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Criminal - Bail. R. v. I.H.
In R. v. I.H. (Ont CA, 2026) the Ontario Court of Appeal allowed a CC 680 bail review, here wrt a "young person" under the YCJA:(1) The Bail Judge Had Jurisdiction Over the Murder Charge
[7] The applicant is a “young person” within the meaning of s. 2 of the YCJA. A young person’s judicial interim release must be decided by a youth justice court judge or justice from the relevant provincial or territorial court of justice: YCJA, s. 29. This general rule is subject to an exception for offences listed in s. 469 of the Criminal Code, such as murder: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 38(3); YCJA, s. 13(1).
[8] Section 33(8) of the YCJA provides that if a young person seeking release is charged with an offence referred to in s. 522 of the Criminal Code, “a youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section” (emphasis added). Accordingly, we look to s. 522 of the Criminal Code, which refers to individuals charged with an offence enumerated under s. 469 of the Criminal Code. Murder is an enumerated offence under s. 469. In other words, in circumstances where the young person has been charged with an offence referred to in s. 522 of the Criminal Code (which incorporates s. 469 offences), only a youth court judge has jurisdiction to grant release.
[9] One key distinction between youth and adult criminal courts is that young persons typically do not have the right to elect their mode of trial when prosecuted by indictment. However, s. 67 of the YCJA grants a young person this option in specific situations – one of which applies when a young person is charged with murder: YCJA, s. 67(1)(c).
[10] In this case, the applicant elected to be tried in the Superior Court of Justice composed of a judge and jury, although I have been informed that he may re-elect to be tried by a judge alone. Regardless, it was this election to proceed in the superior court that vested the superior court judge with jurisdiction over the murder charge by operation of ss. 13(2) of the YCJA. Both ss. 13(2) (without a jury) and 13(3) (with a jury) allow for a superior court judge to be deemed a “youth justice court judge” and the superior court to be deemed a “youth justice court for the purpose of the proceeding”. Both ss. 13(2) and 13(3) are triggered only when the young person elects their mode of trial in the superior court. Prior to this election being made, the superior court is not deemed a “youth justice court”. The superior court only gains jurisdiction through the young person’s election.
[11] In T.J.M., the Supreme Court of Canada provided clarity on this matter, ruling that in cases involving s. 469 offences, where a young person chooses to be tried in the superior court, both the provincial and superior courts share concurrent jurisdiction over the bail proceedings by virtue of ss. 13(2) and (3) of the YCJA: T.J.M., at paras. 9, 21-25. Without this election, the superior court gains no jurisdiction over the murder charge and the bail hearing must proceed in the Ontario Court of Justice.
[12] Accordingly, the superior court judge who denied bail in this case was deemed by virtue of the applicant’s election to be a youth justice court judge for purposes of the murder charge. He could therefore exercise jurisdiction in relation to the bail hearing for that charge.
(2) The Bail Judge Had No Jurisdiction Over the Six Unrelated Counts
[13] The bail judge also purported to exercise jurisdiction in relation to the six unrelated counts scheduled to proceed to trial in the Ontario Court of Justice. While the bail judge purported to exercise jurisdiction under s. 525 of the Criminal Code, the section that governs 90-day detention reviews, he had no jurisdiction to do so. My conclusion on this jurisdictional point leans on the helpful decision of Ellies R.S.J. in R. v. G.G., 2022 ONSC 6023.
[14] Section 14(1) of the YCJA grants youth justice courts exclusive jurisdiction over offences alleged to have been committed by a young person and that person must be dealt with as provided for in the YCJA. Returning to s. 13(1) of the YCJA, a youth justice court judge is defined as a judge sitting in a court established as a youth justice court. As before, in Ontario, the Ontario Court of Justice has been established for this purpose: CJA, s. 38(3).
[15] The applicant did not have the right to an election in relation to the other offences with which he was charged: YCJA, s. 67(1). Accordingly, those matters will be tried in the Ontario Court of Justice constituted as a youth justice court. Only the murder charge will be tried, by virtue of the applicant’s election, in the Superior Court of Justice deemed a youth justice court for purposes of the murder trial.
