



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rootenberg, 2018 ONCA 335

DATE: 20180404

DOCKET: M48985

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Shaun Rootenberg

Applicant

Shaun Rootenberg, in person

Tracy Kozlowski, for the respondent

Heard and released orally: March 29, 2018

Application under s. 520(1) of the
Criminal
    Code
to review the detention order made by Justice Michael R. Dambrot of
    the Superior Court of Justice under ss. 521(1) and (8)(e) of the
Criminal
    Code
on February 26, 2018

ENDORSEMENT


[1]

Shaun Rootenberg, whom I will describe as the applicant, seeks an order
    under s.520(7) of the
Criminal Code
vacating a detention order made
    February 26, 2018 pursuant to ss. 521(1) and (8)(e) of the
Criminal Code
.
    The detention order was made by a judge of the Superior Court of Justice on
    application by the Crown to vacate a release order made at the conclusion of a
    preliminary inquiry by the committing justice.

The Background

[2]

On June, 6 2017 the applicant was arrested on four counts of each of
    fraud over $5000, possession of the proceeds of crime and money laundering. He surrendered
    into police custody on that day.

[3]

On June 8, 2017, at the conclusion of a judicial interim release
    hearing, a justice of the peace ordered the applicant detained in custody on
    the primary and secondary grounds.

[4]

About one month later, on July 10, 2017, the applicant brought a bail
    review application before a judge of the Superior Court of Justice. The
    application was dismissed.

[5]

On September 1, 2017 a second bail review application was brought before
    a different judge of the Superior Court of Justice. That application also
    failed.

[6]

Prior to or at some point during the conduct of the preliminary inquiry held
    from December 20-22, 2017 the Crown withdrew the counts of possession of the
    proceeds of crime and laundering the proceeds of crime. The preliminary inquiry
    proceeded as scheduled on the remaining four counts of fraud over $5000.

[7]

At the conclusion of the preliminary inquiry, the applicant, who was
    committed for trial on all four counts of fraud,  applied to the presiding
    justice to review the detention order under s.523(2)(b) of the
Criminal
    Code
. On January 18, 2018 the committing justice vacated the detention
    order and directed the applicants release on a recognizance with sureties and
    subject to conditions.

[8]

On January 29, 2018 the applicant appeared in the Superior Court of
    Justice. He was then served with an application by the Crown to review the
    release order made by the committing justice. That application was heard by a
    third judge of the Superior Court of Justice almost a month later, on February
    26, 2018. The application was allowed, the release order vacated and the
    applicant detained in custody.

[9]

The applicant is self-represented.

The Application

[10]

The
    applicant claims that special circumstances exist that warrant a judge of this
    court, exercising the jurisdiction conferred by s. 520(1) of the
Criminal Code
,
    reviewing the order of the judge of the Superior Court of Justice vacating the
    release order made by the committing justice and substituting a detention
    order.

[11]

As
    I apprehend his submissions, the applicant contends, that to allow another judge
    of the Superior Court of Justice to review the bail order (in this case, a
    detention order) made by another judge of the same court is not in keeping
    with the hierarchical scheme of the bail system in Canada.

[12]

The
    applicant also points to what he says are several errors made by the judge
    conducting the review of the release order put in place by the committing
    justice. In particular, he finds fault in the reviewing judges determination
    that neither the withdrawal of the proceeds and money laundering counts nor any
    other factor amounted to material change in circumstances sufficient to
    authorize the committing justice to set aside the detention order and
    substitute an order for release.

Discussion

[13]

To
    take first the submission that to allow another judge of the Superior Court of
    Justice to review the bail (detention) order of a fellow judge of the same
    court is not in keeping with the hierarchical scheme of the bail system in
    Canada.

[14]

This
    argument founders on several grounds.

[15]

First,
    the same argument was advanced and rejected in
R. v. Durrani
, 2008
    ONCA 856, a decision of MacPherson J.A. sitting In chambers. As he points out,
    this argument not only finds no support in the wording of s. 520 and I would
    add, s. 521, but is contradicted by it. These review provisions plainly
    contemplate more than a single opportunity to bring a bail review application
    on both sides. Further, it logically follows, they contemplate that different
    judges of the superior court will sometimes hear them: see
Durrani
, at
    para. 29.

[16]

Second,
    the fact that the proposed review is based at least in part on an alleged error
    of law by a judge of the Superior Court of Justice does not, on its own,
    qualify as a special circumstance justifying a judge of this court to entertain
    a review. Nor does an allegation of error stamp the decision as only capable of
    review by this court. Judges of the Superior Court of Justice will fulfill
    their responsibilities by finding judicial error, if it exists and falls within
    their review jurisdiction, by exercising an independent discretion if the
    circumstances call for it. At one point in his oral submissions, Mr. Rootenberg
    appeared to suggest, an institutional bias in the Superior Court of Justice. It
    appears funded by nothing more than a disagreement with the conclusions reached
    by various judges of that court, a ground that simply cannot support such a
    claim.

[17]

Third,
    implicit in the argument that a judge of this court should exercise
    jurisdiction because of the hierarchical structure of the courts of this
    province seems to be a perception that a judge of the appellate court occupies
    a higher rung in the judicial hierarchy than a judge of the provincial superior
    trial court when it comes to a review of release or detention orders or
    decisions. This perception is not grounded in reality.

[18]

Whatever
    may be their patent or their jurisdiction elsewhere under the
Criminal Code,
the review authority established by ss. 520 and 521 of the
Criminal Code
settles upon a judge.  A judge is defined in s. 493 of the
Criminal
    Code
in this province as a judge of the superior court of criminal
    jurisdiction of the province. And in this province, s. 2 of the
Criminal
    Code
defines superior court of criminal jurisdiction as the Court of
    Appeal or the Superior Court of Justice. It necessarily follows that judges of
    each court have the same review jurisdiction. Judges of the Court of Appeal
    have no more or different review jurisdiction than judges of the Superior Court
    of Justice. And judges of the Superior Court of Justice have no less review
    jurisdiction than judges of the Court of Appeal. All are equal for these
    purposes. Some are not more equal than others.

[19]

The
    decision in
Durrani
also makes the point that what constitutes
    special circumstances is to be defined quite narrowly. While I do not
    consider the examples given in
Durrani
were intended to be or should
    be considered to be exhaustive, I am not satisfied that there is anything in
    this case that would so qualify. In particular, I have in mind the assertion of
    legal error as a gateway to the special circumstances exception to permit a
    judge of this court to conduct a review. That principle was rejected in
Durrani
as well as the recent decision in
R. v. George
, 2018 ONCA 318, at
    para. 27 and by the Manitoba Court of Appeal in
R. v. Zenelli,
2003 MBCA
    50, at para. 9. It assumes that only judges from an appellate court can correct
    errors by judges of the superior trial court. Mere statement of that
    proposition refutes it.

[20]

Mr.
    Rootenberg also addressed the merits of the application. He asserted the judge,
    whose decision is under review, committed multiple errors in the conduct of the
    hearing and the result he reached. He denied an adjournment. He failed to
    consider the committing judges reason as a whole. He erred in considering that
    withdrawal of counts of money laundering and possession of proceeds of crime
    did not amount to a material change in circumstances, to name but a few.

[21]

Since
    I have not been persuaded that special circumstances warrant exercising my
    coordinate jurisdiction, I do not reach these issues. Suffice it to say, that if
    I did, the result would be no different.

Conclusion

[22]

The
    application is dismissed.

David Watt J.A.


