R. v. Rhodes (K.H.C.), (2013) 297 Man.R.(2d) 114 (QB)

• Judge: Mainella, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 21, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 297 Man.R.(2d) 114 (QB);2013 MBQB 248

R. v. Rhodes (K.H.C.) (2013), 297 Man.R.(2d) 114 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.025

Her Majesty The Queen v. Kenneth Howard Cecil Rhodes (accused)

(CR 08-15-00316; 2013 MBQB 248)

Indexed As: R. v. Rhodes (K.H.C.)

Manitoba Court of Queen's Bench

Thompson Centre

Mainella, J.

October 21, 2013.

Summary:

The accused was convicted of sexual assault. He appealed.

The Manitoba Court of Appeal, in a decision reported at [2011] Man.R.(2d) Uned. 87, allowed the appeal and ordered a new trial. The accused was granted judicial interim release. Before a verdict had been handed down in the accused's re-trial, he was convicted of breaching a release condition.

The Manitoba Provincial Court, in a decision not reported in this series of reports, declined to conduct a revocation hearing pursuant to ss. 524(3)(b) and 524(8) of the Criminal Code.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 295 Man.R.(2d) 29 and indexed as R. v. Rhodes (K.), convicted the accused of sexual assault. The Crown brought a motion to have the accused's judicial interim release revoked pending his sentencing.

The Manitoba Court of Queen's Bench granted the motion.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 3301

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary for protection of public (i.e., secondary ground) - [See third Criminal Law - Topic 3319 ].

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) - [See third Criminal Law - Topic 3319 ].

Criminal Law - Topic 3307.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions - Breach of - [See third Criminal Law - Topic 3319 ].

Criminal Law - Topic 3310.2

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending new trial following overturned conviction - [See second Criminal Law - Topic 3317 ].

Criminal Law - Topic 3311

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Power of Court of Appeal - [See second Criminal Law - Topic 3317 ].

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - [See first and second Criminal Law - Topic 3319 ].

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - Rhodes appealed his conviction for sexual assault - The Court of Appeal allowed the appeal, ordered a new trial, and granted Rhodes judicial interim release pursuant to s. 679(7.1) in Part XXI of the Criminal Code - Before the conclusion of his re-trial, Rhodes was convicted of breaching a release condition - A provincial court judge declined to conduct a revocation hearing - Rhodes was convicted of sexual assault - The Crown moved to vacate the order granting Rhodes' judicial interim release pursuant to s. 523(2) in Part XVI of the Code - Defence counsel argued that the court lacked jurisdiction to vacate the order made by the Court of Appeal because such an order was made under Part XXI of the Code rather than Part XVI - The Manitoba Court of Queen's Bench rejected defence counsel's argument - Section 679(7.1) deemed an order of release pending a new trial to be, in law, the same in effect as one made under ss. 515 or 522 just after an accused was first charged with an offence - The authorities were clear that when an accused made a first appearance after the order of a new trial, the regular rules under Part XVI applied - Section 679(7.1) gave the Court of Appeal exclusive jurisdiction to release an accused pending trial only until the accused first appeared back in trial court - Thereafter, the Court of Appeal and trial court had concurrent jurisdiction - See paragraphs 50 to 54.

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - Rhodes appealed his conviction for sexual assault - The Court of Appeal allowed the appeal, ordered a new trial, and granted Rhodes judicial interim release - Before the conclusion of his re-trial, Rhodes pled guilty to breaching a release condition - A provincial court judge declined to conduct a revocation hearing - Rhodes was convicted of sexual assault - The Crown moved to vacate the order granting Rhodes' judicial interim release pursuant to s. 523(2) of the Criminal Code - The motion was adjourned at the request of defence counsel - The trial judge was subsequently unable to hear the motion for scheduling reasons - The Manitoba Court of Queen's Bench held that it had jurisdiction to hear and decide the motion given the unavailability of the trial judge, and the wording of s. 523(2)(a) as a member of the "court" before which the accused was currently being tried - See paragraph 58.

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 - Rhodes appealed his conviction for sexual assault - The appeal was allowed and a new trial ordered - Rhodes was granted judicial interim release - Before the conclusion of his re-trial, Rhodes pled guilty to breaching a release condition - The Crown applied to have Rhodes' judicial interim release revoked - The provincial court judge acknowledged that he had jurisdiction but declined to conduct a revocation hearing, stating that it was his practice to defer revocation to the trial judge - Rhodes was convicted of sexual assault - The Crown moved to vacate Rhodes' judicial interim release, arguing that the provincial court judge erred in declining to hear the revocation application - The Manitoba Court of Queen's Bench granted the motion - Section 524(3) of the Criminal Code required the provincial court judge to assess whether to proceed with a revocation hearing - Here, the judge provided no lawful reason to decline to hear the Crown's application - His practice was illegal and contrary to the wording of the Code - The Crown's revocation application should have proceeded at the same time that the provincial court judge dealt with Rhodes' breach of recognizance offence - The provincial court judge had the legal duty to reconsider the propriety of Rhodes' continuing release in light of the breach to which he pled guilty - See paragraphs 32 to 37.

