



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    justice shall not be published in any document, or broadcast or transmitted in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(3)     [Repealed, 2005, c. 32, s.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. Ali, 2020 ONCA 566

DATE: 20200909

DOCKET: M51726

Trotter J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Abdirisaq Ali

Applicant

R. Craig Bottomley and Mayleah Quenneville,
    for the applicant

Karen Papadopoulos, for the respondent

Heard: August 27, 2020 by teleconference

Introduction

[1]

The applicant is charged with two counts of
    second degree murder. He was ordered detained in custody after a bail hearing
    conducted under s. 522 of the
Criminal Code
, R.S.C. 1985, c. C-46.
The trial judge subsequently reviewed that decision pursuant to s.
    523(2)(a) of the
Criminal Code

and declined to vacate Mr. Alis detention
    order.


[2]

The applicant applies under s. 680(1) of the
Criminal
    Code
for a direction that a panel of this court review his detention.

[3]

Section 680(1) provides:

s. 680(1)
A
    decision made by a judge under section 522, a decision made under subsections
    524(3) to (5) with respect to an accused referred to in paragraph 524(1)(a) or
    a decision made by a judge of the court of appeal under section 320.25 or 679
    may, on the direction of the chief justice or acting chief justice of the court
    of appeal, be reviewed by that court and that court may, if it does not confirm
    the decision,

(a)
vary the
    decision; or

(b)
substitute such other decision as, in its opinion, should have
    been made.

I have been designated by the Chief
    Justice of Ontario to decide this application.

[4]

The respondent Crown has raised a question
    concerning this courts jurisdiction to consider the applicants request for
    review. The Chief Justice has directed that the jurisdictional issue be
    determined first.

[5]

The Crowns jurisdictional challenge must succeed.
    Section 680 vests no power in this court to review the decision of a trial
    judge under
s. 523(2)(a)
. For this reason, the
    application must be dismissed. However, the applicant is not without recourse;
    he may bring a fresh application under s. 522 of the
Criminal Code
, if
    so advised.

Background

[6]

The applicant and his co-accused, Tanade
    Mohamed, are charged with two counts of second degree murder. The applicant was
    arrested on October 2, 2017 and has remained in custody ever since.

[7]

Forestell J. of the Superior Court of Justice
    dismissed Mr. Alis application for bail under s. 522 of the
Criminal Code

on July 4, 2018.

[8]

The trial commenced in early 2020 before B.P.
    OMarra J. The Crowns case was almost complete by March 16, 2020 when public
    concern about the COVID-19 virus led to a postponement of the proceedings. The
    trial was adjourned until June 8, 2020.

[9]

In the meantime, the applicant applied to review
    his bail before the trial judge, pursuant to s. 523(2)(a) of the
Criminal
    Code
. On May 15, 2020, the trial judge dismissed the application:
R.
    v. Ali
, 2020 ONSC 2968. Two weeks later, it became apparent that the trial
    could not continue due to the pandemic. The trial judge declared a mistrial and
    discharged the jury. It is anticipated that a new trial will not commence until
    March 2021.

Discussion

[10]

The Crown takes the position that, because the
    decision under review was made pursuant to s. 523(2)(a) of the
Criminal Code
,
    this court lacks jurisdiction to review the propriety of the applicants
    detention.
Section 680(1) explicitly permits appellate
    review of orders made under the following
Criminal
    Code
provisions: s. 522 (a bail hearing on a s.
    469 offence); ss. 524(3) to (5) (bail revocation decisions in relation to s.
    469 offences); s. 320.25 (stays of driving prohibitions made by a judge of the
    court of appeal); and s. 679 (bail pending appeal). Section 680 does not refer
    to decisions made under s. 523(2).


[11]

Part XVI of the
Criminal Code
provides
    various avenues for the review of bail decisions, ensuring that the accused
    person and the prosecutor have the ability to challenge the accused persons
    bail status as the case travels through the trial process.
The main bail review provisions are found in ss. 520, 521, 525 and
    680. Sections 520 and 521, which were considered by the Supreme Court of Canada
    in
R. v. St-Cloud
,
    2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 90-139, permit the review of bail
    decisions made in respect of offences not listed in s. 469 of the
Criminal Code
. Additionally, s. 525 of
    the
Code
requires the review of an accused persons detention when the
    trial has been delayed, but only in respect of offences not listed in s. 469.
    See the discussion in
R. v. Myers
, 2019 SCC 18, [2019] 2 S.C.R. 105, at paras. 28-63. Finally, s. 680
    permits the review of pre-trial bail decisions made under s. 522 (for s. 469
    offences), as well as other decisions listed in the paragraph above. See the
    discussion of s. 680 in
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 53-64.


