R. v. Ibrahim,

• Jurisdiction: Manitoba
• Judge: Monnin, Cameron and Burnett, JJ.A.
• Neutral Citation: 2015 MBCA 62
• Citation: (2015), 319 Man.R.(2d) 200 (CA),2015 MBCA 62,327 CCC (3d) 86,[2015] MJ No 172 (QL),319 Man R (2d) 200,(2015), 319 ManR(2d) 200 (CA),319 ManR(2d) 200,319 Man.R.(2d) 200,[2015] M.J. No 172 (QL)
• Date: 23 March 2015
• Court: Court of Appeal (Manitoba)

R. v. Ibrahim (M.) (2015), 319 Man.R.(2d) 200 (CA);

      638 W.A.C. 200

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JL.011

Her Majesty The Queen (appellant) v. Mulata Ibrahim (accused/respondent)

(AR 14-30-08197; 2015 MBCA 62)

Indexed As: R. v. Ibrahim (M.)

Manitoba Court of Appeal

Monnin, Cameron and Burnett, JJ.A.

June 26, 2015.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking (the original charge) and released on a recognizance. After this initial release, he was charged on a number of occasions with both substantive offences and breaches of recognizance. He was subsequently released on various other recognizances. Thereafter, he was charged with a number of substantive offences as well as several counts of breach of recognizance. Pursuant to an administrative practice that had developed in the Provincial Court of Manitoba, the accused consented to revocation of all of his prior forms of release regarding all of the outstanding charges and, thereafter, did not apply for judicial interim release. Subsequently, the accused entered guilty pleas to a number of charges (including some charges of breaching his recognizance). He received a global sentence of 45 months' incarceration, 27 months of which was attributable to the original charge. The sentencing judge allocated all of the pre-sentence custody to the 27-month sentence. Applying a 1.5:1 ratio, he credited the accused with six months' pre-trial detention thereby leaving 21 months to be served on that count. The Crown appealed that part of the sentence.

The Manitoba Court of Appeal allowed the appeal and varied the sentence to 27 months incarceration minus credit for 109 days pre-sentence custody (i.e., on a 1:1 ratio).

Criminal Law - Topic 3319

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Vacating, cancelling or varying interim release or detention order - Section 524(8) of the Criminal Code set out a two stage process for revoking judicial interim release: (1) if the Crown showed that the accused had contravened his recognizance or that there were reasonable grounds to believe that he had committed an indictable offence after the recognizance was entered into, the recognizance would be cancelled and the accused detained in custody; unless (2) the accused showed cause why his detention was not justified - The Manitoba Court of Appeal interpreted s. 524(8) - The court held that an accused was detained pursuant to s. 524(8) when the judge granted the Crown's application for revocation of judicial interim release (i.e., revocation included a mandatory corresponding order of detention) - There was no requirement for an express order of detention after a show cause - See paragraphs 30 to 57.

Criminal Law - Topic 3319

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Vacating, cancelling or varying interim release or detention order - Section 524(8) of the Criminal Code set out a process for revoking judicial interim release - Section 713(3.1) of the Criminal Code provided that an accused could only be credited for pre-sentence custody at a rate of 1:1 when he or she had been detained for a breach of judicial interim release pursuant to s. 524(8) - The Manitoba Court of Appeal, per Cameron, J.A., concluded that "...  cancellation of a prior order of judicial interim release necessitates, by operation of law, an order of detention. Following an order of detention, an accused may choose to show cause why his or her release is justified on a reverse onus basis. I also find that the language of s. 719(3.1) requires an order of detention in order for it to become applicable. In my view, the current practice of referring to the revocation process as resulting in a revocation order which has historically included an order of detention, is confusing and does not properly reflect the language of the Code. The practice should end" - See paragraphs 7 and 8.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 713(3.1) of the Criminal Code provided that an accused could only be credited for pre-sentence custody at a rate of 1:1 when he or she had been detained for a breach of judicial interim release recognizance pursuant to s. 524(8) of the Criminal Code - The Manitoba Court of Appeal, in interpreting ss. 524(8) and 713(3.1), looked to the English and French versions - The court, per Cameron, J.A., stated that "In my view, the use of the word 'order' in both versions of s. 524(8) and the French version of s. 719(3.1) lead to the conclusion that the application of the provision requires an order of detention pursuant to s. 524(8). The use of the words 'detained in custody under subsection 524(4) or (8)' in the English version of s. 719(3.1) are not inconsistent with such an interpretation. Thus, in order to engage s. 719(3.1), an order of detention is required. The current practice of referring to a revocation order causes unnecessary confusion with respect to whether the order is merely cancelling judicial interim release or is intended to include an order of detention despite the fact that one necessarily follows the other. Therefore, the language of the Code should be used in both the s. 524(8) process and the s. 719(3.1) process" - See paragraphs 62 to 68.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused was charged with possession of cocaine for the purpose of trafficking and released on judicial interim release - While that charge was outstanding, the accused was charged with other offences and consented to revocation of his judicial interim release - On sentencing respecting the cocaine charge, the judge applied a 1.5:1 ratio in determining credit for pre-sentence custody - The Crown appealed, arguing that pursuant to s. 719(3.1) of the Criminal Code the accused could only be credited for pre-sentence custody at a ratio of 1:1 because he had been detained for a breach of judicial interim release under s. 524(8) of the Criminal Code - The Manitoba Court of Appeal allowed the appeal and awarded pre-sentence custody at a rate of 1:1 - The sentencing judge, inter alia, erred in law when he held that an order of detention pursuant to s. 524(8) could not be made absent a show cause hearing - In fact, the accused was detained in custody under s. 524(8) when his judicial interim release was revoked - See paragraphs 69 to 73.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See second Criminal Law - Topic 3319 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - Section 713(3.1) of the Criminal Code provided that an accused could only be credited for pre-sentence custody at a rate of 1:1 when he or she had been detained for a breach of judicial interim release recognizance pursuant to s. 524(8) of the Criminal Code - The Manitoba Court of Appeal, in interpreting ss. 524(8) and 713(3.1), looked to the English and French versions and read them together to determine Parliament's intention - See paragraphs 65 to 67.

