R v Wapass, 2021 SKCA 131

Court of Appeal for Saskatchewan Docket: CACR3479 Citation: R v Wapass , 2021 SKCA 131 Date: 2021-09-29 Between: Ivor Antoine Wapass Applicant (Applicant) And Her Majesty the Queen Respondent (Respondent) Before: Richards C.J.S. (in Chambers) Disposition: Application dismissed Written reasons by: The Honourable Chief Justice Richards On application from: CRM 17 of 2020, Battleford Application heard: September 20, 2021 Counsel: Jonathan Bodvarson for the Appellant Kelly Kaip for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] Ivor Wapass stands charged with second degree murder.

He has been unsuccessful on two bail applications in the Court of Queen’s Bench. Mr. Wapass now seeks a direction, pursuant to s. 680 of the Criminal Code , that a panel of this Court review his eligibility for bail. Mr. Wapass grounds his position on new evidence obtained since the Queen’s Bench proceedings that, in his view, significantly weakens the case against him and represents a change in circumstances. [ 2 ] The Court of Appeal and the Court of Queen’s Bench have concurrent jurisdiction to decide whether there has been a change in circumstances justifying judicial interim release.

However, in a situation like the one here where the s. 680 application is based solely on an alleged change in circumstances, the best practice is to have the matter dealt with in the Court of Queen’s Bench. Accordingly, and as explained below, I decline to make the direction sought by Mr. Wapass. II. FACTUAL BACKGROUND [ 3 ] Mr. Wapass is alleged to have murdered Roger Standingwater in the fall of 2018. He was charged as follows:

(1) On or about the 15th day of September, A.D. 2018 at Thunderchild First Nation in the Province of Saskatchewan, did commit second degree murder on the person of Roger Standingwater, contrary to section 235(1) of the Criminal Code . [ 4 ] The submissions made before the bail judge reveal that, in the early hours of September 15, 2018, following a 911 call, RCMP officers were dispatched to a house on the Thunderchild First Nation. They found Roger Standingwater on the floor of the residence. He was deceased. An autopsy report later determined his cause of death to have been blunt force trauma to the head. Mr.

Wapass, along with several other individuals, were present in the home when the authorities arrived. [ 5 ] Mr. Wapass was arrested and charged on November 1, 2019. He has remained in custody since that date. [ 6 ] Mr. Standingwater’s blood was found on the pants and shoes that Mr. Wapass had been observed wearing at the time of the incident. The Crown’s theory is that Mr. Standingwater’s blood was spattered on the clothing as a result of Mr. Wapass applying force to Mr. Standingwater. At the bail hearing, the Crown adduced a blood spatter analysis report that it says supports this theory. III.

THE QUEEN’S BENCH DECISIONS A. The first bail hearing [ 7 ] Mr. Wapass brought an application for judicial interim release pursuant to s. 522 of the Criminal Code . It was heard by the bail judge on February 13, 2020. [ 8 ] Section 522(2) provides that, where an accused person is charged with an offence listed in s. 469, the judge shall “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)”.

Murder contrary to s. 235 of the Criminal Code is an offence listed in s. 469 . [ 9 ] Section 515(10) requires a bail judge to consider three grounds that can justify detention: primary, secondary, and tertiary. It reads as follows:

(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 any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released 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 that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 10 ] The bail judge worked through each of the grounds set out in s. 515(10).

With respect to the primary ground, as per s. 515(10) (a), the bail judge found that Mr. Wapass had failed to demonstrate on a balance of probabilities that his continued detention was not necessary to ensure his attendance at future court appearances. The bail judge cited three factors as supporting this conclusion: (

a) four relatively recent failures by Mr. Wapass to attend court when required; (

b) a failure to abide by conditions which had resulted in his expulsion from a treatment program; and (

c) the serious nature of the charge. [ 11 ] Turning to the secondary ground under s. 515(10)(b), the bail judge found that Mr. Wapass had failed to demonstrate that his continued detention was not required for the protection or safety of the public. The bail judge concluded that the potential danger to the public posed by Mr. Wapass was too significant to be ignored. In this regard, he noted that Mr. Wapass’s violent offending was closely related to his ongoing abuse of alcohol and that the alleged killing of Mr.

