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COMPELLING APPEARANCE, DETENTION AND RELEASE

Wednesday, February 14, 2018 @ 8:42 AM  


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Appeal by the accused from a decision finding that s. 515 judicial release provisions of the Criminal Code were applicable to s. 810.2 peace bond proceedings and that a show cause hearing should have been conducted on the Crown’s request to show cause why the appellant ought to have been detained or released on conditions. An RCMP officer laid an Information against the appellant under s. 810.2 of the Criminal Code alleging that the officer had reasonable grounds to believe that the appellant would commit a serious personal injury offence upon his release from prison and sought to have him bound to enter into a recognizance with conditions. Upon the officer swearing the Information, a judge issued a warrant for the appellant’s arrest but the arrest warrant was never executed. However, a couple of days before the appellant was due to be released from custody, he was escorted by an RCMP officer from jail to court where he appeared before a judge to respond to the Information. At the appearance the Judge set a date for a merits hearing, which date was after the date of the appellant’s scheduled release from prison. The Crown then requested the opportunity to show cause why the appellant ought to be required to sign an undertaking with conditions pursuant to the judicial interim release provisions of s. 515 of the Code pending the merits hearing. The judge denied the Crown’s request, saying he did not have the jurisdiction to subject the appellant to a show cause hearing because the judicial release provisions of the Code did not apply to a section 810.2 Information. On a certiorari application by the Crown, a Justice held that s. 515 provisions of the Code applied to a s. 810.2 Information and that a show cause hearing should have been held.

HELD: Appeal allowed. A judge was not authorized to compel the appearance of a defendant to a section 810.2 Information by issuing a warrant of arrest. The section 515 judicial interim release provisions of the Code did not apply to proceedings respecting section 810.2 Information. Parliament expressly provided that a judge did not have the power to arrest a defendant to a s. 810 or 810.1 peace bond Information. There was no reference to s. 810.2 in section 507.1. The provisions respecting compelling appearances were inconsistent with the peace bond provisions of the Code. Subjecting a defendant to a s. 810.2 Information to arrest and detention and a show cause hearing with the potential for further detention or restrictions on his or her liberty did not reconcile the provisions, objectives, and scheme of the peace-bond provisions of the Code with a result that was perceived to be fair and just in the particular circumstances. The modifications to the language of ss. 515 and 507 of the Code required to enable a justice to subject a defendant to a section 810.2 peace bond proceedings to a show cause hearing were substantial and well beyond the substitutions of detail envisioned by the language in ss. 810 and 795 and would effectively alter the law respecting the power of arrest.

R. v. Penunsi, [2018] N.J. No. 13, Newfoundland and Labrador Court of Appeal, J.D. Green C.J.N.L., C.W. White and L.R. Hoegg JJ.A., January 19, 2018. Digest No. TLD-Feb122018006