



WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect
    of whom the proceedings are held is tried or ordered to stand trial, the trial
    is ended.

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S.,
    1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.A., 2021 ONCA 93

DATE: 20210211

DOCKET: M52166 (M51556)

Trotter,
    Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.A.

Applicant

Leora Shemesh, for the applicant

David Friesen, Eric Taylor and Nicole
    Rivers, for the respondent

Heard: February 5, 2021 by
    videoconference

On review of the order of Justice Russell Juriansz of the Court of
    Appeal for Ontario, dated November 4, 2020.

By the Court:

[1]

On October 21, 2020, a panel of this court
    ordered that the applicant be detained pending his trial on two counts of first
    degree murder, and one count of attempted murder, following two shootings
    linked to organized crime.

[2]

The applicant has sought leave to appeal this
    decision to the Supreme Court of Canada. In the meantime, he applied to this
    court seeking bail pending his application for leave to appeal; alternatively, he
    sought a stay of execution of the decision detaining him. Juriansz J.A., sitting
    as a single judge of this court, denied both heads of relief. The applicant now
    seeks to review both aspects of Juriansz J.A.s decision before a panel of this
    court.

[3]

At the conclusion of the oral hearing, we
    announced our decision to dismiss the application, with reasons to follow.
    These are our reasons.

Background

(a)

History of the Bail Proceedings

[4]

This application is the latest chapter in the
    applicants effort to be released on bail while he awaits his trial.

[5]

On July 30, 2019, Parayeski J. denied the
    applicants first bail application, brought under s. 522(2) of the
Criminal
    Code
, R.S.C. 1985, c. C-46:
R. v. J.A
.
,

2019 ONSC
    4532. On October 21, 2019, a panel of this court dismissed a review of that
    detention order under s. 680:
R. v. J.A
.
, 2019 ONCA 831.

[6]

The applicant brought another bail application
    under s. 522(2), relying on asserted changed circumstances, including a revised
    release plan with new sureties. This time, he was successful. Goodman J.
    released him on April 16, 2020 on strict conditions, with named sureties in the
    amount of $300,000, augmented by electronic monitoring:
R. v. J.A
.
,
    2020 ONSC 2312.

[7]

The Crown applied under s. 680 to review Goodman
    J.s release order. Fairburn J.A., as she then was, directed that a panel
    review the decision:
R. v. J.A.
,

2020 ONCA 470. On October 21,
    2020, Thorburn J.A. (Miller J.A., concurring) allowed the application and
    imposed a detention order under s. 680(1)(b) of the
Criminal Code
;
    Nordheimer J.A., dissenting, would have dismissed the Crowns application:
R.
    v. J.A
.
, 2020 ONCA 660 (the October 2020 Order).

[8]

On October 21, 2020, the applicant applied to
    the Supreme Court of Canada for leave to appeal the October 2020 Order, pursuant
    to s. 40 of the
Supreme Court Act
, R.S.C. 1985, c. S-26.

(b)

The Order Under Review

[9]

After filing his application for leave to
    appeal, the applicant applied to a single judge of this court for the following
    relief: first, purporting to rely on s. 679(1)(c) of the
Criminal Code
,
    the applicant requested bail pending his application for leave to appeal; and second,
    in the alternative, he relied on s. 65.1 of the
Supreme Court Act

and
    requested a stay of this courts October 2020 Order pending his application for
    leave to appeal. On November 4, 2020, Juriansz J.A. dismissed the application.

[10]

Juriansz J.A. concluded that he did not have
    jurisdiction to release the applicant under s. 679(1)(c) of the
Criminal
    Code
. As he explained, at para. 11:

Section 679, when read in context of the
Code
s
    entire bail regime, is inapplicable to a person, such as the applicant, who is
    awaiting trial. Section 679, when read in context and given its plain
    grammatical meaning, applies to a person who has been convicted and allows this
    court to release them from custody pending the determination of an appeal of
    conviction and/or sentence.
Section 679(1)(c) does not provide a route to
    have a single judge of this court review a decision of this court made under s.
    680, albeit on an interim basis
. [Emphasis added.]

