



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. George, 2018 ONCA 314

DATE: 20180326

DOCKET: M48929

Brown J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Daniel George

Appellant (Applicant)

Anita Nathan, for the appellant

Stephen Oakey, for the respondent

Heard: March 21, 2018

ENDORSEMENT

I.

OVERVIEW

[1]

The applicant, Daniel George, applies under s. 520 of the
Criminal
    Code
to review the terms of his judicial interim release before trial
    granted by a judge of the Superior Court of Justice on October 20, 2017.

[2]

Section 520(1) of the
Criminal Code
provides:

If a justice  makes an order under subsection 515(2), (5),
    (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b),
    the accused may, at any time before the trial of the charge, apply to a judge
    for a review of the order.

[3]

There is concurrent jurisdiction in the Superior Court of Justice and
    this court to conduct a bail review under s. 520:
R. v. Durrani
, 2008
    ONCA 856, 94 O.R. (3d) 359 (In Chambers), at para. 16. This results from the
    definitions of superior court of criminal jurisdiction and judge in ss.  2
    and 493 of the
Criminal Code
including both judges of the Superior
    Court of Justice of Ontario and the Ontario Court of Appeal. See also Gary T.
    Trotter,
The Law of Bail in Canada
,
    loose-leaf (2017-Rel. 2), 3d ed. (Toronto: Carswell, 2010), at p. 8-3.

[4]

Notwithstanding that concurrent jurisdiction, absent special
    circumstances, courts of appeal should deal with bail pending appeal and
    superior courts should deal with bail prior to and during a trial:
Durrani
,
    at para. 34.

[5]

The applicant has not demonstrated special circumstances. I therefore
    dismiss his application.


II.

HISTORY OF THE PROCEEDING

[6]

On March 26, 2017 the applicant (and his co-accused) were charged with
    three counts of possession of a controlled substance  cocaine (254.66 gm),
    crack cocaine (21.18 gm), and heroin (3.35 gm)  for the purposes of
    trafficking contrary to s. 5 of the
Controlled Drug and Substances Act
,
S.C. 1996, c. 19
.

[7]

On July 20, 2017 the applicant applied for bail before Justice of the
    Peace Wong. Because the applicant was charged with drug trafficking, the
    presumption in favour of pre-trial release did not apply and he bore the burden
    of justifying his release:
Criminal Code
, s. 515(6)(d).

[8]

The Justice of the Peace detained the applicant. She ruled the strength
    of the Crowns case and the applicants record raised substantial secondary
    ground concerns that if released on bail, the applicant would most likely
    return to the drug trade. Justice of the Peace Wong concluded that the proposed
    plan of release, including the surety proposed, was insufficient to address
    those concerns.

[9]

On August 17, 2017 the applicant brought a bail review application
    before Justice B. OMarra of the Superior Court of Justice. OMarra J. dismissed
    the application. The applicant did not dispute that any form of release would
    require a surety and terms. O'Marra J. found the criminal record of the surety,
    and the incremental disclosure of the true extent of his record, rendered the
    surety unqualified to act. He concluded the proposed plan of release did not
    address the secondary ground concerns and dismissed the application.

[10]

On
    October 20, 2017 the applicant brought a further s. 520 application before
    Justice Clark of the Superior Court of Justice (the Review Judge). The
    applicant proposed a new plan of release, which included a form of house arrest.
    The Crown had consented to the plan, which involved two new sureties. The
    applicant proposed residing with one of the sureties.

[11]

The
    Review Judge expressed several concerns about the plan, in particular that: (i)
    the employment of the surety with whom the applicant proposed to live would
    leave him on his own eight to twelve hours each working day
;
(ii) the applicants history clearly showed
    he had been a drug dealer for some time
; and
(iii) he had breached probation and recognizance orders
.

[12]

The
    Review Judge, with some reluctance, agreed to release the applicant. However,
    he added terms of release not contained in the proposed plan of release: (i) a
    bi-weekly reporting requirement;
and
(ii)
    prohibitions on possessing a cellphone and associating with any person with a
    criminal record unless a member of his immediate family.

