Special Ideablawg Podcast Series Episode B: Code “Ch-ch-changes” in Section 2: Form Over Content? Changing Judicial Interim Release

In the last special podcast episode, I discussed what is already now changed under s. 2 and now I will discuss what will change as of December 18, 2019. As you can glean from the title of this podcast, judicial interim release is “a-changin’”. The first way this change is occurring is through s. 2 of the Code. These new amendments will add a number of judicial interim release terms to define the different ways an accused person can be releasedIn the last special podcast episode, I discussed what is already now changed under s. 2 and now I will discuss what will change as of December 18, 2019. As you can glean from the title of this podcast, judicial interim release is “a-changin’”. The first way this change is occurring is through s. 2 of the Code. These new amendments will add a number of judicial interim release terms to define the different ways an accused person can be released from custody while awaiting trial.

On December 18, 2019, the terms “appearance notice,” “recognizance,” “release order,” “summons,” and “undertaking,” will be defined by connecting each term with its pertinent Form number. This might provide clarity; the Forms themselves are detailed and when reviewed provide much information on the kind of release contemplated. It can be argued that by defining these terms through their Forms, we are providing a richer definition without creating an overly verbose one. Additionally, these terms are already defined under s. 493, which is the definition section for Part XVI on Compelling Appearance of Accused Before a Justice and Interim Release. It appears that this “change” is nothing more than a move uptown, so to speak. Instead of being definitions connected to a particular Part, these definitions will apply to the entire Code.

So, on the surface these amendments do not appear to make any real substantial changes. They do, however, raise my curiosity. It is curious that the definitions for these types of release mechanisms, even before the amendments, are not defined in any substantive way. I will explain.

The new definitions do not tell us what, for instance, an appearance notice is, other than defining it by its format, which is Form 9. The Forms appear at the end of the Criminal Code. Forms are also the subject of the last section in the Code, s. 849. Not all terms expressed by a Form are defined. For example, there is no definition of “Information,” but an Information is drafted pursuant to Form 2. By the way, there is very little resemblance between the Form 2 in the Code and an actual Information. Sure, the details required in Form 2 are found in an Information, but it really doesn’t look like the Form – there’s much more to it.

So, the Forms as definitions help but they do not tell you what an “Information” really is, which is the charging document that brings the matter into court. There are definitions of “Information” found outside of the Code. In Dowson v R, [1983] 2 SCR 144, Justice Lamer referenced just such a definition from Jowitt’s The Dictionary of English Law, London, Sweet & Maxwell Ltd., 1959, at p. 968. This dictionary is still available in its 4th edition but is a tad pricey at $1, 027.00. It would be much simpler for parliament to define it. In any event Jowitt, who was William Jowitt, the 1st Earl of Jowitt, defines Information as “Proceedings before justices of the peace in matters of a criminal nature are commenced by an information, which is a statement of the facts of the case made by informant or prosecutor, sometimes verbally, sometimes in writing, and either with or without an oath; when not upon oath, the information is said to be exhibited.” That definition goes a long way to understanding what an information is and what it does in the criminal justice system. It certainly provides much more information than merely saying an “information” means the document in Form 2.

In case you were curious, there is a definition of “indictment” but there is no Form for such a document. The Crown prosecutor has a free hand to draft an Indictment, although it would be circumscribed by the common law, case authority, and any internal guidelines.

Finally, let’s look at another Form that begs to be defined - Form 16, which is the Form for a Subpeona to a Witness. There is no definition of subpoena under s. 2 but there is a section in the Code, s. 700, which does explain the contents of a subpoena and does effectively define it. Well done! But, even “curiouser”, s. 700 does not reference Form 16!

