Supreme Court

R. v. Poitras, 2003 NWTSC 22
Date: 20030411
Docket: S-l-CR-2003000015

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


AUGUST DARREN POITRAS


Transcript of a Ruling on a Bail Review delivered by The Honourable Justice J.Z. Vertes, in Yellowknife, in the Northwest Territories, on the 10th day of April, A.D. 2003.


APPEARANCES:

Mr. N. Sinclair:   Counsel for the Crown

Mr. B. Enge:   Counsel for the Defence


Charges under ss. 267(a) C.C. x 2, 264.1(1) C.C.


THE COURT:   Mr. Poitras is facing trial on three charges: two charges of assault with a weapon and one charge of uttering a threat. All charges allegedly arose on February 8th, 2003. His trial was originally set to take place In March. At that time some Crown witnesses did not appear, and the trial was adjourned, peremptory on the Crown, to be heard by the Territorial Court on May 5th.

In a hearing before the Justice of the Peace in Hay River on February 14th, Mr. Poitras was remanded in custody and, by my review of the transcript, it is evident that the Justice of the Peace was satisfied that there was cause to detain Mr. Poitras in custody, both on the primary ground and on the secondary ground.

The one curious point about the previous hearing is that it also appears that the Justice of the Peace contemplated that the question of bail would be spoken to when the accused made his first appearance in Territorial Court on February 17th. I say that because, in the transcript, the Justice of the Peace says: “I'm going to remand you in custody to the February 17th court date for first appearance. At that time you could argue, if you wish, before the Territorial Court whether you should be released.” As far as I am aware, nothing was done with respect to the question of bail in the Territorial Court, and of

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contemplated in ss. 520 and 521 of the Criminal Code is really a hybrid one in the nature of a fresh hearing as well as a review of the record before the justice. Since there is an obligation on the applicant (whether it is the prosecutor or the accused) to “show cause”, the reviewing judge must give due consideration to the decision of the justice and not substitute his or her discretion for that of the justice unless it appears that the justice has exceeded his or her jurisdiction, made an error in law or erred in his or her appreciation of the facts or the proper inferences to draw from the proven facts. However, because the reviewing judge is entitled to hear such additional evidence or exhibits as may be tendered” by the accused or the prosecutor, the decision of the justice should be examined in the light of any new evidence, and therefore in this sense it is a hearing de novo.

That view was expressed judicially by Justice Salhany in a case called McCue and the Queen, a 1998 decision of the Ontario Court at 130 C.C.C. (3d) 90. It is similar to an opinion I expressed in Caza at 1999 N.W.T.J. 73. But, as I say, it is not one universally held. There are cases that suggest that it should be strictly an appeal; there are cases that adopt a more de novo approach. I think the only safe thing to say is that the state of the law across

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control his movements, and that there should be no concern about his not appearing for trial. The other point is that, the Crown's witnesses having failed to appear the first time, it is highly unlikely that they will appear the next time, and even if they do, all that may likely happen is that they will recant their evidence because there is hearsay evidence to the fact that these complainants do not wish to press ahead with these charges.

With respect, I think that confuses the point of a bail hearing. That argument may be quite cogent, if true and if grounded on evidence. That argument may be quite cogent to counter some argument that the Crown may wish to base on the tertiary ground as to the strength of the Crown's case for example, but it really does not go to either the primary or secondary ground.

As counsel are well aware, the Criminal Code sets out three specific criteria, and only three criteria, to justify an accused person's detention in custody prior to trial. There is the primary ground as to a concern about the accused not appearing for trial; there is the secondary ground which deals with a concern for public safety and protection and a fear of the accused committing further offences; and there is the tertiary ground which relates to the public's perception and confidence in the administration of

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terms of the primary ground, I think there probably could be sufficient restrictions placed on the accused and, with his parents coming forward as sureties, to assure his appearance in court.

In my view, I think clearly there are grounds under the secondary ground justifying the accused's continued detention. He has been convicted of 38 offences since 1985. He has been sentenced to dispositions of fines, probation, incarceration, including periods in the penitentiary. He has committed crimes of violence. He has committed crimes of breaching court orders. In my opinion, there is ample evidence justifying detention under the secondary ground.

I note as well that the trial is merely four weeks away, and certainly under any evaluation it cannot be said that there has been undue delay which should impact significantly on the question of continued detention.

For those reasons, the application is dismissed. The accused will be detained in custody pending his trial.

MR. SINCLAIR:  Has Your Honour considered your willingness to impose an order under section 515(12) preventing communication between the accused and any witness or complainant in this matter?

THE COURT:   I don't see a foundation for

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Certified to be a true and accurate transcript, pursuant to Rule 723 and 724 of the Supreme Court Rules of Court

Annette Wright, RPR, CSR(A)
Court Reporter

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