R. v. Tunnillie, 2020 NUCJ 26

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Tunnillie, 2020 NUCJ 26 Date: 20200717 Docket: 03-19-290, 08-20-151 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Nuyalia Tunnillie ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): G. Lyndon Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: July 10, 2020 Matters: Entitlement to detention reviews pursuant to Criminal Code of Canada, RSC 1985, c C-46, s. 525 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents I. INTRODUCTION .. 3 II. BACKGROUND .. 4 III. ISSUES . 4 IV. THE LAW ... 5 A. Statutory

interpretation . 5 B. Criminal Code

section 525—mandatory pre-trial detention reviews . 5 C. R v Myers . 7 V. THE POSITIONS OF THE PARTIES . 8 A. The Crown . 8 B. The Defence . 9 VI. ANALYSIS . 10 A. Does

section 525 provide for ongoing detention hearings every 90 days on the same file? 10 (

i) The Charter Statement 10 (ii) The wording of

section 525 . 11 (iii) Criminal Code sections 520 and 521 bail reviews . 13 B. Does either party bear an onus of persuasion at the detention review hearing? . 14 C. Is an accused entitled to request an adjournment of the

section 525 detention review? 16 D. Once an accused has waived their right to the

section 525 detention review, may they revoke this waiver later on to have the hearing proceed? . 17 VII. CONCLUSION .. 19 I. INTRODUCTION [ 1 ] This case addresses how the courts are to interpret and apply

section 525 of the Criminal Code . [1]

Section 525 provides for mandatory detention reviews. [ 2 ] The accused, Nuyalia Tunnillie, has two active files before the Court. A justice of the peace denied his bail request and he was remanded into pre-trial custody on the first file. He has consented to his remand on the second file. On 27 May 2020, the sentence administrator at the Baffin Correctional Centre (BCC) filed a notice with the Court triggering a mandatory judicial review of Mr. Tunnillie’s detention. He did so citing

section 525 of the Criminal Code . [ 3 ] Crown and Defence counsel, however, do not agree whether the accused is, in fact, entitled to the

section 525 detention review.

This difference in opinion stems from their different

interpretations of the wording of

section 525 . The lawyers have asked me to rule on the correct

interpretation of

section 525, and whether Mr. Tunnillie is entitled to a detention review. [ 4 ] The lawyers also have asked me to rule on three other related issues which remain unclear: 1. Who bears the onus of persuasion at the

section 525 detention review? 2. Is an accused entitled to request an adjournment of the

section 525 detention review? and 3. Once an accused has waived their right to the

section 525 detention review, may they revoke this waiver later on to have the hearing proceed? [ 5 ] The legislation does not address these issues, and these issues have not been decided in Nunavut. I agreed, therefore, to hear submissions on these issues as they are all relevant to the conduct of this hearing. [ 6 ] Each lawyer filed written submissions for my review, and I heard oral argument on July 10. I thank counsel for their helpful submissions. These are my reasons for decision. II. BACKGROUND [ 7 ] In Nunavut, BCC notifies the Court each month which detained inmates will be entitled to a

section 525 detention review hearing. The Nunavut Court of Justice has designated days every month to deal with these mandatory detention reviews. I now will briefly describe Mr. Tunnillie’s remand situation. [ 8 ] On the first file, [2] Mr. Tunnillie was arrested on 10 December 2019 and was remanded into pre-trial detention after a bail hearing on 12 December. BCC notified the Court on 10 March 2020 that Mr. Tunnillie was entitled to a

section 525 detention review. However, on 20 March 2020, Mr. Tunnillie’s lawyer filed with the Court Mr. Tunnillie’s express written waiver of his right to the

section 525 detention review. The 27 May 2020 notice, then, is the second

section 525 detention review notice filed by BCC in relation to Mr. Tunnillie on this file. [ 9 ] On the second file, [3] the charges were sworn on 30 March 2020 while Mr. Tunnillie was on remand for the first file. On 30 March, an order for removal was issued requiring Mr. Tunnillie to attend court for his first appearance on this matter on 16 June 2020. It appears from the record that the question of bail on this file has not yet been addressed. Mr. Tunnillie’s 20 March 2020 waiver does not apply to this second file. III. ISSUES [ 10 ] There are four issues I must decide. 1. Does

section 525 provide for automatic ongoing detention reviews every 90 days on the same file? 2. Does either party bear an onus of persuasion at the detention review hearing? 3. Is an accused entitled to request an adjournment of the

section 525 detention review? 4. Once an accused has waived their right to the

section 525 detention review, may they revoke this waiver later on to have the hearing proceed?

