R. v. Duncan

2015 BCSC 1387 R. v. Duncan IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Duncan, 2015 BCSC 1387 Date: 20150717 Docket: 36893-5 Registry: Prince George Regina v. Wesley Dennis Duncan, James David Junior Charlie, Jesse Darren Bird and Teresa Marie Charlie Corrected Judgment: The front page of the judgment was corrected on May 1, 2024. Before: The Honourable Madam Justice Duncan (via teleconference) Oral Reasons for Judgment on Jurisdictional Issue Re: s. 522(4) of the Criminal Code Counsel for Crown: R. Fernyhough Counsel for Accused Teresa Charlie: R.J. Climie (appearing via teleconference) Place and Date of Trial/Hearing: Prince George, B.C. June 23, 2015 Place and Date of Judgment: Prince George, B.C. July 17, 2015 [1] THE COURT: The accused, Teresa Charlie, is charged with accessory after the fact to murder and obstruction of justice. There are three other co-accused on the indictment, all of whom are charged with the substantive offence of murder. [2] The accused was detained by Mr. Justice Funt on February 28, 2014. Defence counsel seeks a second application for judicial interim release based on a material change in circumstances. [3] This application raises a threshold jurisdictional question concerning application for judicial interim release under s. 522 of the Criminal Code, R.S.C., 1985, c. C-46 based on a material change in circumstances: Is an accused bound to accept the correctness of a previous judgment ordering detention before making a second or subsequent application for release based on a material change in circumstances, or can the accused reapply for bail based on a material change in circumstances and have a hearing de novo without reference to the previous judgment? The Legislative Context [4] For bail purposes, a charge of accessory after the fact to murder falls under s. 469 of the Criminal Code: 469. Every court of criminal jurisdiction has jurisdiction to try an indictable offence other than . . . (b) the offence of being an accessory after the fact to high treason or treason or murder. [5] The jurisdiction to grant judicial interim release to a person charged with a s. 469 offence is in s. 522 of the Criminal Code. The relevant portions of that section are as follows: 522. (1) Where an accused is charged with an offence listed in section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial. (2) Where an 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 in which the accused is charged 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). ... (4) An order made under this section is not subject to review, except as provided in section 680. ... (6) Where an accused is charged with an offence mentioned in section 469 and with any other offence, a judge acting under this section may apply the provisions of this Part respecting judicial interim release to that other offence. [6] An accused may also re-apply for bail before the trial judge under s. 523(2). The authorities support the view that the trial judge is the judge before whom pleas are entered and who hears the evidence. I understand the trial of this matter has not commenced yet, and the accused before me does not have resort to this avenue to re-apply for bail. [7] Finally, s. 680 provides: 680. (1) A decision made by a judge under section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a) vary the decision; or (b) substitute such other decision as, in its opinion, should have been made. (2) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court. (3) A decision as varied or substituted under this section shall have effect and may be enforced in all respects as though it were the decision originally made. [8] The accused was arrested on these charges on November 15, 2013. She applied for judicial interim release before Funt J. on February 28, 2014. Funt J. was not satisfied she could show cause for her release and ordered her detained on all three grounds under s. 515(10). They are commonly referred to as the primary, secondary, and tertiary grounds. [9] As of the date I heard submissions in this matter, the accused had been in custody for 19 months. At an enhanced rate of credit of one and a half days per day served, she has served the equivalent of 28.5 months. This matter will not likely go to trial until later in 2016. Pre-trial applications will commence in October of this year with further appearances in February and May of next year. The trial itself is estimated to last approximately 12 weeks. [10] Counsel for the accused, Mr. Climie, wants to apply a second time for judicial interim release based on a material change in circumstances. He submits that the accused now has a completely different bail proposal than the one before Funt J. She has been in custody so long that it very nearly constitutes time served for the offences charged and there have been two changes in the law since she was detained. [11] The first change arises from the Supreme Court of Canada decision in R. v. Hart, 2014 SCC 52, where it was determined the evidence obtained by undercover operations known as Mr. Big schemes is no longer presumptively admissible. Defence counsel argues this will weaken what the Crown characterized before Funt J. as a strong Crown case. [12] Second, the law concerning the tertiary ground of judicial interim release under s. 515 has changed by virtue of R. v. St-Cloud, 2015 SCC 27. While that decision may arguably make it less onerous for the Crown to successfully argue for the accused to be detained under the tertiary ground, defence counsel submits that insofar as that ground relies on the strength of the Crown case, the argument for detention under the tertiary ground is less compelling now than it was before Funt J. [13] Mr. Fernyhough for the Crown takes the position that what Mr. Climie is attempting to do is review the decision of Funt J. in the guise of a second application under s. 522. The Crown submits s. 522(4) precludes the application Mr. Climie seeks to make. The proper route, he maintains, is an application under s. 680 for a review by leave of the Chief Justice to have the matter heard by a division of the Court of Appeal. [14] Mr. Fernyhough submits the only circumstances where this court would have jurisdiction to hear a second application for bail under s. 522 is where there is a material change in circumstances and