[13]

The
    jointly proposed plan of release would have required Mr. George to remain in
    his residence at all times, except: (i) while in the direct and continuous
    presence of a surety; (ii) while going directly to and from, and while at,
    work; (iii) while going directly to and from court; or (iv) during a medical
    emergency.
However, the
Review Judge
    refused to include a term that the applicant could travel to and from and
    remain at a place of work unaccompanied by a surety. That decision was based
    upon the state of the record before him. Nevertheless, the Review Judge indicated
    he would be open to reconsidering the issue with better evidence: [The
    applicant] is going to have to get a job and come to this court for a bail
    review.

[14]

In
    granting the applicant release from detention on terms, the Review Judge
    stated:

Mr. George, I am impressed by your sureties. They seem like
    decent hard-working upright people, and they are the only reason you are getting
    out of jail today. You have a dismal criminal record, and you appear to me to
    be nothing more than a drug dealer. And I would not let you out, but for the
    fact that you have good sureties, and because both sides are consenting here.
    Other than that, you can stay exactly where you are pending trial. I do not see
    the case against you as being all that weak. In fact, quite the opposite, I see
    it as being quite strong, but I am not the trial judge, so that is fine. It is
    with some misgiving that I am going to let you out, but listen to me now when I
    tell you, if there is one breach, any sort of breach, and there is not going to
    be any more bail. You are going to sit in jail until your trial. If that breach
    be discovered, and you be arrested, you will not be getting another bail.

III.

THE PRESENT APPLICATION

[15]

The
    applicant applies for a review of that order under s. 520 of the
Criminal
    Code
. He has filed evidence from himself and his sureties that certain terms
    of the house arrest are too onerous. He has also filed updated evidence about
    his employment prospects. A March 5, 2018 letter from a fitness centre confirms
    the applicant may continue his training there as a volunteer personal trainer.
    Upon completion of that training and certification, the fitness centre will
    offer the applicant full-time employment.

[16]

The
    applicant asks this court to vary the terms of house arrest to
accord largely with
those jointly proposed
    before the Review Judge.
[1]

[17]

The
    respondent is prepared to consent to the substance of the variation order
    sought by the applicant should the applicant apply to the Superior Court of
    Justice under s. 520. However, the respondent submits this court should decline
    to exercise its jurisdiction under s. 520 because no special circumstances
    exist.


IV.

ANALYSIS

[18]

The
message in
Durrani
was simple and
    clear: courts of appeal should deal with bail pending appeal and superior
    courts should deal with bail prior to and during a trial. Any departure from
    that clear division of labour requires an applicant to demonstrate special
    circumstances that would justify an appellate court exercising its concurrent
    jurisdiction under s. 520 of the
Criminal Code
.

[19]

As
    MacPherson J.A. stated in
Durrani
,
at
    para. 22,
what constitutes special circumstances has been defined quite
    narrowly. He went on to describe examples of special circumstances found in
    the case-law: (i) where there has been a substantial period of delay due to the
    absence of a transcript from the bail review, the superior court judge refused
    to proceed without the transcript, and it is essential and urgent that the
    matter be dealt with; (ii) where no superior court judge is readily available;
    and (iii) where two superior court judges on two bail applications applied
    differing interpretations of s. 515 of the
Criminal Co
de and the case
    law.

[20]

None
    of those special circumstances exist in this case.

[21]

Instead,
    the applicant asks this court to exercise its concurrent jurisdiction for other
    reasons. He argues the Review Judge committed four legal errors that merit
    correction by this court: (i) he rejected jointly proposed conditions of
    release; (ii) he failed to provide sufficient reasons for rejecting the jointly
    proposed release conditions; (iii) he failed to impose the least restrictive
    conditions necessary in all of the circumstances; and (iv) he imposed
    conditions unrelated to the secondary grounds of detention, which was the
    ground of concern raised.