IV. THE LAW [ 11 ] I will now turn to the law which I must apply to this case. A. Statutory

interpretation [ 12 ] Entire books have been written parsing the nuances involved in the various ways judges try to understand what a particular statute means. The fundamental role of the interpreting judge is quite clear, though. I must try to honour the intentions of Parliament. Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [4] [ 13 ] In this context, Defence counsel has submitted that I may discern Parliament’s intention from the contents of a Charter Statement tabled in the House of Commons by the Justice Minister on second reading of Bill C-75. [5] I will return to this submission in my analysis. B. Criminal Code

section 525—mandatory pre-trial detention reviews [ 14 ] Canada has a national statutory bail system. Parliament has codified bail and possible pre-trial detention in

Part 16 of the Criminal Code .

Section 525 mandates a judicial pre-trial detention review for all persons who are denied bail. As I just noted, Parliament revised

section 525 along with other parts of the Criminal Code last autumn. Just what the revised

section actually means is at the heart of this decision. The revised

section 525 now in force, subsections (1)-(5), reads as follows: 525

(1) The person having the custody of an accused — who has been charged with an offence other than an offence listed in

section 469, who is being detained in custody pending their trial for that offence and who is not required to be detained in custody in respect of any other matter — shall apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody, if the trial has not commenced within 90 days from (

a) the day on which the accused was taken before a justice under

section 503; or (

b) in the case where an order that the accused be detained in custody has been made under

section 521, paragraph 523.1(3)(b)(ii) or

section 524, or a decision has been made with respect to a review under

section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision. The person shall make the application immediately after the expiry of those 90 days.

(1.1) However, the person having the custody of the accused is not required to make the application if the accused has waived in writing their right to a hearing and the judge has received the waiver before the expiry of the 90-day period referred to in subsection (1).

(2) On receiving an application under subsection (1), the judge shall (

a) fix a date for the hearing described in subsection (1) to be held in the jurisdiction (

i) where the accused is in custody, or (ii) where the trial is to take place; and (

b) direct that notice of the hearing be given to such persons, including the prosecutor and the accused, and in such manner as the judge may specify.

(3) The judge may cancel the hearing if the judge receives the accused’s waiver before the hearing.

(4) On the hearing described in subsection (1), the judge shall consider whether the prosecutor or the accused has been responsible for any delay and, if the judge is concerned that the proceedings are progressing slowly and that an unreasonable delay may result, the judge may

(

a) give directions for expediting the proceedings; or (

b) require a further hearing under this

section within 90 days or any other period that the judge considers appropriate in the circumstances.

(5) If, following the hearing, the judge is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10), the judge shall make a release order referred to in

section 515. [ 15 ] As we have seen in subsection (1), Parliament has specified five events which trigger a mandatory detention review 90 days after an accused is denied bail. These triggering events are, in the same order as contained in

section 525: • where an accused is brought before a justice of the peace after arrest (section 503); • where the prosecutor may apply to have the accused’s bail revoked after having been released (section 521); • where the court may revoke the accused’s bail if it is satisfied that the accused failed to attend court as required (section 523.1(3) (b)(ii)); • where the court may revoke the accused’s bail in other circumstances (section 524); and • where the court may revoke the accused’s bail after a bail review (section 520). [ 16 ] Each of these statutorily-specified situations triggers the mandatory

section 525 detention review once 90 days have elapsed from the triggering bail event. C. R v Myers [ 17 ] Last year, the Supreme Court of Canada examined at length the then existing version of

section 525 and it outlined what it called “the correct approach” [6] to these detention review hearings. The Court highlighted that the purpose of

section 525 is to prevent an accused person from “languishing” on remand, and to ensure their prompt trial. [7] As we shall see, Myers assists us to resolve issues one and three. However, Myers does not address the issues of onus, adjournment, and waiver. V. THE POSITIONS OF THE PARTIES A. The Crown [ 18 ] On issue one, the Crown says that

section 525 does not state expressly that an accused is entitled to ongoing detention reviews every 90 days. “Parliament’s silence”, he continued, is “very telling”. He contrasted

section 525 to

section 520 which does provide for possible subsequent bail reviews (under other circumstances). The Crown also contrasted

section 525 with the regime in the Immigration and Refugee Protection Act which is also federal legislation. [8] This latter Act expressly provides for ongoing detention reviews every 30 days. Parliament’s experienced legislative drafters know how to provide for successive reviews. Parliament did not include such a regime in

section 525. Therefore, the Crown concluded, Mr. Tunnillie – and any detained accused – is only entitled to one

section 525 detention hearing. [ 19 ] The Crown also referred to several cases where courts across Canada have reached that conclusion. [9] [ 20 ] On issue two, the Crown submits that there is no onus on either party at the detention review hearing, citing the Ontario case R v G.F . [10] This trial level Ontario case says the

section places a statutory obligation on the judge to make an independent decision whether the continued custody of the accused is justified. The question of an onus is thus irrelevant to this independent judicial detention review.