[11]

As for the applicants alternative request for
    relief  a stay of proceedings  Juriansz J.A. ruled as follows, at para. 13:

As I have
    concluded I do not have jurisdiction to grant that the applicant be released
    under s. 679(1)(c), he requests that I consider the merits of his application
    for release and issue a stay of this courts October 21, 2020 order.
I
    decline to do so, as doing so would circumvent the statutory scheme of judicial
    release
. [Emphasis added.]

(c)

The Supreme Court of Canada

[12]


On November 17,
    2020, the applicant applied to the Supreme Court of Canada for a stay of the
    October 2020 Order (the November 2020 Application). In the alternative, he
    requested that his case be remitted back to this court for a determination
    pursuant to s. 679(1)(c). On January 18, 2021, Martin J. issued the following
    order:

The motion for a stay of execution is
    dismissed on the basis that the parties may have recourse under s. 7(5) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, and s. 683(3) of the
Criminal Code
,
    R.S.C. 1985, C-46, that they have not exhausted at the Court of Appeal.

[13]

The applicant returns to this court, relying on
    these provisions to review the order of Juriansz J.A.

Analysis

(a)

This Panels Authority to Review Juriansz J.A.s
    Decision

[14]

Section
    7 of the
Courts of Justice Act
,
R.S.O. 1990, c. C.43,
determines the composition of this
    court in various circumstances. Subject to some exceptions, motions before this
    court are heard by a single judge: see
R. v. Scherba
(2001), 54 O.R. (3d) 555 (C.A.), at para. 12. Subsection 7(5) provides:
A panel of the Court of Appeal may, on motion, set aside or vary
    the decision of a judge who hears and determines a motion.

[15]

As discussed below, an order of a single judge of this court under
    s. 679(1)(c) of the
Criminal Code
is properly reviewable by a panel of
    the court under s. 680 of the
Code
, which the applicant has not invoked,
    rather than under the
Courts of Justice Act
. But more fundamentally, s.
    679(1)(c) does not have any application in a case such as this, in which the
    applicant is seeking to be released on bail while he attempts to appeal to the
    Supreme Court of Canada from an order of this court that he be detained pending
    trial. Accordingly, the power in s. 7(5) of the
Courts of Justice Act
is
    of no assistance to the applicant to the extent he founds his request for
    relief on s. 679(1)(c) of the
Criminal Code
.

[16]

While s. 7(5) of the
Courts of Justice Act
gives this panel
    the power to review Juriansz J.A.s decision as it relates to a stay of the
    October 2020 Order, in our view there is no basis to set aside or vary his
    decision.


(b)

Bail Pending Application for Leave to Appeal


[17]

Martin
    J.s order makes no reference to s. 679(1)(c). This is significant because, as
    part of his November 2020 Application before that Court, the applicant
    requested alternative relief  that the Court remand the case to this court to
    consider the applicability of s. 679(1)(c). Martin J. did not do so.

[18]

Moreover,
    if the applicant were correct in his submission that Juriansz J.A. erred in
    finding that s. 679(1)(c) is inapplicable, his avenue of review would not fall
    under s. 7(5) of the
Courts of Justice Act
: it
    would fall under s. 680 of the
Criminal Code
.
    Section 680 provides that orders made under s. 679 may be reviewed by a panel on
    the direction of the chief justice or acting chief justice of the court of
    appeal. This is the case even though Juriansz J.A. found that he had no
    jurisdiction to entertain the s. 679 application: see
R.
    v. Stoltz
(1993), 84 C.C.C. (3d) 422 (B.C.C.A.), at p. 428. The prospect
    of this taking place  a panel review (under s. 680) of a single judges decision
    concerning bail pending leave to appeal (under s. 679(1)(c)) of a previous
    panels bail decision (under s. 680)  demonstrates the untenability of the
    applicants position that s. 679(1)(c) has any application in these
    circumstances.

