



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Passera, 2017 ONCA 308

DATE: 20170413

DOCKET: C63443

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Deanna Passera

Appellant

Marianne Salih and Carlos F. Rippell, for the appellant

John North, for the respondent

Heard: March 31, 2017

On appeal from the decision of
    Justice Irving W. André of the Superior Court of Justice on February 21, 2017
    denying the appellant's application for a writ of
habeas corpus
.

By the Court:

[1]

The appellant was arrested on a charge of importing cocaine on
    August 24, 2014. As a person charged with an offence under s. 6(1) of the
Controlled
    Drugs and Substances Act
,
S.C. 1996, c. 19 (
CDSA
)
, s.
    515(6)(d) required that she be detained in custody unless she showed cause why
    her detention was not justified.

[2]

A jury found the appellant guilty
    as charged. The trial judge entered a conviction. Counsel made submissions on
    sentence.

[3]

On the date originally fixed for
    sentencing, the appellant filed a
Notice of Constitutional Question
. As originally framed, the notice challenged the
    constitutional integrity of s. 719(3.1) of the
Criminal Code
, a provision which caps credit for time spent in
    pre-disposition custody at a rate of 1.5:1. The appellant later expanded her
    challenge to take in s. 719(1), which prescribes the commencement date of a
    sentence as the date of its imposition, absent a relevant enactment that
    provides otherwise.

The Release Application

[4]

Prior to the date fixed for the
    hearing of the constitutional challenge, the appellant filed her first
    application for judicial interim release. About 26 months after her arrest, the
    appellant invoked s. 523(2)(a) of the
Criminal Code
to ask the trial judge to vacate the detention order
    and permit her release until the trial was completed by the imposition of
    sentence. The application was grounded on an alleged change in circumstances.

[5]

The trial judge dismissed the
    application on the basis that the appellant had failed to show cause why her
    detention was not justified on the tertiary ground.

The Review Proceedings

[6]

About two months later, the
    appellant brought an application "in the nature of
habeas
    corpus

with
certiorari
in aid" before a judge of the Superior Court of Justice. The relief
    sought was an order:

1.       Declaring that the Court has
    jurisdiction to address the Applicant's bail, pursuant to: 1) the Court's
    inherent jurisdiction to grant bail; and 2) the Court's inherent jurisdiction
    to hear
habeas corpus

applications;

2.       Declaring that the absence of
    a review mechanism for the Applicant's denial of bail by a trial judge, which
    order was made on November 1, 2016, pursuant to section 523(2) of the
Criminal
    Code
, violates the Applicant's rights under section 7 and 9 of the
Charter
;

3.       Declaring that, as a remedy to
    the violation of her rights under section 7 and 9 of the
Charter
,
    Applicant is entitled to a review of her bail under section 24(1) of the
Charter
.

4.       Declaring that the Applicant's
    detention is not justified on the primary, secondary, or tertiary grounds.

5.       Granting the Applicant judicial interim release order pending
    sentencing.

[7]

The application judge dismissed
    the application. He concluded:

i.

a judge of the Superior Court of
    Justice has the inherent jurisdiction to review the appellant's detention and
    grant her bail;

ii.

the inherent jurisdiction may only
    be exercised provided that it does not contravene any statutory provision;

iii.

section 523(2)(a) of the
Criminal
    Code
clearly indicates Parliament's
    intention to make trial judges' orders on release or detention final since no
    review mechanism is provided; and

iv.

habeas corpus
is not
    available as an appropriate remedy to achieve the result the appellant seeks.

The Appeal

[8]

The appellant advanced several arguments in her written and oral
    submissions. I would paraphrase those submissions as arguments that the
    application judge erred:

i.

in finding that the Superior Court of Justice lacked inherent
    jurisdiction to review an order made under s. 523(2)(a) of the
Criminal
    Code
,

despite the
    principle that such jurisdiction is available to remedy unintentional gaps in
    legislation such as the inclusion of a mechanism to review those orders;

ii.

in failing to consider the availability of
habeas corpus
to
    determine the legality of the appellant's detention in light of the absence of
    a statutory review mechanism;

iii.

in failing to find that the absence of a review mechanism for orders
    made under s. 523(2)(a) violates the appellant's rights under ss. 7 and 9 of
    the
Charter
in granting a bail review as an appropriate and just
    remedy; and

iv.

in failing to find that the appellant's detention was without just
    cause.

Discussion

[9]

At the conclusion of argument we dismissed the appeal. These are our
    reasons for having done so.

The Inherent Jurisdiction Argument

[10]

The first ground of appeal alleges
    that the application judge erred in failing to hold that, as a judge of the
    superior court of criminal jurisdiction, he had inherent jurisdiction to review
    the trial judge's order because of an unintentional legislative gap in the
Criminal
    Code
 the failure to make express
    provision for a review of that order.