[ 21 ] On issue three, the Crown referred to Myers noting, correctly in my view, that the court focused its discussion on court induced adjournments, and not those which may be requested by the Defence. He noted further that the court in Myers recognized the potential need for adjournments, but that they must be short. [ 22 ] On issue four, the Crown says that the accused is no longer eligible for a hearing once he has filed an express written waiver. To find otherwise would open up the possibility of lengthy adjournments which do not help move cases along to timely resolution. B. The Defence [ 23 ] On issue one, Defence counsel stated that Parliament did, in fact, intend for

section 525 detention reviews to be held every 90 days. She cited only one authority to justify her submission – a Charter Statement filed by the Minister of Justice in the House of Commons on 29 March 2018 relating to Bill C-75. [11] The introductory explanation to the Charter Statement sets out the reasons for tabling such a document.

In the context of this decision, two points stand out: The Minister of Justice prepares a “Charter Statement” to help inform the public and Parliamentary debate on a government bill … By tabling a Charter Statement, [sic] the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. [12] [ 24 ] Defence counsel acknowledged that

section 525 does not expressly provide for continuing detention reviews.

But, she quoted from the Charter Statement to highlight the following statement: This Bill would amend the provisions for mandatory judicial reviews of pre-trial detention orders, so that these reviews must occur every 90 days for all accused persons. [13] [ 25 ] This is the crux of Defence counsel’s argument. [ 26 ] On issue two, Defence counsel in her written submissions referred to G.F . , but acknowledged the difference judicial approaches on this issue in the national case law. [14] In oral argument, she stated that the reference to section 515(10) [15] in section 525(5) indicates that the onus falls on whichever party had the onus – or would have had the onus – at the initial bail hearing. [ 27 ] On issue three, Defence counsel said it is open to the Court to grant adjournments of the detention review.

In practice, she stated that judges of this Court have recently adjourned several detention reviews sine die – or without a fixed return date – when the Defence has not been ready to put a reasonable bail package forward. [ 28 ] On issue four, Defence counsel stated that an accused ought to be able to revoke a waiver and to insist on having a detention review. She noted that waivers in Canadian criminal law are “fluid” meaning as circumstances change, an accused is free to revoke a previous waiver. VI. ANALYSIS A. Does

section 525 provide for ongoing detention hearings every 90 days on the same file?

[ 29 ] In my view, the answer to question one is no. An accused is only entitled to one

section 525 detention review 90 days after the last detention order. [ 30 ] I will first discuss Defence counsel’s submission that the Charter Statement should persuade me that Parliament intended there to be ongoing 90-day detention reviews. I shall then discuss the clear wording of

section 525. Lastly, I will consider whether

section 525 is consistent with the remainder of Canada’s statutory bail regime. (

i) The Charter Statement [ 31 ] It is permissible for the Court to consider this document to understand the context of the issues as well as the policy considerations which informed the government’s Bill. I acknowledge that the Charter Statement filed by the Minister of Justice early in 2018 stated that detention hearings “must occur every 90 days for all accused persons”.

However, I note that the document itself states that it was intended merely “to help inform” the subsequent Parliamentary debate on the Bill, and to outline its anticipated compliance with the Charter of Rights and Freedoms . [16] I must be cautious in how much weight I may place upon it. [ 32 ] I conclude that I cannot place any weight upon the document. The document may have been a statement of ministerial intent at the time it was tabled, but it bears no relation to the

section that Parliament passed. As the English judge Lord Denning once remarked in a similar case: … you cannot look at what the committee [read Minister of Justice] recommended … for the simple reason that Parliament may, and often does, decide to do something different to cure the mischief. [17] [ 33 ] In my view, Parliament did decide to do something different relating to

section 525 from what the Minister seems to have recommended. (ii) The wording of

section 525 [ 34 ] The key to understanding

section 525 is in the language used by Parliament. [ 35 ] The wording of

section 525 is clear. In layman’s terms, subsection (1) specifically lists five events which trigger a mandatory detention review. 90 days after the triggering event, the jailer must notify the court and the court must then conduct a detention review. The presiding judge must determine whether the continuing detention of the accused is justified. The judge must release the accused if their continued detention cannot be justified. If the judge concludes that the detention ought to continue, he merely affirms the existing detention order.

