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| John L. Hill |
The factual background giving rise to this dispute can be summarized as follows: S.H. had been convicted and sentenced to seven years' imprisonment for sexually assaulting and uttering death threats to his two stepdaughters, both younger than 14. The Ontario Court of Appeal overturned his conviction and ordered a new trial. On October 24, 2024, an Appeal Court judge allowed S.H. to be freed while awaiting trial, but he was not to be in the company of children under the age of 16.
On Jan.18, 2025, the respondent was found living with his son and three grandchildren, including a young girl. That girl was underage, and if the release order was valid, S.H. would be in breach of his bail condition. The police thought otherwise. He was arrested and charged with failing to comply with the terms set out in the release order. This triggered the Crown to seek bail revocation. The matter went before a judge to decide if S.H. should be found in breach and if he should await his new trial in jail. The motion judge held that the release order was not lawful because it referred to release pending appeal rather than pending a new trial. The result was to determine the release order void ab initio.
The Appeal Court stated that the test on s. 680 bail review applications is set out in R. v. Oland, 2017 SCC 17. The test requires (1) allowing deference to the judge’s findings of fact, (2) substituting the decision if the judge erred in law or principle, and (3) substituting the decision if the judge’s original decision was unwarranted.
The Crown’s position was that in granting a release order, the appeal court judge who granted it made a typographical error. The release order was not thereby invalidated. It was not open to S.H. to wait until the Crown sought revocation of the order before he was obligated to obey it. The defence position was that the order was wrong on its face. The restrictions on S.H.’s movement would continue long past the retrial even if he were acquitted.
The Court of Appeal held in favour of the Crown. It found that:
o The release order was legally valid despite the mistaken statutory reference; this minor clerical error ("slip") did not void the order. Such errors do not invalidate the order and may be corrected by the court (R. v. Hansen, 2015 BCCA 427)
o The respondent was still bound by the release conditions unless and until the order was lawfully varied or revoked (R. v. Kenny (2003), 174 C.C.C. (3d) 389 (Ont. C.A.) and R. v. Gaudreault (1995), 105 C.C.C. (3d) 270 (Que. C.A.).
o The respondent's argument was a collateral attack on the order, which is not allowed in the context of enforcement proceedings.
o The breach of bail conditions was admitted and serious, especially given the nature of the underlying charges.
Accordingly, the Crown’s application was granted. The release order was revoked. S.H. was ordered detained in custody pending a show cause hearing. Given its concurrent jurisdiction over bail pending a new trial, the matter was remitted to the Superior Court.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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