Standingwater seemed to be near random in nature. [ 12 ] Finally, the bail judge considered the tertiary ground under s. 515(10)(c). After referring to R v St-Cloud , 2015 SCC 27 , [2015] 2 SCR 328, the bail judge worked through each of the four considerations enumerated in s. 515(10)(c): (

i) the apparent strength of the prosecution’s case (which he found to be relatively strong); (ii) the gravity of the offence (which he described as “a grave offence”); (iii) the circumstances surrounding the commission of the alleged crime (which he described as “chilling”); and (

d) the length of the term of imprisonment that Mr. Wapass would serve if convicted (which he noted to be life imprisonment if convicted of second degree murder). [ 13 ] The bail judge denied the application for judicial interim release on each of the primary, secondary, and tertiary grounds. B. The second bail hearing [ 14 ] On November 12, 2020, the bail judge heard a second application for judicial interim release brought by Mr. Wapass. He asserted that a material change in circumstances had occurred since the bail judge had rendered his initial decision denying him bail.

He adduced a blood spatter analysis report that he claims challenges the findings of the report produced by the Crown at the initial bail hearing. The Crown took issue with the qualifications of the individual who had prepared the new report, and asserted there was no material change in circumstances that warranted revisiting the matter. [ 15 ] In a fiat dated December 2, 2020, the bail judge concluded that the new blood spatter analysis report was admissible. As a result, he determined that it was necessary to reassess the evidence that had been presented at the initial bail hearing.

However, he again found that Mr. Wapass had not met his onus under the primary, secondary, and tertiary grounds as set out in s. 515(10) of the Criminal Code . IV. ANALYSIS [ 16 ] In order to address Mr. Wapass’s application, it is necessary to begin by considering the scope of s. 680 . That done, I will turn more directly to the merits of his application. A. What is the scope of s. 680? [ 17 ] Mr. Wapass submits that a material change in circumstances has occurred since the bail judge rendered his decision on December 2, 2020.

But, instead of making an application to the Court of Queen’s Bench to reconsider his eligibility for judicial interim release, Mr. Wapass submits that this Court should take jurisdiction over the matter pursuant to s. 680 of the Criminal Code . [ 18 ] Section 680(1) reads as follows: 680

(1) A decision made by a judge under

section 522, a decision made under subsections 524(3) to (5) with respect to an accused referred to in paragraph 524(1)(

a) or a decision made by a judge of the court of appeal under

section 320.25 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court … [ 19 ] Effectively, as relevant here, s. 680 contemplates a two-stage review process. Where an applicant seeks a review of a decision made pursuant to s. 522, the Chief Justice is required to determine whether the matter ought to be considered by a panel of the Court. If the Chief Justice concludes that the decision of the bail judge should be reviewed, a panel may affirm or vary the bail judge’s decision or,

alternatively, substitute its own decision. [20] In R v Oland, 2017 SCC 17 at para 63, [2017] 1 SCR 250 [Oland], the Supreme Court noted that “[t]here is no formalprocedure in the Code governing the chief justice’s decision to direct a panel review”. Nonetheless, the Court did provide some guidanceon how a chief justice should approach an application made pursuant to s. 680. Justice Moldaver stated as follows: [64] The test, as I see it, should be relatively straightforward in its application. It flows from the principles the panel is required toapply when conducting a review.

In short, the chief justice should consider directing a review where it is arguable that the judgecommitted material errors of fact or law in arriving at the impugned decision, or that the impugned decision was clearly unwarranted in thecircumstances. [21] However, Mr. Wapass does not assert that the bail judge committed material errors of fact or law in denying him bail. Further,there is no suggestion that the bail judge’s decision was unwarranted based on the evidence presented to him. In fact, Mr.