In this latter instance, the judicial affirmation of the existing detention order does not constitute a new detention order, and the renewal is not another triggering event. [ 36 ] Furthermore, subsection (1) does not call for ongoing 90-day detention reviews. I must not guess or speculate whether this absence of an ongoing detention review mechanism may have been a Parliamentary oversight. [ 37 ] I believe a correct reading of Myers supports this view.

In the words of the Chief Justice: … 90 days following the last detention order against the accused is simply the point at which Parliament has specified that a judge must determine whether the continued detention of the accused is justified. [18] [emphasis added]

[ 38 ] Mr. Tunnillie was brought before a justice of the peace after his arrest and the justice of the peace denied him bail after a bail hearing on 12 December 2020. The 90-day clock started counting down that day which led to the March 2020 filing by his jailer of its

section 525 notice. That is exactly the scenario outlined in the quote above from Myers . As it happened, Mr. Tunnillie waived his right to the detention review, and no new detention order was issued by the Court. [ 39 ] I am further bolstered in my analysis because Parliament elected specifically to provide for a further discretionary detention review in cases where the judge is concerned about unreasonable pre-trial delay. In these cases, subsection (4)(

b) of

section 525 specifically provides for a further detention review “within 90 days or any other period that the judge considers appropriate in the circumstances”. Thus, we see that Parliament did consider the possibility of further detention reviews but restricted it to cases where unreasonable pre- trial delay was a real concern. Parliament did not mandate a regime of ongoing detention reviews every 90 days. [ 40 ] As part of my analysis, I must assume that Parliament knew what it was doing when it drafted and passed

section 525 in its present form. This assumption implies, first of all, that the legislature is able to devise effective legislative schemes and to formulate directives and rules that will provide adequate guidance to those who must implement and obey the law. Secondly, it implies mastery of the conventions of legislative drafting. [19] [ 41 ] Parliament provided for a mandatory detention review process whenever one of the five triggering events occurs. Parliament also addressed itself specifically to one further instance where a further detention review might be available – in cases where the judge is concerned about unreasonable pre-trial delay. In my view,

section 525 constitutes an adequate and effective legislative scheme. I can only properly assume that that is what Parliament intended to do. (iii) Criminal Code sections 520 and 521 bail reviews [ 42 ] As part of my analysis, I also consider what bail review mechanisms Parliament has enshrined in other parts of its statutory bail regime. In doing so, I must assume that the bail provisions of

Part 16 are “consistent and coherent”. [20] [ 43 ] Apart from

section 525, Mr. Tunnillie enjoys an ongoing right to have his detention reviewed. Pursuant to Criminal Code section 520(1) , an accused may apply to a judge to review a bail order “at any time before the trial of the charge”. [21] Furthermore, section 520(8) states that once such a bail review has been held, another review cannot be requested by the accused, without leave of the court, until 30 days have gone by. [ 44 ] Criminal Code

section 521 extends an equivalent right of bail review to the Crown. [ 45 ] These specific bail provisions strengthen my view that Parliament would have expressly provided for an ongoing automatic 90-day detention review had that been its intention. Again, Parliament did not do so. [ 46 ] Nunavut is a tiny jurisdiction population-wise and with few exceptions accused persons are represented by legal aid counsel. The Nunavut Court of Justice has regularly scheduled “ Myers days” known to our jails and counsel to hear detention reviews. Mr. Tunnillie continues to enjoy his

section 520 rights to periodic bail reviews. Mr. Tunnillie has not fallen through the cracks, and he will not languish in pre-trial custody because of this decision. B. Does either party bear an onus of persuasion at the detention review hearing?

[ 47 ] The answer to question two is yes, depending on the underlying circumstances, one or other party bears an onus of persuasion. [ 48 ] A court may deny an accused bail and remand him into custody only in three circumstances: if remand is necessary to get the accused to attend court, or it is necessary for the safety or protection of the public, or to maintain public confidence in the justice system. [22] Depending on the surrounding circumstances, the onus – or burden of persuasion – at a bail hearing or bail review may lie either with the Crown or the Defence.