[22]

The
    applicant submits this court should exercise its jurisdiction in order to give
    direction on when a review judge may reject a joint submission. The applicant
    urges this court to apply the public interest test in
R. v. Anthony-Cook
,
    2016 SCC 43, [2016] 2 S.C.R. 204, regarding joint submissions on sentence to
    bail review hearings under s. 520. If that test is applied, the applicant
    contends the terms of release jointly proposed to the Review Judge ought to
    have been accepted.

[23]

I
    am not persuaded by the applicants submission.

[24]

First,
    it is far from clear a need exists for this court to clarify when a review
    judge may depart from a jointly proposed release plan. The Supreme Court of
    Canada recently considered the issue. In
R. v. Antic
, 2017 SCC 27,
    [2017] 1 S.C.R. 509, the court stated, at para. 68:

Of course, it often happens that the Crown and the accused
    negotiate a plan of release and present it on consent. Consent release is an
    efficient method of achieving the release of an accused, and the principles and
    guidelines outlined above do not apply strictly to consent release plans.
Although
    a justice or a judge should not routinely second-guess joint proposals by
    counsel, he or she does have the discretion to reject one. Joint proposals must
    be premised on the statutory criteria for detention and the legal framework for
    release
. [Emphasis added]

[25]

Second,
    the applicant casts his argument in terms of seeking a ruling from Ontarios
    highest court regarding joint submissions on the form and terms of release.
    The applicants tone is one of requesting appellate intervention in respect of
    errors of law in order to give guidance to lower courts in this and other
    cases. However, there is no right of appeal to the Court of Appeal from a bail
    order made by a judge on the authority of ss. 520 or 521:
R. v. Smith
,
    2003 SKCA 8,
227 Sask. R. 279,
at para.
    25; and
Antic
, at para. 18.

[26]

I
    would also observe that on this s. 520 application I am sitting as a single
    judge of a superior court of criminal jurisdiction, which in Ontario means the
    Court of Appeal and the Superior Court of Justice. The applicant asks that I
    exercise a jurisdiction also possessed by judges of the Superior Court of
    Justice. In such circumstances, my decision has no binding effect on any other
    judge of a superior court of criminal jurisdiction in Ontario sitting on a
    similar application.

[27]

Next,
    the fact that the intended review is based on alleged errors of law does not
    qualify, by itself, as a special circumstance justifying a judge of an
    appellate court to entertain a review application under s. 520. Judges of a
    provincial superior court can intervene on a s. 520 application if the justice
    has erred in law:
R. v. St-Cloud
, 2015 SCC 27, [2015] 2 S.C.R. 328, at
    para. 121. Further, in
Durrani
, at para. 30, this court agreed with
    the view expressed by the Manitoba Court of Appeal in
R. v. Zeneli
, 2003
    MBCA 50,
173 Man. R. (2d) 175
, at para. 9,
    that judges of the provincial superior court will fulfill their
    responsibilities by finding judicial error if error indeed exists and by
    exercising an independent discretion if the circumstances call for an
    independent discretion.

[28]

Finally,
    the evidence filed on behalf of the applicant does not disclose any special
    circumstance. It describes a quite ordinary circumstance  the applicant and
    his sureties find the conditions of release to be onerous; they would like them
    changed; and there is evidence about possible employment that was not available
    at the October 2017 review. The respondent is prepared to consent to the
    substance of the modified release terms the applicant proposes. A review under
    s. 520 before a judge of the Superior Court of Justice is the appropriate place
    to seek such a modification. No need exists for this court to exercise its
    concurrent jurisdiction.


V.

DISPOSITION

[29]

For
    the reasons set out above, I dismiss the application, without prejudice to the
    applicant renewing it before a judge of the Superior Court of Justice.

David Brown J.A.





[1]
The difference concerns cell phone possession. The Review Judge had included a
    condition prohibiting the applicant from possessing any cell phone. The
    applicant seeks a variation that would permit him to possess one cell phone.