[16] Section 30.1 of the YCJA modifies s. 525 of the Criminal Code for young persons: if a young person is charged with an offence being prosecuted by summary conviction, they shall receive a detention review within 30 days instead of 90 days. Young persons charged with an indictable offence remain eligible for review within 90 days. As noted above, a superior court lacks jurisdiction over a young person’s detention or release unless two conditions are met: (1) at least one of the circumstances in s. 67 of the YCJA applies, and (2) the young person elects to be tried in the superior court. Until these prerequisites are satisfied, the superior court cannot conduct a detention review under s. 525 of the Criminal Code.
[17] Therefore, I conclude that the bail judge exceeded his jurisdiction when purporting to dismiss the application for release on the offences that will be proceeding to trial in the Ontario Court of Justice and are outside the reach of the deeming provisions in ss. 13(2) and (3) of the YCJA.
[18] One might wonder why this jurisdictional point is important given that it would have been open to the bail judge, in any event, to consider the facts underlying the non-murder counts as part of his decision as to whether to release on the murder charge. As will become clear in these reasons, the jurisdictional point is only important to remedy. As I will explain, pursuant to s. 680(1) and (3) of the Criminal Code, the bail judge’s decision must be set aside. I would order the applicant’s release, but only on the murder charge over which the bail judge had jurisdiction. In relation to the other counts, a youth justice court judge or justice presiding in youth court at the Ontario Court of Justice, must decide that bail application.
(3) This Court’s Jurisdiction Under Section 680 of the Criminal Code
[19] Pursuant to s. 33(9) of the YCJA, a decision made by a youth court judge pursuant to s. 33(8) of the YCJA and s. 522 of the Criminal Code, is reviewable pursuant to s. 680 of the Criminal Code. This is the s. 680 review pertaining to the interim release on the murder charge in this case.
[20] Section 680(1) of the Criminal Code involves a two-stage procedure.
[21] The first stage involves a preliminary assessment by the Chief Justice (or acting Chief Justice) as to whether a bail review should take place. In determining that question, consideration should be given to whether it is “arguable” that the bail judge committed “material errors of fact or law in arriving at the impugned decision, or that the impugned decision was clearly unwarranted in the circumstances”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 64. This first stage has been described as akin to a motion for leave to appeal, “intended to weed out cases with no realistic possibility of success”: R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 41. If there is a realistic chance of success if a review were to be ordered, then a panel will review the matter. Ultimately, s. 680(1) allows a panel of this court to confirm, vary, or substitute the bail decision for another one that, in its opinion, should have been made.
[22] On consent of the parties, the powers of the court may be exercised by a single judge of the court: Criminal Code, s. 680(2). That consent has been provided in this case. Accordingly, both stages of review are before me.
[23] To avoid repetition, these reasons focus on the second stage of the analysis. This is because, as will become clear in the second-stage analysis, the first stage is easily passed.
[24] In light of this conclusion, I focus upon and apply the standard of review set out in Oland, at para. 61:Ultimately, in my view, a panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [Emphasis added.] ....
[58] Fresh evidence can be received on a s. 680 application. The reception of this evidence may at times stem from dynamic changes in the strength of the Crown’s case during the period of a person’s detention: R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, at para. 92. Fresh evidence can be received where it is relevant and potentially material to the outcome. There should also be a reasonable explanation for the failure to present the evidence at first instance: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 132; R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at paras. 52-53. . R. v. Kuang
In R. v. Kuang (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, this brought against convictions for "assault (Criminal Code, R.S.C. 1985, c. C-46, s. 266), assault causing bodily harm (s. 267(b)), break and enter (s. 348(1)(b)), and two counts of threatening to use a weapon (s. 267(a))".
Here the court considers whether any duty lay on counsel to arrange bail surety:[50] The appellant also appears to criticize trial counsel for not sourcing or locating a suitable surety. But that is not the role of counsel; it is up to the client or the client’s family to identify potential sureties.
[51] The appellant relies on the fact that he was released on bail, with a surety, after the close of the evidence at trial. The surety was a family friend. Presumably, had that person been identified earlier, the appellant’s release may have been secured. However, the appellant offers no explanation as to why this person was not identified to act as surety earlier.
[52] I accept that a different lawyer may have run a bail hearing without a surety and offered a sizeable cash bail. But it is impossible to know whether that would have been successful.
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