Wapass appearsto accept that the bail judge appropriately disposed of both applications based on the evidence that was before him. He does not suggestthat the second decision involved reviewable error on the part of the bail judge. Rather, Mr. Wapass asserts that this Court shouldreconsider his eligibility for judicial interim release solely on the basis of an alleged material change in circumstances. [22] The change of circumstances asserted by Mr. Wapass is focused on new evidence that was not considered by the bail judge ateither of the previous hearings. First, Mr.

Wapass points to evidence suggesting that blood spatter was also found on the clothing ofanother individual who was present in the home where Mr. Standingwater was found deceased. This evidence is said to call the apparentstrength of the Crown’s case into question because it suggests that this other individual could have been involved in Mr. Standingwater’sdeath or that his death might have been an accident. Second, Mr.

Wapass also points to recently disclosed notes detailing correspondencebetween the prosecutor and the individual who prepared the blood spatter analysis report that was presented by the Crown at the first bailhearing. Mr. Wapass suggests that these notes undermine some of the concerns that were raised with respect to the blood spatter analysisreport that he adduced at the second bail hearing. [23] The Crown takes the position that this Court should not entertain the application brought by Mr. Wapass.

In support of itsposition, it cites R v Patterson, 1985 ABCA 73, 19 CCC (3d) 149; R v Massan, 2012 MBCA 26, 289 CCC (3d) 285 [Massan]; and R vDempsey, 2001 BCCA 122, 153 CCC (3d) 311. The Crown submits that, while some of the case law suggests that an appellate court mayassess an asserted change of circumstances in the context of a s. 680 application, the preferred practice is to have the matter dealt with atthe superior court level.

The Crown also references the Supreme Court’s decision in Oland and says it can be interpreted as limiting thescope of a s. 680 review to situations where the bail judge is alleged to have committed material errors or rendered a decision that wasclearly unwarranted in the circumstances. [24] For his part, Mr. Wapass accepts that the Court of Queen’s Bench would have jurisdiction to hear his application. However, hesubmits that its jurisdiction is concurrent with the jurisdiction of this Court. In support of this assertion, Mr. Wapass relies on R vTuckanow, 2017 SKQB 357 [Tuckanow].

In Tuckanow, Kalmakoff J. (as he then was) concluded that a superior court and a court ofappeal have concurrent jurisdiction to hear an application challenging a detention or release order on the basis of a change incircumstances. Among other cases, Kalmakoff J. relied on R v Whyte, 2014 ONCA 268, 310 CCC (3d) 335 [Whyte], to support hisconclusion. [25] What, then, is the scope of s. 680?

To begin, I disagree with the Crown’s suggestion that Oland limits the scope of a reviewunder s. 680 to situations where the bail judge is alleged to have committed material errors or rendered a decision that was clearlyunwarranted in the circumstances. In Oland, there was no suggestion that a material change in circumstances had occurred. Rather, theCourt was concerned with the presence of a legal error and the suggestion that the accused’s detainment was clearly unwarranted: seeOland at paras 4, 65–70.

In my view, the Supreme Court simply did not address the issue raised by this case, i.e., whether a chief justicecan direct the review of a bail decision solely on the basis of new evidence or changed circumstances. [26] The weight of the jurisprudence suggests that a court of appeal has jurisdiction to consider an asserted change in circumstancesin the context of a s. 680 review.

For example, in Whyte, Tulloch J.A. stated as follows: [21] The relevant practice in Ontario can be summed up as follows: Where an applicant is detained pursuant to a charge for an offencelisted in s. 469 of the Code, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant’sgrievance. Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, theproper course is to seek review by a court of appeal under s. 680 of the Code: R. v. Daniels (1997), (ON CA), 35 O.R.(3d) 737 (C.A.), at p. 746.

Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change incircumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d)309, at para. 5; R. v. Klymchuk (2007), (ON SC), 220 C.C.C. (3d) 439 (Ont. S.C.), at pp. 447-48; R. v. Saleh (2007), (ON SC), 252 C.C.C. (3d) 521 (Ont. S.C.).

This second avenue reflects the “considerable common sense in returningto the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new orchanged information on the issue of interim release”: R. v. Boyle, (ON CA), [2006] O.J. No. 5094 (C.A.), at para. 3. [22] The availability of this second procedure does not foreclose consideration of a change in circumstances on a s. 680 application,however: see Daniels, at p. 747; Boyle, at paras. 3-4.