[19]

We
    agree with Juriansz J.A.s conclusion that s. 679(1)(c) does not apply in this
    case. The section provides as follows:

679(1) A judge of the court of appeal may, in accordance with
    this section, release an appellant from custody pending the determination of
    his appeal if,

(a) in the case of an appeal to the court of appeal against
    conviction, the appellant has given notice of appeal or, where leave is required,
    notice of his application for leave to appeal pursuant to s. 678;

(b) in the case of an appeal to the court of appeal against
    sentence only, the appellant has been granted leave to appeal; or

(c)
in the case of an appeal or an application for leave
    to appeal to the Supreme Court of Canada, the appellant has filed and served
    his notice of appeal or, where leave is required, his application for leave to
    appeal
. [Emphasis added.]

[20]

Considered
    without context, s. 679(1)(c) could be read as encompassing an application for
    leave to appeal from a court of appeals denial of bail under s. 680. But, as
    Juriansz J.A. concluded, that is not what s. 679 is designed to achieve. As
    with the rest of the section, and consistent with Part XXI (Appeals 
    Indictable Offences) as a whole, s. 679(1)(c) applies to bail pending appeal
    from conviction and/or sentence; not from a bail decision under s. 680.

[21]

The
    applicant essentially asserts a right to bail pending a bail review (or in this
    case, an application for leave to appeal from the denial of bail). This concept
    is alien to all of the bail review provisions throughout the
Criminal Code
. The applicants suggested application of
    s. 679(1)(c) puts a single judge (and a reviewing panel) in the untenable
    position of having to explicitly endorse or reject the underlying detention
    order that is the subject of proceedings in the Supreme Court of Canada. It
    will be for that Court, not a single judge or panel of this court, to determine
    whether this courts order under s. 680 should stand; that is, whether the
    applicant should be released on bail pending his trial.

[22]

The
    applicants request for a review of the decision under s. 679(1)(c) is
    dismissed.

(c)

Stay of Execution on Application for Leave to
    Appeal

[23]

A
    more challenging question is whether this court may exercise the power in s.
    65.1 of the
Supreme Court Act

to in effect grant bail in a criminal proceeding. Section 65.1 provides
    that this court may order a stay of proceedings against one of its own judgments
    when a party has served and filed a notice of application for leave to appeal the
    judgment at issue. The stay of proceedings sought by the applicant from
    Juriansz J.A. in this case was the equivalent of a release order. Indeed, the
    applicant sought, and still seeks, through a stay of the October 2020 Order, to
    restore Goodman J.s order. But as discussed below, there is a very real
    practical hurdle to achieving this result.

[24]

Relying
    on the order of Martin J., the applicant submits that his requested relief is
    achievable through the application of s. 683(3) of the
Criminal
    Code
, which provides as follows:

(3) A court of appeal may exercise, in relation to proceedings
    in the court, any powers not mentioned in subsection (1) that may be exercised
    by the court on appeals in civil matters, and may issue any process that is
    necessary to enforce the orders or sentences of the court, but no costs shall
    be allowed to the appellant or respondent on the hearing and determination of
    an appeal or on any proceedings preliminary or incidental thereto.

[25]

The
    applicant contends that this section equips this court with the authority to
    order a stay of proceedings under s. 65.1 of the
Supreme
    Court Act
. That section provides:

65.1 (1) The Court, the court appealed from or a judge of
    either of those courts may, on the request of the party who has served and
    filed a notice of application for leave to appeal, order that proceedings be
    stayed with respect to the judgment from which leave to appeal is being sought,
    on the terms deemed appropriate.

(2) The court appealed from or a judge of that court may
    exercise the power conferred by subsection (1) before the serving and filing of
    the notice of application for leave to appeal if satisfied that the party
    seeking the stay intends to apply for leave to appeal and that delay would
    result in a miscarriage of justice.

(3) The Court, the court appealed from or a judge of either of
    those courts may modify, vary or vacate a stay order made under this section.

