In R. v. Manasseri, Watt J.A., sitting in chambers, held that the Court of Appeal for Ontario was the proper forum to hear the applicant’s application for release pending a re-trial. Watt J.A.’s decision provides a thorough overview of the principles for determining the appropriate forum for an application for interim release after an appellate court orders a new trial.

Background and application

The applicant was convicted of second degree murder in 2012. He appealed, and was released from custody pending the determination of the appeal. However, about a year later, the applicant was arrested for failing to comply with the terms of his recognizance and his release pending appeal was revoked.

The Court of Appeal allowed the applicant’s appeal and ordered a new trial in 2016. Subsequently, the applicant appeared before a pre-trial judge in the Superior Court, who fixed a trial date of October 10, 2017.

The applicant then brought an application at the Court of Appeal for release pending his re-trial. The Crown opposed the application, and argued that the applicant was in the wrong court. Specifically, while conceding that both the Superior Court and the Court of Appeal had jurisdiction, the Crown argued that the Superior Court was the proper forum for the application. The Crown also argued that the applicant did not satisfy the pre-conditions for interim release.

Watt J.A. rejected the Crown’s procedural and substantive arguments, and granted the application.

Governing principles for choosing the appropriate forum

Watt J.A. noted that s. 679(7.1) of the Criminal Code (the statutory provision governing release pending a new trial ordered by a court of appeal or the Supreme Court) does not distinguish between various stages of a proceeding following an order for a new trial. However, judicial decisions have developed principles relevant to the issue of forum, which Watt J.A. summarized as follows:

[40] Judicial decisions have interpreted the phrase “pending the new trial” to encompass two discrete time periods with implications for the forum in which the application for release is heard and determined. Those time periods are:

i. the time between the order for a new trial and the successful appellant's first appearance in the trial court; and

ii. the time between the first appearance in the trial court and the start of the new trial.

[41] In the first time period, a judge of the court of appeal has exclusive jurisdiction over release pending a new trial. In the second time period, a judge of the court of appeal and a judge of the trial court have concurrent jurisdiction over release pending a new trial.

[42] Where concurrent jurisdiction exists, court of appeal judges have often declined to hear the application [and have] transferred it to the trial court.

[43] Typically, in determining the most appropriate forum for the hearing and determination of the application, we reject any closed list of factors, as well as any single conclusive determinant. Relevant considerations include, but are not limited to:

i. the geographic location of the person, the proposed sureties, counsel and where necessary, witnesses;

ii. the nature of the hearing, including the reasonable necessity of the introduction of viva voce testimony;

iii. the issues in controversy;

iv. the anticipated length of the hearing;

v. the need for familiarity with the appellate record and the reasons provided for ordering a new trial;

vi. the relationship, if any, between the issue of release and the hearing and scheduling of the new trial;

vii. the review mechanism available to any party aggrieved by the decision;

viii. the nature of the record required for the hearing; and

ix. the timing of the hearing.

Principles applied

Watt J.A. concluded that the Court of Appeal was the proper forum for the application for five reasons:

  • An order of the Court of Appeal was the sole basis for the applicant’s continuing detention, and all recent bail proceedings on the only remaining charge against the applicant had been conducted at the Court of Appeal.
  • The Crown had failed to identify any evidentiary gap in the record available to the Court of Appeal for deciding the issues before it.
  • The Court of Appeal was more familiar with the evidence related to the prospects for re-conviction than a Superior Court judge would be.
  • The review mechanism available to an aggrieved party would be the same regardless of the forum in which the application was heard.
  • The Crown’s request to cross-examine the applicant and his sureties (a factor that favoured transferring the application to the Superior Court) did not carry much weight in this case, because it was a late-breaking request and had not been pursued seriously by the Crown.