But back to the amendments at hand. Section 2 will now define the following types of judicial interim release: “appearance notice” as a “notice in Form 9 issued by a peace officer; "recognizance" as Form 32 entered into before a judge or justice; "release order" as an order in Form 11 made by a "judge" as defined in section 493 or a justice; "summons" as a summons in Form 6 issued by a judge or justice or by the "chairperson" of a Review Board as defined in subsection 672.1(1); "undertaking" that “means, unless a contrary intention appears, an undertaking in Form 10 given to a peace officer.” This definition for “undertaking” is not overly helpful, although the previous definition under s. 493 was not either. The previous definition merely defines it as Form 11.1 or 12. The new definition defines undertaking as Form 10 “unless a contrary intention appears.” I have no idea what that phrase means and in the context of statutory interpretation I do not hesitate to suggest that this definition is not well drafted. I suppose we will need to wait until the “contrary intention” does in fact “appear.” In other words, we will know an undertaking when we see one. By the way, in case you were curious, “peace officer” is also defined under s.2, although they don’t tell us this in these new definitions.

Seeing these definitions, I immediately realize that “promise to appear,” a form of release presently available in the Code, is not defined. It is not defined as that form of release will no longer be available come December 18. This means a person charged with an offence can no longer promise to attend in court to be dealt with according to law. In my view, it is rather a sad day when a person’s word is no longer enough – but there you have it. An argument could of course be made that such a promise to appear is no longer needed as an accused person can simply be given an appearance notice, that carries no conditions like a promise to appear, except for the requirement the accused to attend court and, if applicable, attend for fingerprinting.

The result may be the same but there is something about trusting the person who is engaged by the criminal justice system that resonates with me. Trusting their promise to appear goes hand in hand with the presumption of innocence; that we are presuming they are law abiding citizens and we trust them to attend as required. The judicial system is also, in the nomenclature of “promise to appear,” obtaining the accused person’s trust; the accused person by promising to attend is putting themselves into the hands of the justice system – they too are trusting the rule of law.

These s. 2 additions are just a peek into the more substantive changes to the entire judicial interim release regime. These sections come much later in the Code, starting at s. 493 of the Code and considering I am only at s. 70 in my podcast Code journey, we still have a way to go before we dig into that issue.

One last comment. There is a final December s. 2 amendment involving the definition for “intimate partner.” This is not a new definition for the Code. Like the judicial interim release definitions, the term was defined elsewhere, under s. 110.1 of the Code, having been placed there in 2015 amendments. The definition specifically referenced weapon prohibition orders under ss. 109 and 110 where the offence involved “an indictable offence in the commission of which violence was used, threatened or attempted against” (see s. 109) an offender’s intimate partner. The term is defined as “current or former spouse, common-law partner and dating partner.” It is moved to s.2 for a reason; there are now new sections relating to “intimate partner” violence such as the special sentencing provisions under s. 718.3(8). This change, at least, makes sense and also re-defines the term slightly to make it more readable and understandable.

Next special podcast episode will continue the retro journey, as we look back at the podcast sections that have now changed in the Code.

 

Can R v Antic “Bail” Out The System? A 150th Birthday Wish

R v Antic is a welcome decision from the Supreme Court of Canada. No one can argue with a re-affirmation of what is at the core of our criminal justice system – the presumption of innocence. Justice Wagner neatly reminds us of the key role that the principle of fundamental justice has in our adversarial system. Indeed, one can argue that the presumption of innocence is at the very heart of our system and reflects a cherished societal value. That value is not just a “legal” one but a moral one as well. To presume people are essentially “good” is a comforting thought and one we should promote and celebrate. But, as recognized in the Antic decision, we tend to forget the “good.” This type of “reminder” is needed in the courts of law where justice is meted out in often chaotic circumstances. “Justice” happens in times when the court list seems endless and in circumstances where the parade of in-custody accused make it difficult to separate them into individuals. The Antic decision should make for a pause that is welcome.

Antic not only assists in humanizing the system but also in ensuring the courts, when faced with a heavy case load, are mindful of the authority it wields. The “ladder of liberty” approach the judicial interim release section creates is not something to be side-stepped or even two-stepped. Each rung must be deliberately weighed before proceeding onward and if a rung of the ladder feels “right,” if the weight placed on it works, then pursuant to section 515, the journey stops. It stops because reasonable bail is constitutionally guaranteed. It stops because the presumption of innocence is weighing in on the side of justice. It stops because it should.