Statutes - Topic 2418

Interpretation - Interpretation of words and phrases - General principles - "Should" and "shall" - The Manitoba Court of Appeal interpreted the word "shall" as it appeared in s. 524(8) of the Criminal Code - See paragraph 43.

Words and Phrases

Shall - The Manitoba Court of Appeal interpreted the word "shall" as it appeared in s. 524(8) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraph 43.

Cases Noticed:

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 12].

R. v. Rhodes (K.H.C.) (2013), 297 Man.R.(2d) 114; 2013 MBQB 248, refd to. [para. 16].

R. v. Parsons (G.J.) (1997), 161 Nfld. & P.E.I.R. 145; 497 A.P.R. 145; 124 C.C.C.(3d) 92 (Nfld. C.A.), refd to. [para. 28].

R. v. Le (T.D.) (2006), 205 Man.R.(2d) 41; 375 W.A.C. 41; 2006 MBCA 68, refd to. [para. 32].

R. v. McDougall (M.) (2014), 307 Man.R.(2d) 303; 2014 MBPC 35, not folld. [para. 36].

R. v. Cummer (S.D.L.) (2014), 304 Man.R.(2d) 152; 2014 MBQB 62, not folld. [para. 36].

R. v. Cook (J.G.) (2015), 319 Man.R.(2d) 217; 638 W.A.C. 217; 2015 MBCA 63, refd to. [para. 37].

R. v. G.M., 2014 MBPC 57, folld. [para. 39].

R. v. Chambers (D.F.) (2014), 362 B.C.A.C. 22; 622 W.A.C. 22; 2014 YKCA 13, folld. [para. 40].

R. v. Costain (W.) (2014), 364 B.C.A.C. 19; 625 W.A.C. 19; 2014 BCCA 458, refd to. [para. 56].

R. v. Major (1990), 76 C.R.(3d) 104 (Ont. Dist. Ct.), refd to. [para. 60].

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 62].

R. v. Dickson (W.A.) (2013), 294 Man.R.(2d) 103; 581 W.A.C. 103; 2013 MBCA 58, refd to. [para. 66].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 524(8) [para. 15]; sect. 719(3), sect. 719(3.1) [para. 12].

Authors and Works Noticed:

Alberta Provincial Court Pre-trial Coordination Protocol Adult Charges, generally [para. 20].

Canada, Hansard, House of Commons Debates, Sess. 2, 40th Parliament (April 20, 2009), p. 2418 [para. 63].

Hansard - see Canada, Hansard, House of Commons Debates.

Scollin, John H., Pre-Trial Release (1977), p. 73 [para. 44].

Trotter, Gary T., The Law of Bail in Canada (3rd Ed. 2010) (Looseleaf), c. 11-1 [para. 17]; c. 11-2 [para. 45].

Counsel:

J.A. Hyman and P.L. Piper, for the appellant;

S.A. Inness and J.L. Ostapiw, for the respondent.

This appeal was heard on March 23, 2015, before Monnin, Cameron and Burnett, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Cameron, J.A., on June 26, 2015.