



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Momprevil, 2022 ONCA 56

DATE: 20220125

DOCKET: C69648

Tulloch, Pardu and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bernard Momprevil

Appellant

Bernard
    Momprevil, self-represented

Avene
    Derwa, for the respondent the Ministry of the Attorney General

Brian
    Whitehead and Jason Kirsh, for the respondent the Ministry of the Solicitor
    General

Heard:
    January 13, 2022 via video conference

On appeal from the order of Justice
    Robert L. Maranger of the Superior Court of Justice dated February 1, 2021.

REASONS FOR DECISION

[1]

Mr. Momprevil appeals from the dismissal of his application, alleging
    that the prosecution amounted to an abuse of process and that the application
    judge erred in dismissing his
habeas corpus
application.
    He argues that his detention was unlawful because although he was originally
    arrested on three charges, a new information was sworn adding ten more charges.
    He says because he was never arrested on the new charges, he cannot be detained
    on them. Further, he did not receive the detention review hearings mandated by
    s. 525 of the
Criminal Code
, R.S.C. 1985, c.
    C-46, after 90 days in custody. The appellant thus argues that his detention
    was not lawful and he should have been released from custody.

[2]

The appellant was initially arrested on December 10, 2019. He was
    offered a bail hearing on December 13, but requested an adjournment, and was
    not ready for a bail hearing on shortly following dates. On December 23, 2019
    the appellant told the presiding justice: Well, were not going for bail, Your
    Honour. The appellants lawyer wanted to have discussions with the Crown and to
    review disclosure so the matter was adjourned from time to time. On January 28,
    2020 the appellant indicated that he wanted to swear an affidavit he had
    composed himself and give it to the Crown, and then go ahead with a bail
    hearing after the Crown had had a chance to review his affidavit. He was
    considering either hiring a new lawyer or appearing on his own behalf at a bail
    hearing with the assistance of duty counsel at some date in the future. He was
    accordingly scheduled for a bail hearing on February 5, 2020 but requested an
    adjournment. His counsel got off the record. A bail hearing was set for
    February 25, 2020, with or without counsel. He asked for and was granted an
    adjournment on that date. After notice from the custodial institution to the
    court about a detention review, a detention review was initially scheduled for
    March 16, 2020 but was postponed. This was at the outset of the COVID pandemic
    and there was some disruption of court proceedings. A bail hearing was held on
    April 14 and 16, 2020 and he was ordered detained. The correctional institution
    made a second request for a detention review on April 29, 2020. This was not
    scheduled, likely because of the recent bail hearing. The custodial institution
    did not request a further detention review 90 days after the bail hearing. The
    appellants counsel and the court planned to deal with a detention review on
    September 4, 2020 as the appellant was already scheduled to be in court that
    day. The matter was adjourned to September 29, 2020, when the appellants
    counsel withdrew.

[3]

The appellant brought an application for
habeas
    corpus
challenging his continued detention. The application was
    heard and dismissed on February 1, 2021. The application judge did not accept
    the appellants arguments regarding the replacement information and concluded
    that there was no loss of jurisdiction over the appellant. There were other
    concerns expressed by the appellant; for example, the appellant contends that
    the police were wrong to arrest him. The application judge was not persuaded
    that these concerns rose to the level of an abuse of process justifying a stay
    of proceedings.

[4]

He noted that the appellant had been in custody for a lengthy period and
    that the matter of detention reviews had to some extent fallen through the
    cracks, given the exigencies of COVID, the resulting closure of the courts, the
    appellants changes of counsel, together with his applications alleging abuse
    of process and other matters. He observed that a detention review should have been
    held in the fall of 2020.

[5]

The application judge, after considering
R. v.
    Pomfret
, 63 Man. R. (2d) 226 (C.A.), and
R. v.
    Myers
, 2019 SCC 18,
    [2019] 2 S.C.R. 105,
held that the failure to hold a detention
    review hearing in accordance with s. 525 of the
Criminal
    Code
in itself did not render the appellants detention unlawful,
    but that the remedy for that failure was to offer the appellant an immediate
    detention review. The appellant was not willing to proceed with an immediate
    review. The matter was adjourned to assignment court on February 5, 2021. The
    detention review was conducted on February 17, 2021 and the continued detention
    was held to be justified. On November 1, 2021 following a further bail review,
    release was denied.

[6]

The Crown has opposed release throughout and has indicated that it
    contemplates bringing dangerous offender proceedings if the accused is
    convicted.

[7]

The trial was set for January 2022, but we are advised that it has now
    been adjourned, with new counsel for the appellant attempting to set a date for
    the trial.

[8]

We do not accept the appellants arguments on appeal.

The replacement information

[9]

Firstly, dealing with the replacement information, the appellant was
    lawfully before the court on the initial information, and was physically
    present in the court. His presence enabled the presiding judge to deal with the
    replacement information which was not alleged to be defective:
R. v. Wilson
, 2015 SKCA 58, at para. 14;
R. v. David Lindsay (David-Kevin: Lindsay)
, 2006 BCCA
    150, 265 D.L.R. (4th) 193, at para. 20. As noted in
Wilson
,
    at para. 28: Where an information has been laid and the accused comes before
    the court by any means, the court has jurisdiction. The absence of process to
    compel the presence of the accused on the second information does not render
    that information a nullity:
R. v. Ladouceur
,
    2013 ONCA 328, 298 C.C.C. (3d) 414, at paras. 22-23.

