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COMPELLING APPEARANCE, DETENTION AND RELEASE - Judicial interim release or bail - Review of

Tuesday, May 02, 2017 @ 6:56 AM  


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Appeal by the accused, Passera, from refusal of a writ of habeas corpus with certiorari in aid. In August 2014, the accused was arrested for importing cocaine. She was convicted at trial and detained pending sentencing. On the date of sentencing, the accused filed a constitutional challenge in respect of the provisions governing credit for time served. Prior to the hearing of the constitutional challenge, and approximately 26 months after her initial arrest, the accused applied for judicial interim release. The accused relied upon s. 523(2)(a) of the Criminal Code in seeking to vacate her detention order and permit her release pending the completion of trial upon imposition of sentence. The trial judge dismissed the application on the basis the accused failed to show cause why her detention was not justified on the tertiary ground. Two months later, the accused applied for prerogative relief seeking her release with declaratory relief that the absence of a review mechanism breached her ss. 7 and 9 Charter rights. The application judge denied the relief sought. The accused appealed.

HELD: Appeal dismissed. The application judge did not err in finding the Superior Court lacked inherent jurisdiction to review a s. 523(2)(a) detention order or in failing to consider the availability of habeas corpus to determine the legality of the detention in light of the absence of a statutory review mechanism. The absence of a review mechanism for a s. 523(2)(a) detention was a deliberate legislative choice given the other review mechanisms embedded in the bail process. Additionally, the absence of recourse to inherent jurisdiction was consistent with the well-established principle of leaving management of trial proceedings to the trial judge. The application judge did not err in failing to find that the accused's detention was without just cause. The present case was not an exceptional case warranting prerogative relief.

R. v. Passera, [2017] O.J. No. 1874, Ontario Court of Appeal, D. Watt, K.M. van Rensburg and G.I. Pardu JJ.A., April 13, 2017. Digest No. TLD-May12017005