[11]

We do not agree.

[12]

To begin, we do not consider the
    legislative lacuna relied upon by the appellant as an unintentional gap. We see
    it as a deliberate legislative choice to confer upon the trial judge the
    authority to alter an accused's judicial interim release status as trial
    proceedings unfold. In light of the plethora of other review mechanisms  as
    for example ss. 520, 521, 525 and 680  it simply cannot be said that
    Parliament's choice was other than deliberate:
R. v. Bukmeier
(1996), 107 C.C.C. (3d) 272 (BCCA), at paras. 15, 20.
    See also,
R. v. Durrani
, 2008
    ONCA 856, at paras. 13-14.

[13]

The absence of a review mechanism
    and the unavailability of recourse to inherent jurisdiction to fill the gap is
    also consistent with general principle. The decisions of trial judges on
    procedural, evidentiary and substantive issues within their purview, in short,
    the management of trial proceedings, is left to the trial judge.
In
    limine
review proceedings, with their
    resultant delay; fragmentation of the criminal trial process; determination of
    issues on an incomplete and inadequate evidentiary record, not to mention their
    consumption of time and effort and unnecessary depletion of scarce judicial
    resources, are the antithesis of our system of criminal justice:
R.
    v. Johnson
(1991), 3 O.R. (3d) 49 (C.A), at
    para. 8.

[14]

Third, a similar argument invoking
    inherent jurisdiction as the source of authority in the absence of a specific
    statutory provision authorizing what is sought was rejected by this court in
R.
    v. Kennedy
, [1972] 2 O.R. 754 (C.A.), at
    pp. 755-756 and in
R. v. Morgentaler, Smoling and Scott
(1984), 16 C.C.C. (3d) 1 (Ont. C.A.), at pp. 5-6.

[15]

Fourth, to give effect to the appellant's argument would be to permit
    circumnavigation of a clear Parliamentary intention to leave matters of
    judicial interim release at trial in the hands of the trial judge, where other
    equally significant procedural, evidentiary and substantive decisions reside,
    subject to review at the conclusion of trial proceedings. And, as the
    respondent points out, section 523(2)(a) is itself a review provision since it
    involves consideration of a prior detention or release order. What is more,
    there is nothing to prevent a second or subsequent application under s.
    523(2)(a) as fortunes change at trial.

The
Habeas Corpus
Application

[16]

The appellant's second ground of appeal alleges that the application judge
    failed to consider her argument that she was entitled to relief by way of
habeas
    corpus

with
certiorari
in aid.

[17]

In our view, the application judge did, albeit briefly, consider this
    aspect of the appellant's argument and rightly rejected it.

[18]

It is worth reminder at the outset, that
habeas corpus
is an
    extraordinary remedy. It, like its siblings, issues out of the superior court
    of criminal jurisdiction to ensure that courts of limited jurisdiction conduct
    themselves within that jurisdiction. It does not issue, at least as a general
    rule, to supervise the conduct of proceedings in the court from which it
    issues. That is not to say that it cannot do so. See, for example,
R. v.
    Gamble
, [1988] 2 S.C.R. 595. But those circumstances do not obtain here.

[19]

Second, and more importantly, it is well settled that it is only in
    exceptional cases that
habeas corpus
may be invoked to remedy a
    refusal to grant judicial interim release. One such instance occurs when an
    applicant challenges the constitutional integrity of the applicable statutory
    authority under s. 52(1) of the
Constitution Act
and seeks a remedy,
    say a judicial interim release hearing or release, under s. 24(1) of the
Charter
:
R. v. Pearson
, [1992] 3 S.C.R. 665, at paras. 24-25.

[20]

But that is not this case. The appellant does
not
seek to
    strike down as unconstitutional s. 523 of the
Criminal Code
for its
    failure to include or to incorporate by reference a review mechanism like s.
    520.  Nor does she seek to strike down s. 520(1) for its failure to include an
    order under s. 523(2), more particularly, s. 523(2)(a), within its sweep. Thus
    the limited exception to the general unavailability of
habeas corpus
as a remedy against denial of judicial interim release is beyond the
    appellant's grasp. Further, the appellant has not attempted to comply with the
    notice requirements applicable to challenges under s. 52 of the
Constitution
    Act
. To permit her to invoke
habeas corpus
to achieve the same
    result would be to allow her to mount an indirect attack on the integrity of
    the legislation, a course that is not open to her.

Conclusion

[21]

In the result, the appeal fails and is dismissed.

Released: April 13, 2017 ("DW")

"David Watt J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."