[10]

The
    Crown relied on s. 523(1.1) at the hearing before the application judge:
Criminal Code
. This section essentially provides that if
    a person charged with an offence is the subject of a new information which
    charges the same offence or an included offence
while the accused is subject to an
    order for detention, then that detention

order
    applies to the new information.

[11]

However,
    the record before us does not clearly establish whether or not the appellant
    was the subject of any detention order at the time the new information was
    sworn, although he must have been remanded in custody. We have not had the
    benefit of full argument on the interpretation of order for detention in s.
    523(1.1):
Criminal Code
. In any event, for the
    reasons already given, we need not embark on that inquiry in this appeal as the
    presiding justice had jurisdiction over the person of the appellant.

Detention review hearings

[12]

Section
    525 of the
Criminal Code
provides that a
    custodial institution shall apply to a judge to fix a date for a hearing to
    determine whether or not an accused should be released from custody if the
    trial has not commenced within 90 days from the date the accused is initially
    taken before a justice under s. 503, or where there has been a previous
    detention review order or order detaining the accused, the date of the latter
    decision. The section stipulates that the person having custody of the detained
    adult shall make the application immediately after the expiry of the ninety
    days.

[13]

The
    court must set a hearing date to determine whether the continued detention of
    the accused is necessary to ensure the attendance of the accused, for the
    protection or safety of the public, or to maintain public confidence in the
    administration of justice. New evidence about changed circumstance of an
    accused, the impact of the passage of time, and any unreasonable delay are
    relevant factors. A detention review judge may make orders to expedite the
    trial:

Myers
, at para. 4.

[14]

As
    noted in
Myers
,
at para. 24, the purpose of s. 525 of
    the
Criminal Code
is to prevent accused
    persons from languishing in pretrial custody, and to require judicial oversight
    of lengthy pretrial detention at specified intervals. While the Supreme Court indicated
    that a trial court must act to provide a detention review without delay, there
    is no suggestion that the detention of an accused automatically becomes unlawful,
    solely because of the expiry of the 90-day period. As Justice Gary Trotter notes
    in
The Law of Bail in Canada
, 3rd ed.
    (Toronto: Carswell, 2010), at §8:44:

the mere expiration of the
    requisite time period does not automatically lead to release by way of habeas
    corpus.Courts further held that, to obtain relief by way of
habeas corpus
, the accused must also demonstrate
    oppressive or unreasonable delay in bringing the matter to court or a delay of
    such magnitude that one could infer deliberation or design on the part of the
    custodian. [Footnotes omitted.]

[15]

The
    court must act promptly to set a hearing date for the first available date,
    although adjournments might sometimes be necessary to promote the interests of
    justice and the purposes underlying the statutory provision: Trotter, at §8:40

[16]

The
    court in
Myers
cannot have been unaware of
R. v. Pomfret
and in any event did not overrule it. In
Pomfret
, Huband J.A. observed, at p. 59:

I do not think that the continued
    detention of an accused becomes unlawful,
ipso facto
,
    by virtue of the effluxion of the 90-day period. The accused is held in jail by
    virtue of the initial warrant of committal. It has no fixed termination date,
    and does not become spent by the mere passage of time. The keeper of the jail
    is commanded to keep the accused in custody until he is delivered by due
    course of law. The
Criminal Code
of Canada
    contemplates that the warrant for committal will continue extant after the
    90-day period has run its course. By the very terms of s. 525, the application
    for bail review cannot be made until after the 90 days has expired, and it is
    obvious that the application itself might not be heard for some time thereafter.
    In short, the warrant for committal does not automatically lapse due to the
    effluxion of time.

[17]

In
Pomfret
, the court observed that a jailer
    unwilling to proceed with the required s. 525 hearing could be compelled to
    proceed by way of mandamus:
Criminal Code
.

[18]

We
    agree with the reasoning in
Pomfret
that the
    detention does not become unlawful solely on the basis that the 90-day period
    has passed without a detention review.

[19]

As
    the application judge noted, the appellant should have had a detention review
    hearing by the fall of 2020, well before the return date of his
habeas corpus
application on February 1, 2021. We agree,
    however, that the appropriate remedy for this failure was an immediate
    detention review hearing, an offer the appellant expressly declined. The
    detention review hearing ultimately took place on February 17, 2021.

[20]

The
    accused has raised other issues about the reasonableness of his arrest and the
    quality of the investigation. These grounds were not pursued in detail and the
    application judge did not err in concluding that oblique references to these
    issues did not justify a stay of proceedings before trial as it was not a
    matter of the clearest of cases justifying a stay for abuse of process:
R. v. Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, at para
    31.

[21]

Accordingly,
    the appeal is dismissed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

A. Harvison Young
    J.A.


