearing? [ 10 ] If clauses 525(1)(a)(

i) and (b)(

i) apply, that is, when the detention order or the release order that has not yet been complied with is not made under ss.521 or 524, and no review under s.520 has been taken, the ninety days (or thirty days) runs from the first appearance of the accused under s.503. [ 11 ] If the accused is detained by an order made on a review of release at the instance of the prosecutor under

section 521, or on a hearing under s.524 when the accused has been arrested for breach of the terms of the release, the ninety days (or thirty days) runs from the time that the accused is taken into custody under the order. [ 12 ] If the accused is detained, and a review under s.520 is taken at the instance of the accused, and the review does not result in release, the ninety days (or thirty days) runs from the time of the decision on review. The effect of this provision is that if the accused is detained, an unsuccessful review under s.520 delays the review under s.525.

No doubt Parliament thought it unnecessary to have two reviews in quick succession. Conclusion [ 13 ] A person who is detained on remand under s.516 of the Criminal Code is not “detained pending his trial” within the meaning of s.525(1) of the Code. The application is quashed. J.A. Ramsay J. Date: 2010-12-03