 

Bail is complicated. If you ask any Provincial Court Judge what exactly they do day in and day out, they will tell you two things: bail and sentencing. The beginning and end, so to speak. These two procedures are the book ends of our justice system and without the proper use of them, the whole structure can fall and fail. In the post-Jordan fall-out, we need to be aware of these bookends and what a culture of complacency means as it relates to the proper administration of justice. Are we missing something then when we point fingers at trial delays or is it merely part of the heavy weight the system feels as it climbs up the rungs of the ladder.

 

Antic should then be a call to action for everyone. A call to be ever mindful of the underlying core values that push our justice system along and that make it an integral part of our unique Canadian democracy. In a few weeks, we will be celebrating our 150th year as a nation. We should at that time also be re-committing ourselves to the Charter values that define us and bring us together as a nation. This includes respect for the proper administration of justice through our commitment to make the system better for all those who walk its halls. This can and should be done by all stakeholders working together for, as Justice Wagner described it, an “enlightened criminal justice system.” Let’s take direction from the highest court and instead of resisting change, let’s make it happen. This is my birthday wish for Canada. Let’s blow out a candle and see it done.

The Cabbie and the Glider: A Tale of Two Bail Hearings

Two stories surfaced in Canadian legal news this week: the Montreal cab driver, charged after running down a man after he attacked his cab and the British Columbia hang glider operator charged after a woman he was flying with fell to her death.

The Montreal story went viral after a video was posted showing part of the altercation. It is shocking to see the cab driver bombarded by the mob but equally shocking to see his cab turn into the crowd and run down the victim. As heated as the incident was, the bail hearing appearance on May 2 was more so as an outraged group of cab drivers descended on the Montreal courthouse to lend support for the driver. The media picked up story after story from the crowd of cabbies, many of whom were immigrants, of humiliating and violent incidences of passenger misconduct involving racially motivated comments.

According to media reports, the 47 year-old cab driver of Haitian origins, Guercy Edmond, was released on a “promissory note”, with conditions, in the amount of $3,000.00. He was released on bail after a tongue lashing by Quebec Judge Jean-Pierre Boyer over the length of time the cabbie sat in custody (four days) and the crown attorney’s failure to review the video-tape, posted on YouTube of the altercation. He faces charges of aggravated assault under section 266 of the Criminal Code, assault with a weapon (presumably the cab) under s. 267, failing to stop at the scene of an accident under section 252, and dangerous driving causing bodily harm pursuant to s. 249(3).

By way of explanation, our criminal law system, based upon the English common law tradition, presumes an accused will be released from custody without conditions. This bail presumption is very much connected to our cherished presumption of innocence: upon arrest, the accused is presumed innocent until proven otherwise by the crown prosecutor in a court of law before an impartial and independent judiciary. The bail presumption is also consistent with our Charter rights: section 11(d), which constitutionally protects the presumption of innocence, section 11(e), which gives the accused the right not to be denied reasonable bail without just cause, and particularly the s. 7 right to liberty, which cannot be deprived except in accordance with our principles of fundamental justice. On this basis, the bail procedures in the Criminal Code require unconditional release. For example, section 515(1) of the Criminal Code states that:

Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions

Any decision contrary to this fundamental principle of release can only be done in very restrictive circumstances. However, there are exceptions to the general rule, where the presumption is not for release (also known as a “reverse onus” situation where the accused must “show cause” why detention in not required), for more serious offences such as murder (section 469 offences) or for those accused already on a prior form of release.

Consistent with our desire to protect the innocent, section 503 of the Criminal Code requires an accused, who is not released upon arrest, to be brought before a justice of the peace or provincial court judge for a bail hearing within 24 hours of arrest without unreasonable delay or as soon as practicable. In Alberta, due to a “promise” made by Ralph Klein when he was Premier, there are 24-hour bail hearings available. In any event, once brought before a judge, the Code does permit a bail hearing to be adjourned for a maximum of three days without the consent of the accused. Thus, Mr. Edmond, who was arrested on Sunday, April 29, appeared before a judge, within twenty-four hours of his arrest, on Monday, April 30. At that time, the hearing was adjourned within the three-day time limit, without requiring consent of the accused, to Wednesday, May 2.