Section 525 makes no reference to whether either party bears an onus at the detention review. [ 49 ] There is indeed “considerable debate in the case law” [23] on this topic. The proposition that there is no onus at the detention review is based on a certain reading of Myers. The G.F. case noted by both counsel sets out the position nicely: Turning to the question of onus, in my view, it is clear that on a s. 525 review there is no onus on either party during this hearing. There is nothing in the language of Myers or in the wording of s. 525 that would suggest that a party appearing at the hearing carries an onus. Indeed, Chief Justice Wagner in Myers stressed that the

section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals on remand. [24] [ 50 ] As I noted earlier, Myers did not discuss or decide the onus issue.

I remind myself that I am considering a statutory regime, and that I must consider the overall purpose and scheme of the entire regime. [ 51 ] Prior to Myers , several cases in different provinces held that the onus at the detention hearing is the same as at the initial bail hearing. [25] Post Myers , an Ontario trial level judge has ruled that where an accused has not had a bail hearing, the onus at the detention review is what it would have been had the bail hearing been held.

There are Ontario cases which say that where there has been a bail hearing, the onus at the detention hearing lies with the Defence to establish, among other things, a change in circumstances or the existence of new evidence. [26] G.F. is authority for the proposition that there is no onus. Given our federal system, none of these cases are binding law in Nunavut. [ 52 ] This issue has not been considered before in Nunavut, and I must try to resolve it. [ 53 ] Needless to say, it would be preferable for Parliament to decide this issue after proper study in committee and considered Parliamentary debate.

Until such time as Parliament – or the Supreme Court of Canada – settles the question, I agree with the conclusion reached by Chief Justice R. Veale in R v Sawrenko that the “fairest procedure would be to have the burden of proof [at the detention review] on the same party that had the burden that resulted in the original or reviewed custodial order”. [27] [ 54 ] This recognition of an onus applicable to detention reviews also seems logical. I will give an example. An accused might, as has Mr. Tunnillie on his second file, appear in court for a

section 525 detention review without having had a bail hearing. In the event that an accused was facing a Defence onus bail hearing, it is illogical that that onus should disappear simply because he is up for a detention review. The very same policy factors which justified a Defence onus at the bail hearing remain present at the time of the detention review. [ 55 ] I believe this is a principled approach. I do not see the presence of an onus as undermining the independent responsibility of the presiding judge at the detention review.

The issue of onus has not triggered concerns about its possible effect on the independence of judicial officers at other stages of the bail process. Recognizing an onus at the detention review, then, conforms to the overall structure of the bail regime. I see no adverse implications to applying an onus at the detention review stage.

Indeed, in my experience, the presence of an onus tends to focus counsel on what is relevant to the case. [ 56 ] The onus of persuasion or onus of proof at the detention review falls on the same party that had the onus at the hearing that resulted in the original or reviewed detention order (or who would have had the onus at the bail hearing).

C. Is an accused entitled to request an adjournment of the

section 525 detention review? [ 57 ] In my view, the answer to question three is yes. An accused is entitled to request a short adjournment of the detention review. [ 58 ] The

section 525 detention review regime does not include any reference to adjournments. However, the Supreme Court of Canada has provided some guidance on this point. Once the jailer has filed its

section 525 notice, the court must

schedule the hearing date “without delay” to the “first available date.” [28] As the hearing is mandated by statute, the court has no authority not to hold the hearing in a timely fashion. The Court in Myers continued that only “occasionally and in limited circumstances” may the judge exercise discretion to adjourn the detention hearing. [29] [ 59 ] As the Crown noted, paragraphs 39 and 40 in Myers focus on court-inspired adjournments. The Court did not address those circumstances where it is an accused – like Mr. Tunnillie - who makes the adjournment request.

In any event, the Court did set out a two-part-test which must be satisfied before a court may adjourn a detention review. The proposed adjournment must “clearly” be one which “serves the interest of justice and the underlying purposes of [section 525]”. [30] [ 60 ] We know from experience a major reason accused persons consent to their pre-trial remand: they do not have a reasonable release plan to present to the court. Courts routinely adjourn bail hearings to give an accused the chance to put just such a release plan together.

Holding quick bail hearings in these circumstances just to be seen to be dealing with cases in a timely fashion would obviously lead to many injustices. [ 61 ] Defence counsel says Mr. Tunnillie needs some time to respond properly to the detention review. In my view, the interests of justice are clearly served by granting Mr. Tunnillie’s request for an adjournment on the second file. The first part of the two-part-test is satisfied. The real issue invokes the second part of the test.