[26]

As
    the applicant observes, this provision has been applied in proceedings under
    the
National Defence Act
, R.S.C. 1985, c. N-5
    to address the question of bail pending proceedings in the Supreme Court of
    Canada. Although that Act provides for bail pending the appeal of proceedings
    in the Court Martial Appeal Court of Canada (CMAC) (see ss. 248.1 to 248.4),
    the CMAC has no jurisdiction to order judicial interim release of a convicted
    person pending his or her appeal to the Supreme Court of Canada: see
R. v. Stillman
, 2019 CMAC 1, at para. 3;
R. v. Royes
, 2016 CMAC 3, 338 C.C.C. (3d) 183, at paras.
    16-17, leave to appeal refused, [2017] S.C.C.A. No. 324. Nonetheless, in both
    of these cases, Bell C.J. applied the well-known criteria in
RJR-MacDonald Inc. v. Canada (Attorney General)
, [1994]
    1 S.C.R. 311, to the stay provision under s. 65.1 of the
Supreme
    Court Act

to determine whether it was appropriate
    to stay the imposition of the offenders sentence, thereby granting a remedy
    similar to judicial interim release. See also
T.(M.) v. A.(H.)
,
    [1995] 1 S.C.R. 445, at paras. 4-5, in which Sopinka J. relied upon s. 65.1 of
    the
Supreme Court Act
to release an applicant
    in the context of civil contempt, in circumstances where s. 679 of the
Criminal Code

arguably did not
    apply.

[27]

There
    is nothing in s. 65.1 that expressly excludes a detention order from the
    category of judgments that may be stayed. However, we agree with the Crown,
    that given the grounds that justify a detention order pending trial in s.
    515(10) of the
Criminal Code
, it is not
    particularly clear how the
RJR-MacDonald

criteria are to be applied, especially the factor of where
    the balance of convenience may lie.

[28]

We
    need not, however, explore this issue any further. The applicants request to
    Juriansz J.A. was to stay this courts October 2020 Order, enabling him to be
    re-released on the terms ordered by Goodman J. However, the applicant is no
    longer able to meet a critical part of this order.

[29]

Goodman
    J. released the applicant after this court upheld Parayeski J.s detention
    order. Goodman J.s decision was based on changed circumstances, including a
    new release plan. As Goodman J. said, at para. 122:

I confess that this decision is a close call.
In adding the
    COVID-19 pandemic into the proposed release plan's "mix", as expressed
    in the recent jurisprudence, along with some diminution to the strength of the prosecution's
    case, I am persuaded that the applicant has met his onus
. In my opinion, the
    decidedly restrictive release plan proffered by the applicant will address the Crown's
    primary and secondary ground concerns
. [Emphasis added.]

[30]

In
    addition to naming the applicants father a surety, Goodman J. also named two
    further sureties  ErT and EIT  in the amount of $300,000:
Criminal Code
, s. 515(2.1). These sureties were
    cross-examined at the bail hearing. Their sufficiency was challenged by the
    Crown. Goodman J. assessed their evidence in the following way, at para. 81:

While the two principal sureties seemed sincere, I tend to agree
    with the Crown that both ErT and ElT came across as somewhat naïve in their understanding
    of the applicant's entire situation
. That being said, they testified as to their
    willingness to assist with the plan, why there is a substantial monetary pledge
    in support and why they did not present themselves earlier as potential sureties.
Overall, I find both ErT and ElT to be well-meaning, credible and up to the
    challenge of supervising J.A.
[Emphasis added.]

[31]

We
    were advised by the parties that ErT and EIT are no longer able to serve as
    sureties. The applicant has proposed two new sureties in the same amount 
    $300,000.

[32]

Counsel
    for the applicant acknowledges that this turn of events is less than ideal;
    however, she submits that, under s. 65.1 of the
Supreme
    Court Act
, this court may impose a stay on the terms deemed
    appropriate. We cannot accept this submission. The two named sureties were
    integral to Goodman J.s order, as reflected in the passages quoted in paras.
    29 and 30, above. Moreover, Goodman J. ordered that the applicant live with ErT
    and ElT while he was out on bail. The substitution of new sureties in these
    circumstances goes well beyond the imposition of terms deemed appropriate in
    s. 65.1(1) of the
Supreme Court Act
. It would
    involve a significant refashioning of Goodman J.s order in a decision that he
    characterized as a close call.

Conclusion

[33]

The application is dismissed.

Released: GTT February 11, 2021

Gary Trotter J.A.

B. Zarnett J.A.

S. Coroza J.A.