In Mr. Edmond’s case, the crown was objecting to his release from custody. Our criminal law requires an accused to be released from custody unless there are cogent reasons not to release the accused. If, as in the case of Mr. Edmond, the Crown objects to release, the Crown must “show cause” or justify why the accused should not be released. In fact, even if the accused is released, the crown must also “show cause” why conditions to that release would be required.

There are three grounds for detention under s. 515 (10) of the Criminal Code. Section 515(10)(a) requires the justice to order detention where it is necessary in order to ensure the accused’s attendance in court. Section 5151(10)(b) requires a detention order where it is necessary for the “protection or safety of the public” including a substantial likelihood the accused would commit further offences or interfere with the administration of justice. The last ground deems detention is necessary to “maintain confidence in the administration of justice.” This last ground requires the justice to consider evidence relating to the strength of the crown’s case, the seriousness of the offence, the circumstances surrounding the offence, and the potential sentence to be imposed upon conviction.

On this basis, clearly, Mr. Edmond, who had no prior criminal record, enjoyed the support of his family and peers, was the financial support for his wife and two teenagers, and who allegedly committed the offences in extreme circumstances, would be an excellent candidate for release. In other words, the crown would be hard pressed to justify his detention. This is the reason why the judge was less than impressed with the prosecutor at the time of the bail hearing: there was no justifiable legal reason why the crown should not have consented to the release of Mr. Edmond. Although the police, in certain circumstances, also have the authority to release an accused from the police station, the charges laid against Mr. Edmond were serious enough to require his attendance before a judge. Mr. Edmond is to appear in court, to set a date for trial, on June 20.

Just a note here on the form of Mr. Edmond’s release. According to the media reports, Mr. Edmond was released on a “promissory note,” which is not one of the authorized forms of release under the Criminal Code. Again, due to the presumption in favour of release without conditions, the forms of release available run from the least restrictive to the most restrictive. The least restrictive form of release is known as an “undertaking,” with or without conditions. This release, also known as a Form 12 release, is a document signed by the accused wherein the accused “undertakes” to attend court on a particular date and time. If there are conditions, such as reporting to a police officer or remaining in a particular jurisdiction, they are listed on the signed form as well. The next form of release, more restrictive than an undertaking, is a recognizance. A recognizance requires the accused to acknowledge a debt to the Crown, which is forfeited if the accused fails to appear in court. The amount is specified in the document and may or may not require the amount to actually be deposited with the court. A recognizance may also require a surety, who is a third party willing to ensure the accused appears in court and follows any release conditions. A surety may also be required to acknowledge a debt to the crown, which may be forfeited if the accused breaches bail. Considering Mr. Edmond was released with a monetary amount ($3000) attached, most likely the form of release was a recognizance with no sureties and no deposit.

One of the conditions of Mr. Edmond’s release requires him to not pick up fares on St. Laurent Blvd. between Sherbrooke and St. Joseph Sts. between 9 p.m. and 6 a.m., which is within the same area in which the incident occurred. According to the evidence read into court, before the events before the video recorded the altercation, started in the cab after Edmond picked up “very drunk” passengers, one of who was the victim, Benoit Kapelli. While in the cab, Edmond was subjected to racially motivated comments and was assaulted by Kapelli, who ultimately left the cab while kicking at the vehicle. Edmond confronted Kapelli, but the other passengers joined in the attack of the cab. Edmond was able to drive away but was still tracking the passengers as they walked. At this point, the explanation for the events become vague as Edmond’s cab either deliberately or accidently swerved into a lamppost close to Kapelli, resulting in the cab’s front fender falling off. Later, as seen in the video, a pedestrian throws the bumper at the cab. Again, watch the video here to see the final moments of the incident.

The hang glider’s fate was not so certain as the Judge adjourned his bail hearing to Friday, May 4 in anticipation of gathering more evidence. The evidence, of course, is actually inside the accused, William Jonathon Orders, who swallowed the crucial memory card capturing a video of the fatal flight. As they say “this too will pass” and with the passing it is likely Mr. Orders will then be released on bail. Mr. Orders is charged with willfully attempting to obstruct the course of justice pursuant to s. 139 of the Code for his attempt to hide the evidence from police investigation. No doubt further charges, such as criminal negligence or even manslaughter, will ultimately be laid, when the physical swallowed evidence is finally retrieved.