where the original order is conceded to have been properly made at the time it was made. This would not be a hearing de novo, in his submission, but rather an argument that the new materials tip the balance in favour of release, accepting the first detention order was correct. [15] Counsel referred me to a number of authorities in support of their respective positions. There was a great deal of overlap in the authorities cited with both counsel relying on the same case but placing different emphasis on certain portions. I will review the salient authorities in a largely chronological fashion. [16] In R. v. Patterson, 1985 ABCA 73 (CanLII) [1985] 4 W.W.R. 357, the accused was denied judicial interim release before the preliminary hearing took place. At the preliminary hearing, the evidence raised a serious issue about self-defence. The accused applied to the Court of Appeal for judicial interim release. Neither counsel took the position that the chambers judge erred based on the circumstances known at the time, and the Crown conceded release was appropriate. Kerans J. for the Court said: [4] A practice question, however, remains. Why appeal a valid order? Why not re-apply? [5] S. 608.1 C.C.C. [now s. 680] allows for appeals to the Court of Appeal from any order granting or denying judicial interim release provided that leave of the Chief Justice of Alberta is obtained. It seems absurd that the parties should be required to appear before the Chief Justice and then a quorum of this Court in a case where the original order was rightly made but new circumstances have arisen that may warrant a variation of it. [6] The purpose of this judgment is to offer some guide to future practice in such circumstances. [7] The problem raised by the Crown is that s. 457.7(2.2) C.C.C. [now s. 522(4)] seems to forbid any review of such an order except by way of appeal because it provides: An order made under this section is not subject to review, except as provided in s. 608.1. [8] Its correct meaning is found, however, by reading s. 457.8 C.C.C. with the object of the Act in mind. In my view, s. 457.7(2.2) forbids any review other than by way of appeal in any case where error is alleged, but it does not forbid a new hearing in a case where no error is alleged and new circumstances are relied upon. [17] I will return to some of those comments later in my reasons. [18] Next, R. v. Daniels, 35 O.R. (3d) 737 (C.A.), dealt with successive applications for bail pending appeal under s. 679 of the Code. While that section is not worded identically to s. 522, the issue is a similar one. The accused's initial application for bail pending appeal under s. 679 was denied because his grounds of appeal were not strong. The accused brought a second application under s. 679 accepting the correctness of the first decision but elaborating on and adding to his grounds of appeal. [19] The Crown argued there was no jurisdiction to grant bail under s. 679 where bail had previously been denied. The remedy was to apply for a review under s. 680 based on a material change in circumstances as s. 680 contained broad remedial powers. [20] Doherty J.A. for the Court said, at 748: In my opinion, the fact that s. 680 creates an appellate jurisdiction which can be expanded to consider changes in circumstances does not assist in determining whether s. 679 contemplates a second bail application based on changed circumstances. Section 680 clearly provides the only means by which the correctness of a decision made under s. 679 can be challenged. It does not foreclose a second application under s. 679 where the correctness of the first decision is conceded, but it [is] alleged that the circumstances have changed. [21] The test applied under s. 680 has variously been stated by appellate courts, but the most frequently cited formulation comes from R. v. Wu (1998), 117 B.C.A.C. 305, where Cumming J.A. for the Court said: [6] A review under s. 680(1) of the Criminal Code is in the nature of an appeal on the record and not a hearing de novo. While the reviewing court exercises an independent discretion and may substitute its own opinion for that of the single judge under review, it must base its review on facts found by the single judge's evaluation of the evidence. It is not necessary that a reviewing court, before intervening, come to a conclusion that the decision of the single judge under review was unreasonable or that an error in principle was committed. See R. v. D.S.H. (1991), 2 B.C.A.C. 309. [22] In R. v. Turner, 1999, 133 C.C.C. (3d) 180 (N.L.C.A.), the accused applied for a s. 680 review of the order of a chambers judge in the Trial Division detaining the accused based on significant changes in circumstance. Chief Justice Wells observed: [10] The issue left with the court, and on which the parties have asked the court to provide direction, is: where, pursuant to s. 522 of the Criminal Code, judicial interim release has been denied to a person accused of murder, and the consequent detention order is agreed by the parties to have been proper in law at the time, should a subsequent application, based solely on a change in circumstances, be heard by way of review by the court of appeal acting pursuant to s. 680 or by a single judge acting pursuant to s. 522 or s. 523 of the Criminal Code? . . . [23] Wells C.J. considered Patterson and Daniels and said: [23] In my view the comments of Doherty, J.A., respecting the nature of the jurisdiction of the court of appeal under s. 680, in dealing with circumstances where prior release or detention orders have been made under s. 679, apply equally to the jurisdiction of the court of appeal in dealing with circumstances where orders for release or detention have previously been made under s. 522. With great respect to those who have held otherwise, I share the view expressed by Kerans, J.A., in Patterson, as to the correct meaning of s-s 522(4) namely: it "forbids review other than by way of appeal in any case where error is alleged, but it does not forbid a new hearing in a case where no error is alleged and new circumstances are relied upon". Daniels does not therefore support the applicant's proposition, as his counsel contends. [24] In R. v. Saleh, [2007] O.J. No. 1375, 2007 CanLII 11727 (Ont. S.C.J.), Power J. of the Ontario Superior Court of Justice initially refused