[12]

Section 523(2) augments these main bail review
    provisions by providing avenues for review that are more specialized.
    Subsections 523(1) to (1.2) deal with the duration of bail orders and address
    the impact on bail when a new information is received, or a direct indictment
    is preferred. Section 523(2) then provides for the following three types of
    review:

(2) Despite subsections (1) to (1.2),

(a)
the court, judge or justice before
    which or whom an accused is being tried, at any time
,

(b) the justice, on completion of the preliminary
    inquiry in relation to an offence for which an accused is ordered to stand
    trial, other than an offence listed in section 469, or

(c) with the consent of the prosecutor
    and the accused or, where the accused or the prosecutor applies to vacate an
    order that would otherwise apply pursuant to subsection (1.1), without such
    consent, at any time

(i) where the
    accused is charged with an offence other than an offence listed in section 469,
    the justice by whom an order was made under this Part or any other justice,

(ii) where the
    accused is charged with an offence listed in section 469, a judge of or a judge
    presiding in a superior court of criminal jurisdiction for the province, or

(iii) the
    court, judge or justice before which or whom an accused is to be tried,

may, on cause being shown, vacate any order
    previously made under this Part for the interim release or detention of the
    accused and make any other order provided for in this Part for the detention or
    release of the accused until his trial is completed that the court, judge or
    justice considers to be warranted. [Emphasis added.]

[13]

This application only concerns s. 523(2)(a),
    which authorizes the judge before whom an accused is being tried to review a
    bail order while the trial is underway.
Section 523(2)(b)
    empowers the preliminary inquiry judge to review a prior bail decision in
    relation to offences not listed in s. 469, whereas s. 523(2)(c) provides a
    procedure for returning to the court with plenary bail jurisdiction to request
    changes to a prior order, under s. 515 or s. 522 as the case may be, with
    consent of both parties.

[14]

The opportunities to review orders made under s.
    523(2) are not robust. Orders made under s. 523(2)(b) are reviewable under ss.
    520(1) and 521(1).
There is no avenue to review orders
    made under s. 523(2)(a) or (c).


[15]

Section 523(2)(a) empowers trial judges to
    address the bail status of accused persons during the course of the trial. The
    lack of a review mechanism forecloses interference by another court while the
    trial is ongoing.
See paras. 12-13 of
R. v. Passera
,
    2017 ONCA 308, 352 C.C.C. (3d) 478, discussed further below.

[16]

Returning to the issue of jurisdiction, s.
    680(1) does not refer to a decision made by a trial judge under s. 523(2)(a).
    The applicant accepts that, on a straightforward reading of s. 680(1), there is
    no jurisdiction for this court to review a s. 523(2)(a) order. However, he
    submits that the circumstances of his case are unique in a way that should
    relieve him of the strictures of s. 680(1). I disagree.

[17]

Almost 25 years ago, in
R. v. Bukmeier
(1996), 107 C.C.C. (3d) 272 (B.C.C.A.), the Court determined that there is no
    jurisdiction under s. 680 to review a decision made under s. 523(2)(a). As the
    Court said, at para. 15:

It is trite law that this Court is a court of
    statutory jurisdiction. We were urged to find some means of review where the
    condition precedent to an order is the requirement that cause be shown.
However
    attractive this may be in principle, we are not prepared to ignore the plain
    wording of s-s.680(1) or to conclude that the omission of any reference to
    s.523 in s-s.680(1) is a mere oversight. In our view Parliament intended that
    an order made under s-s.523(2) by a judge of a superior court of criminal
    jurisdiction shall be a final order.
The result is that any review of such
    an order must be made by the Supreme Court of Canada under s-s.40(1) of
    the
Supreme Court Act
, R.S.C. 1985, c. S-26, if that Court
    considers the criteria for leave to appeal are present. [Emphasis added.]

[18]

Staying in British Columbia for the moment,
    there is related support for this position. In
R. v. Purdy
, 2005 BCCA
    99, 208 B.C.A.C. 267, the accused was detained following a bail hearing under
    s. 522 of the
Code
. A bail review was conducted under s. 523(2)(c),
    which requires the consent of the Crown. That application was dismissed.