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 - The Manitoba Court of Queen's Bench discussed the procedure to be followed in applications to revoke an accused's judicial interim release under s. 524 of the Criminal Code - At stage one of a revocation hearing, the issue was whether to make a finding of misconduct - When an allegation of misconduct was sufficiently proven, cancelling of the accused's form of judicial interim release was mandatory, not discretionary - If the Crown was successful at stage one, the issue at stage two was whether the accused could show cause that he should be released on a new form of judicial release - If the court found that there was no misconduct, then the accused was to be released from custody on the conditions of his judicial release previously set - The original document that the Crown sought to have cancelled did not have to be physically present before the court in order for it to proceed with a revocation hearing - The court could proceed with a copy of the form of judicial release or such other proof of the form that was credible or trustworthy in the circumstances - A court should not delay or refuse to hold a revocation hearing based on the fact that the charges were before another court - See paragraphs 38 to 48.

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 - Rhodes appealed his conviction for sexual assault - The appeal was allowed and a new trial ordered - Rhodes was granted judicial interim release - Before the conclusion of his re-trial, Rhodes pled guilty to breaching a release condition (public intoxication) - A provincial court judge declined to conduct a revocation hearing - Rhodes was convicted of sexual assault - The trial judge determined that Rhodes was under the influence of alcohol when he took advantage of the intoxicated victim in an isolated area - Rhodes engaged in digital penetration, vaginal and anal intercourse, and cunnilingus, all without the victim's consent - The victim attempted to knock herself unconscious during the assault so that she would not feel pain - She escaped by running half-naked into the woods - The Crown moved to vacate the order granting Rhodes' judicial interim release, arguing that the facts of the sexual assault coupled with the conviction for breaching a release condition constituted cause within the meaning of s. 523(2)(a) of the Code to vacate Rhodes' order of judicial interim release and order his detention pending sentencing - The Manitoba Court of Queen's Bench granted the motion - The Crown succeeded in demonstrating a material change in circumstance that justified vacating the release order - The previous terms of judicial release were no longer adequate to ensure the protection or safety of the public - Given the nexus between alcohol and the sexual assault, the breach of the release condition was serious - Given the absence of a credible "bail plan", Rhodes' detention was necessary to maintain confidence in the administration of justice - See paragraphs 59 to 71.

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 - [See second and third Criminal Law - Topic 3317 ].

Cases Noticed:

R. v. Le (T.D.) (2006), 205 Man.R.(2d) 39; 375 W.A.C. 39; 2006 MBCA 42, refd to. [para. 1].

R. v. Geddes (J.G.J.) (2012), 280 Man.R.(2d) 39; 548 W.A.C. 39; 2012 MBCA 31, refd to. [para. 8].

R. v. Kinger (1982), 35 A.R. 522; 65 C.C.C.(2d) 483 (C.A.), refd to. [para. 20].

R. v. Fisher (A.N.) (2013), 287 Man.R.(2d) 250; 2013 MBQB 40, refd to. [para. 24].

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79; 1985 ABCA 218, refd to. [para. 29].

R. v. Yarema (1991), 53 O.A.C. 387; 64 C.C.C.(3d) 260 (C.A.), refd to. [para. 35].

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. 38].

R. v. Le (T.D.) (2006), 205 Man.R.(2d) 41; 375 W.A.C. 41; 2006 MBCA 68, refd to. [para. 38].

R. v. Ramage (2011), 273 C.C.C.(3d) 331; 2011 ONSC 3092, refd to. [para. 39].

R. v. Major (1990), 76 C.R.(3d) 104 (Ont. Dist. Ct.), refd to. [para. 40].

R. v. Martel (1982), 38 A.R. 177 (N.W.T.S.C.), refd to. [para. 47].

R. v. Barbeau (1998), 131 C.C.C.(3d) 350 (Que. C.A.), refd to. [para. 52].

R. v. Ranger (R.) (2003), 180 O.A.C. 138 (C.A.), refd to. [para. 53].

R. v. Vincent (W.), [2008] O.A.C. Uned. 685; 2008 ONCA 76, refd to. [para. 53].

R. v. Klymchuk (K.), [2007] O.T.C. Uned. 820; 220 C.C.C.(3d) 439 (Sup. Ct.), refd to. [para. 54].

R. v. Fleming (D.P.) (1999), 183 Nfld. & P.E.I.R. 166; 556 A.P.R. 166; 141 C.C.C.(3d) 391 (Nfld. C.A.), refd to. [para. 54].

Kipp v. Ontario (Attorney General), [1965] S.C.R. 57, refd to. [para. 57].

R. v. Johal (B.) et al., [1995] B.C.T.C. Uned. 578 (S.C.), refd to. [para. 59].

R. v. Prete, [1987] O.J. No. 2480 (Sup. Ct.), refd to. [para. 59].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 523(2) [para. 49]; sect. 524(3) [para. 26]; sect. 679(7.1) [para. 5].

Authors and Works Noticed:

Trotter, Gary T., The Law of Bail in Canada (3rd Ed. 2010) (Looseleaf), ss. 11.4(a) [para. 32]; 11.4(c) [para. 47].

Counsel:

David N. Gray, for the Crown;

Rodrigue Guay, for the accused.

This motion was heard before Mainella, J., of the Manitoba Court of Queen's Bench, Thompson Centre, who delivered the following judgment on October 21, 2013.