the accused's bail on a charge of first degree murder. After the preliminary hearing, the accused applied for bail again before Power J. based on a material change in circumstances concerning the strength of the Crown's case and the accused's ability to offer additional surety. The Crown argued that s. 522(4) applied and that the Court of Appeal had exclusive jurisdiction to hear the application. Power J. relied on Daniels, Turner, and Patterson, as well as R. v. Dempsey, 2001 BCCA 122, which I shall turn to shortly, and said: 39 I conclude from my reading of the relevant authorities that the Court of Appeal, under s. 680 of the Code, should exercise its jurisdiction to vary a bail decision where there has been a change in circumstances only in the context of exercising its appeal function. Accordingly, where there is no challenge to the earlier bail decision, the jurisdiction to deal with an application based solely on the alleged change in circumstances lies with a judge of this Court and, in particular, preferably with the judge that made the earlier decision. Essentially, the matter to be considered by the court in such circumstances is a matter that requires a de novo consideration of the request for release, i.e., where the sole ground for the application is an alleged change in circumstances. [25] In Dempsey, the accused was charged with first degree murder and detained after the preliminary inquiry. The trial ended in a mistrial. The accused appealed from the order refusing him release on the basis of a material change in circumstances. The Crown argued the Court of Appeal did not have jurisdiction under s. 680 because it was not a true review but a reconsideration of the question of whether there should be a judicial release on the basis of the new circumstances which were revealed by the aborted trial. [26] Lambert J.A. considered Turner, Daniels, and Patterson and said that fresh evidence of new circumstances adduced at trial did not deprive the Court of Appeal of jurisdiction on a s. 680 review, but what the appellant sought was not a true review: [18] It is instead in the nature of a completely new application for interim release based on entirely new materials and in circumstances where the original order was conceded to have been properly made and correctly made, at the time it was made. [27] Saunders J.A., in concurring reasons, said at para. 21: The fact that there is no challenge to the decision of the supreme court justice, other than on the basis of the changed circumstances, and considering the appellate nature of the review that is contemplated in s.680 - I do not see this application as falling within that jurisdiction. [28] The Court of Appeal dismissed the application. [29] I quote from Saunders J.A.'s separate concurring reasons because her use of the phrase "no challenge to the decision of the supreme court justice" in apparent contradistinction to Lambert J.A.'s use of the phrase "in circumstances where the original order was conceded to have been properly made and correctly made." These two phrases illustrate an apparent divergence as to the prerequisites for a subsequent application under s. 522. It also captures the divergence between the Crown and defence in this case: Mr. Fernyhough maintains the defence has to concede the original detention order was correctly made, and Mr. Climie says he does not have to concede anything in applying for the application de novo he seeks based on a material change in circumstances. [30] When one looks at the authorities both parties rely on, this "same difference" in phraseology is apparent. In Patterson, Kerans J.A. opined that s. 522(4) "does not forbid a new hearing in a case where no error is alleged and new circumstances are relied upon." [31] In Daniels, Doherty J.A. said the second application under s. 679 does not foreclose "where the correctness of the first decision is conceded," but it is alleged the circumstances have changed. [32] In Turner, Wells C.J. reviewed both Patterson and Daniels and agreed with the view expressed by Kerans J.A. [33] Finally, in Saleh, Power J. found that where there is no challenge to the earlier decision, an accused may apply for bail under s. 522 based on an alleged change in circumstances. [34] The authorities also establish that s. 680 reviews are a direct challenge to the decision of the judge to detain or release an accused. While a court hearing a s. 680 review may in addition receive evidence about a change in circumstances, the jurisdiction to hear the review stems from the challenge to the correctness of its decision to detain or release, not from changed circumstances. Given Mr. Climie's statement that he has no intention of challenging the decision of Funt J. to detain the accused, the s. 680 review is not open to him. [35] In my view, the jurisprudence supports the conclusion that it is permissible to make applications for judicial interim release based on a material change in circumstances under s. 522 where the correctness of the earlier decision is either conceded or not challenged. [36] As to whether the subsequent application is a hearing de novo or a hearing to determine if the new material tips the balance in favour of release in light of the findings at the first hearing, as Mr. Fernyhough maintains, the authorities support Mr. Climie's position that it is a hearing de novo. A hearing to determine only if the new material tips the balance in favour of release in light of the findings at the first hearing carries with it the potential of having the matter stray into a review of the original decision, in my view. [37] Finally, the practice in Ontario seems to be to schedule a subsequent hearing before the same judge per the comments of Power J. in R. v. Saleh. That makes good sense in the abstract because it ensures the process does not devolve into a review of the original reasons for detention, but it rests on a different geographical approach to the allocation and scheduling of judicial resources. Judges in Ontario, as a general rule, sit in regions. Judges in British Columbia sit province-wide. While it may be preferable for Funt J. to hear the subsequent application, I make no direction in that regard. [38] Counsel, those are my reasons. "Duncan J." ______________________________________________ The Honourable Madam Justice Duncan