[19]

Purdy applied for a direction under s. 680 of
    the
Criminal Code
.
The application was dismissed for want of
    jurisdiction. Although he did not refer to
Bukmeier
, Finch C.J.B.C.
    took the same approach, holding that the language of s. 680 of the
Criminal
    Code
does not provide for review of a s. 523 order (see
Purdy
,
at paras. 8-11).

[20]

This court reached the same conclusion in
Passera
.
    Ms. Passera was found guilty of drug offences. On the date fixed for
    sentencing, she filed a constitutional challenge, the effect of which was to
    delay sentencing. In the meantime, Ms. Passera made an unsuccessful application
    to the trial judge for release under s. 523(2)(a) of the
Criminal Code
.
    Recognizing that an order under s. 523(2)(a) could not be reviewed under s. 520
    because the trial had not yet concluded, she brought a
habeas corpus
application. That application was likewise dismissed.

[21]

On appeal from the dismissal of the
habeas
    corpus
application, this court addressed the reviewability of orders made
    under s. 523(2)(a). As the court said, at paras. 10-13 and 15:

[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 (B.C. C.A.), at paras. 15, 20.
    See also,
R. v. Durrani
, 2008 ONCA 856 (Ont. C.A. [In
    Chambers]), 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 (Ont.
    C.A.), at para. 8.



[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.
[Emphasis added.]

[22]

Subsequent events confirm the courts decision
    that the legislative gap is intentional. In 2019, Parliament made extensive
    changes to the bail provisions: Bill C-75,
An Act to amend the Criminal
    Code, the Youth Criminal Justice Act and other Acts and to make consequential
    amendments to other Acts
, 1st Sess., 42nd Parl., 2019, c. 25.
Minor changes were made to s. 680, but the ambit of the section was
    not widened to accommodate reviews of decisions made under s. 523(2).

[23]

In her able oral submissions on behalf of the
    applicant, Ms. Quennville attempts to distinguish this case from
Passera
.
She
    submits that the circumstances of this case are very different from
Passera
because there is no longer any need to protect a trial judge from outside
    interference. There is no trial. Consequently, the functional justifications
    for foreclosing a right of review no longer exist.
Moreover,
    the courts reference to the ability of an accused to make a second or
    subsequent application under s. 523(2)(a) as fortunes change at trial is of no
    consolation.

[24]

The applicant submits that this jurisdictional
    barrier could be overcome by treating the order under review as one that was more
    properly made under s. 522, rather than s. 523(2)(a). The reason advanced for
    this reclassification is that, had the application for a bail review been made
    two weeks later  after the mistrial had been declared  the application would
    have been heard under s. 522, providing this court with jurisdiction to review
    the decision.

[25]

There are problems with this position. First,
    the application was explicitly made under s. 523(2)(a). Given that the applicant
    had been placed in the charge of the jury at that time, s. 523(2)(a) was the
    only bail review mechanism at his disposal. The unforeseen declaration of a
    mistrial does not change this historical fact. To accede to this position would
    fictionalize what occurred solely to facilitate this courts claim of
    jurisdiction to review the applicants detention order. This is the type of
    circumnavigation that the court warned against in
Passera

(see
    para. 15).

[26]

I return to the applicants argument, referred
    to above, that had the mistrial been granted two weeks later, any review of his
    bail would have been under s. 522 of the
Criminal Code
. That is where
    his remedy now lies  he may apply for release under s. 522. Also, as indicated
    at para. 15 of
Bukmeier
, the applicant may apply for leave to appeal
    to the Supreme Court of Canada, although I accept that this might not be as practical
    a solution. Nonetheless, he is not without a means of reviewing his detention.

[27]

The applicant submits that he prefers a review
    in this court under s. 680 because he wishes to assert error on the part of the
    trial judge; he contends that under s. 522, he would be restricted to arguing a
    material change of circumstances. While a s. 680 review may be the applicants
    preference, it does not eradicate the jurisdictional barrier. Although the
    issue was not fully argued before me, the applicants counsel indicated that
    the alleged error on the part of the trial judge is insufficiency of his
    reasons. I make no comment on the merits of this submission, but observe that, standing
    alone, a claim of insufficient reasons, if successful, would not result in the order
    under review being set aside. The court would still be required to examine the
    record to determine whether release is appropriate in all of the circumstances.
    This is ultimately what is required of a judge hearing a fresh application
    under s. 522.

[28]

In conclusion, there is no jurisdiction to
    review the applicants detention order made under s. 523(2)(a). Accordingly, it
    is not necessary to consider the merits of the application.

Disposition

[29]

The application is dismissed.

Gary
    Trotter J.A.