In other words, the Superior Court of Justice and the Court of Appeal haveconcurrent jurisdiction to decide whether there has been a material change of circumstances warranting judicial interim release. [23] In attributing exclusive jurisdiction to this court and dismissing the applicant’s bail application for lack of jurisdiction, O’Marra J.erred.

He stated that “if there is to be a renewed application for bail based on change of circumstance, it will be reviewed by the OntarioCourt of Appeal.” As explained above, this misstates the law: both the Superior Court and Court of Appeal have jurisdiction to consider anapplication based on change in circumstance. [27] A similar conclusion was reached by the Court of Appeal of Alberta in R v Kuol, 2013 ABCA 380, 561 AR 332 [Kuol], wherethe Court stated as follows:

[10] We favour the weight of the authorities from Ontario, Alberta, Nova Scotia and Manitoba referred to above and find that we, as aCourt of Appeal, do have jurisdiction pursuant to s 680 to consider applications for release of detention based solely on a change ofcircumstance. However, we also think it is best that such applications ordinarily be returned to the initial court for reconsideration. Indeed,we agree with the Ontario Court of Appeal in Daniels that although not a hard and fast rule, it is usually preferable for the judge whoheard the initial application to also hear the subsequent application.

See also: R v Ledesma, 2019 ABCA 60, 82 Alta LR (6th) 20 [Ledesma], where the Court of Appeal of Alberta confirmed that it and theCourt of Queen’s Bench “enjoy concurrent jurisdiction to decide whether there has been a change in circumstances justifying judicialinterim release” (at para 21). [28] In Massan at paragraph 37, Monnin J.A. of the Court of Appeal of Manitoba reviewed the authorities and came to the samebottom-line conclusion. He summarized the case law by saying this:

a) There is jurisdiction for an appellate court under s. 680 to review an order under s. 522 where one or even the only ground ofappeal is a material change of circumstances and the correctness of the original order is not being challenged. …

c) Any request for the appellate court to exercise its discretion to review the order of the bail court based upon a change incircumstances must be supported by evidence presented before the appellate court according to the usual rules. [29] Justice Monnin’s reasoning in Massan relied heavily on the decision of Cromwell J.A. (as he then was) in R v Hardiman, 2003NSCA 17, 172 CCC (3d) 211 [Hardiman].

In Hardiman, Cromwell J.A. noted as follows: [29] There is authority in Nova Scotia, Ontario, Alberta and Manitoba for the view that a s. 680 review, while fundamentally in thenature of an appeal, is nonetheless broad enough to permit review where the original order has been overtaken by material change ofcircumstance: R. v. Benson (1992), (NS CA), 73 C.C.C. (3d) 303 (N.S.C.

A) at 307-308; R. v. Daniels, supra, at para.29; R. v. D’Agostino, supra, at para 11; R. v. Paupanekis, [1996] M.J. No. 9 (Q.L.) (Man. C.A. Chambers). There are also statements inthe cases to the effect that the Court on a s. 680 review has a wide discretion to make its own assessment of what the proper order shouldbe and that there is no onus on the accused to demonstrate error on the part of the judge of the first instance: R. v. Quinton (1993), (QC CA), 24 C.R. (4th) 242; A.Q. No 1661 (Q.L.) (Qué C.A.) at paras. 12 and 13; R. v. Fothergill (1982), (ON CA), 27 C.R. (3d) 191 (Ont C.A.) at 192.

In my respectful view, the authorities to which I referred in this paragraph are soundlybased on the text of s. 680 read in context and in light of the purpose of the legislative scheme for bail and the constitutional right toreasonable bail. [30] Having considered the relevant case law, I am satisfied that s. 680 of the Criminal Code confers jurisdiction on this Court toconsider an application for judicial interim release based solely on an asserted change of circumstances. However, that conclusion is notdeterminative of Mr. Wapass’s application.