How long may the Court adjourn and thereby delay the detention review? [ 62 ] The second part of the Myers test says that any adjournment must conform to the purposes of the detention review regime. As we have seen, the purpose of the regime is to ensure that an accused does not fall through the cracks while sitting on remand, and that the judge act as a case manager to ensure that the case proceeds along to a timely resolution.

To that end, it appears only logical that any adjournment ought to be a reasonably short one so as not to undermine the purpose of the timely detention review process. [ 63 ] I will not try to define what, or what may not, constitute a reasonably short adjournment. These determinations can only be made in response to the circumstances of the individual case. In Mr. Tunnillie’s case, I am prepared to grant an adjournment up to 30 days before the detention review may be held. I would not be inclined to go beyond that time for the reasons I have already stated above, and because Mr.

Tunnillie always has the benefit of a potential

section 520 bail review. D. Once an accused has waived their right to the

section 525 detention review, may they revoke this waiver later on to have the hearing proceed? [ 64 ] In my view, the answer to this question is no. Once an accused waives the right to a detention review, the waiver is irrevocable. [ 65 ]

Section 525 is silent on this issue which was not considered in Myers . I look to the legislation itself and the implications of section 525(1.1) to find the answer. [ 66 ] In Nunavut, the practice has developed where BCC, for example, files its

section 525 notice with the Court close to or at the very same time as it sends the notice to Defence and Crown counsel. This may explain why the waiver form drafted by counsel for the Legal Services Board contains a place to record the court file number. Once the Court receives the notice, the Court must

schedule the detention review. So, practically, we have the situation where Mr. Tunnillie has filed his written waiver after the jailer has filed its notice, so the Court is seized with the matter. While the merits of this practice were not argued before me, the present practice seems to conform with the legislation.

[ 67 ] Section 525(1.1) does contemplate a different scenario, though. Subsection (1.1) says an accused may file a waiver of the right to detention review with the court before the jailer files its notice with the court. As long as the court receives the waiver before the 90-day clock expires, the jailer is not obliged to file its notice with the court. In such a case, the waiver is filed, and if the judge decides not to hold the detention review anyway, [31] the 90-day clock clicks down to zero and the matter is concluded – at least as far as the detention review is concerned.

The 90-day clock having expired the effect of the waiver is permanent. [ 68 ] But, is the waiver permanent if the matter gets before the court? Counsel were unable to provide any case law where this issue has been discussed. As a matter of principle, a revocable waiver potentially could lead to long or indefinite adjournments. These possibilities fly directly in the face of Parliament’s clear purpose to have the mandatory

section 525 safety net detention review held as close as possible to 90 days after an accused is denied bail. [ 69 ] Therefore, I rule that Mr. Tunnillie’s express waiver of his right to the detention review filed on 20 March 2020 was irrevocable. VII. CONCLUSION [ 70 ]

Section 525 forms one part of the comprehensive statutory bail regime enshrined in the Criminal Code . Parliament intended

section 525 to act as an early safety net to ensure that an accused subject to pre-trial detention does not fall through the cracks. 90 days after he is brought before a justice of the peace after arrest, or 90 days after a subsequent remand, an accused must be brought before a judge. In most cases,

section 525 acts as a one-time [32] systems check to ensure that an accused’s case is moving along appropriately. [ 71 ]

Section 525 is an effective complement to the other bail safeguards which I have already discussed. [ 72 ] Mr. Tunnillie irrevocably waived his right to his detention review on file one on 20 March 2020. There has been no subsequent detention order and therefore no subsequent triggering event. For these reasons, I find that Mr. Tunnillie is not entitled to another

section 525 detention review. I strike file one from the docket. [ 73 ] Mr. Tunnillie, however, is entitled to have his bail status determined on the second file. Myers is binding authority which mandates the detention review judge to conduct a detention-review-cum-bail-hearing if one has not yet been held. [33] [ 74 ] I have the authority to adjourn this detention-review-cum-bail-hearing for a short time. I adjourn Mr. Tunnillie’s hearing to the first available date for counsel. Counsel told me that the Crown would have had the onus of persuasion had a bail hearing been held.

The Crown shall bear the onus at the detention review hearing. Dated at the City of Iqaluit this 17th day of July 2020 ___________________ Justice P. Bychok Nunavut Court of Justice