I must also consider whether the change in circumstances that he raises ought to be referred toa panel of this Court for review. I turn now to that question. B. Should a review be directed? [31] While the Court of Queen’s Bench and the Court of Appeal have concurrent jurisdiction to determine whether there has been amaterial change of circumstances warranting judicial interim release, the case law reveals a clear preference that the matter be remitted tothe Court of Queen’s Bench rather than be entertained by this Court.

For instance, in Ledesma, the Court of Appeal of Alberta stated asfollows: [22] As set out in Kuol, although not strictly mandated by the legislation, it is the preferable practice than an application based on achange of circumstances be heard by the original bail court.

Patterson at para 5 sets out the reasons for this procedural preference: “Itseems quite absurd that the parties should be required to appear before the Chief Justice and then a quorum of this Court in a case wherethe original order was rightly made but new circumstances have arisen that may warrant a variation of it.” (See also R v Seti-Mayinga,[2001] OJ No 6335 at para 28, 54 WCB (2d) 121 (Sup Ct) [Seti-Mayinga] at para 28, wherein the court said that it does not makeadministrative sense to funnel bail order variations necessitated by changed circumstances through appellate courts). [32] Whyte, quoted above, reveals a similar procedural preference by the courts in Ontario.

Importantly, the Court in Whyte notedthat “[w]here an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, thenormal course is to bring a second bail application in Superior Court” (at para 21).

In Massan, Monnin J.A. cited “the concept of judicialefficiency” in support of the practice of having the superior court judge that granted or refused bail in the first instance consider whether amaterial change of circumstances has occurred (at para 37). [33] Accordingly, while I accept that this Court does have jurisdiction to review a bail decision based on an asserted change incircumstances, I am of the view that, absent exceptional circumstances, I should decline to initiate a review pursuant to s. 680 where thatis the sole ground for the requested review. [34] Mr.

Wapass contends that this Court should assume jurisdiction over his application for judicial interim release in order toprotect due process and fairness. He is concerned that, if I decline to order a review under s. 680, he will be required to come before thebail judge for a third time. He suggests that a new perspective on the matter is required. I disagree for two main reasons. [35] First, s. 680 is self-evidently appellate in character. Following the path suggested by Mr. Wapass would, in the ongoing courseof these sorts of cases, tend to delay and complicate bail proceedings.

I endorse the following analysis set out by the Court in Ledesma: [24] First and foremost, the role of this Court is as a reviewing court, not a court of first instance. Any other view would effectivelydeprive the parties of a right of appeal in any case where a varying order is made on the basis of new circumstances. Further, retuning tothe Court of Queen’s Bench would create the evidentiary record for further review, if appropriate, by the Court of Appeal. Lastly,

Parliament would not have intended to complicate or delay the opportunity to respond appropriately to changed circumstances. The object and purpose of the bail provisions of the Criminal Code is to provide a quick and flexible system to secure the liberty of the accused. [ 36 ] Second, I am unable to agree with the suggestion that a referral to the Court pursuant to s. 680 is necessary to protect due process and fairness. Judges must be counted on to assess matters dispassionately.

While it may be somewhat atypical for a judge to be called on for a third time to consider whether an accused should be released from custody pending their trial, there is nothing to suggest that the bail judge in this case would do anything other than objectively assess the significance of the change in circumstances brought forward by Mr. Wapass. On this front, I note that Mr. Wapass has not asserted that the bail judge committed a material error or misapprehended the evidence that was before him on either the initial bail application or when adjudicating the second application.

I see no reason why the bail judge would be incapable of acting fairly and properly discharging his judicial responsibilities if it should happen that this matter were to come before him again. [ 37 ] In short, while the Court has concurrent jurisdiction to determine whether there has been a material change of circumstances warranting judicial interim release, there are no exceptional in the circumstances of this case that suggest it is appropriate to deal with Mr. Wapass’s situation pursuant to s. 680. V. CONCLUSION [ 38 ] For the foregoing reasons, I decline to direct that this matter be reviewed by the Court.

Mr. Wapass is, of course, free to bring another application for judicial interim release in the Court of Queen’s Bench. “Richards C.J.S.” Richards C.J.S.