Her Majesty The Queen Appellant v. Jeffrey St-Cloud, 2015 SCC 27
Opinion
SUPREME COURT OF CANADA Citation: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 Date: 20150515 Docket: 35626 Between: Her Majesty The Queen Appellant and Jeffrey St-Cloud Respondent - and - Attorney General of Ontario, Criminal Lawyers’ Association (Ontario) and Canadian Civil Liberties Association Interveners Official English Translation Coram: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ. Reasons for Judgment: (paras. 1 to 168) Wagner J. (McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis and Gascon JJ. concurring) R. v .
St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 Her Majesty The Queen Appellant v. Jeffrey St-Cloud Respondent and Attorney General of Ontario, Criminal Lawyers’ Association (Ontario) and
Canadian Civil Liberties Association Interveners Indexed as: R. v. St-Cloud 2015 SCC 27 File No.: 35626. 2014: November 6; 2015: May 15. Present: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ. on appeal from the superior court of quebec Criminal law — Interim release — Grounds justifying detention — Justice of peace ordering detention of accused awaiting trial on ground set out in s. 515(10) (
c) of Criminal Code , that is, that his detention “is necessary to maintain confidence in the administration of justice” — Reviewing judge ordering release of accused — Proper
interpretation of s. 515(10)(
c) of Criminal Code — Restrictive
interpretation rejected — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10)(c). Criminal law — Interim release — Review of decision of justice of peace — Decision by justice of peace to order detention of accused reversed by reviewing judge — Cases in which review provided for in ss. 520 and 521 of Criminal Code is available in interim release context — Whether reviewing judge erred in exercising his role by simply substituting his assessment of evidence for that of justice of peace — Criminal Code, R.S.C. 1985, c. C-46, ss. 520, 521.
S was charged with one count of aggravated assault under s. 268 of the Criminal Code for having assaulted a bus driver together with two other individuals. The Crown opposed the interim release of S. The justice of the peace who heard the initial application for release found that detention was necessary on the basis of s. 515(10) (
b) and (
c) Cr. C. , that is, because the interim detention of S was necessary for the protection or safety of the public, and to maintain confidence in the administration of justice. The justice who heard the second application for release on completion of the preliminary inquiry found that the detention of S was still justified under s. 515(10)( c ). S then applied under s. 520 Cr. C. for a review by a Superior Court judge, who determined that the detention of S was not necessary under s. 515(10) (
c) and ordered his release. Held : The appeal should be allowed and the detention order restored. The ground set out in s. 515(10) (
c) of the Criminal Code , that is, that the detention of the accused “is necessary to maintain confidence in the administration of justice”, is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused. It is not a residual ground for detention that applies only where the first two grounds for detention provided for in s. 515(10) (
a) and (
b) are not satisfied. The scope of s. 515(10) (
c) has been unduly restricted by the courts in some cases; this provision must not be interpreted narrowly or applied sparingly . The application of this ground for detention is not limited to exceptional circumstances, to unexplainable crimes, to the most heinous of crimes or to certain classes of crimes. The fact that detention may be justified only in rare cases is but a consequence of the application of s. 515(10) ( c ), and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision. Section 515(10) (
c) is worded clearly, and it does not require exceptional or rare circumstances. Nor is the question whether a crime is unexplainable or unexplained a criterion that should guide justices in their analysis under s. 515(10) ( c ). This concept is ambiguous and confusing. Because many crimes may be explainable in one way or another, the unexplainable crime criterion is of little assistance . The application of a criterion based on the notion of an unexplainable crime could also lead to undesirable conclusions, since crimes that are heinous and horrific might not satisfy it.
Such a criterion could give the public the impression that justices are justifying certain crimes, that is, crimes that are explainable. I n determining whether the detention of an accused is necessary to maintain confidence in the administration of justice , the justice must first consider the four circumstances that are expressly referred to in s. 515(10) ( c ). First of all, the justice must determine the apparent strength of the prosecution’s case.
The prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing. The justice must nevertheless consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this circumstance in his or her balancing exercise. The justice must also consider any defence raised by the accused.
If there appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of the prosecution’s case. Next, the justice must determine the objective gravity of the offence in comparison with the other offences in the Criminal Code . This is assessed on the basis of the maximum sentence — and the minimum sentence, if any — provided for in the Criminal Code for the offence. The justice must then consider the circumstances surrounding the commission of the offence, including whether a firearm was used. Those that might be relevant under s. 515(10) (
c) include the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person. If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account. Finally, the fourth circumstance to consider is the fact that the accused is liable for a potentially lengthy term of imprisonment.
Although it is not desirable to establish a strict rule regarding the number of years that constitutes a lengthy term of imprisonment, some guidance is required. Because no crime is exempt from the possible application of s. 515(10) ( c ), the words “lengthy term of imprisonment” do not refer only to a life sentence. Moreover, to determine whether the accused is actually liable for a potentially lengthy term of imprisonment, the justice must consider all the circumstances of the case known at the time of the hearing, as well as the principles for tailoring the applicable sentence.
This fourth circumstance is assessed subjectively.
The circumstances listed in s. 515(10)(
c) are not exhaustive. The court must consider all the circumstances of each case,paying particular attention to the four listed circumstances. No single circumstance is determinative: the justice must consider thecombined effect of all the circumstances of each case to determine whether detention is justified. This involves balancing all the relevantcircumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary tomaintain confidence in the administration of justice.
Thus, the court must not order detention automatically even where the four listedcircumstances support such a result. Some other circumstances that might be relevant are the personal circumstances of the accused (age,criminal record, physical or mental condition, and membership in a criminal organization), the status of the victim and the impact onsociety of a crime committed against that person, and the fact that the trial of the accused will be held at a much later date. The justice’s balancing of all the circumstances under s. 515(10)(
c) must always be guided by the perspective of the“public”, that is, of a reasonable person who is properly informed about the philosophy of the legislative provisions, the values of theCanadian Charter of Rights and Freedoms, and the actual circumstances of the case. The person in question is a thoughtful person, notone who is prone to emotional reactions, whose knowledge of the circumstances of the case is inaccurate or who disagrees with oursociety’s fundamental values.
However, this person is not a legal expert, and, although he or she is aware of the importance of thepresumption of innocence and the right to liberty in our society, expects that someone charged with a crime will be tried within areasonable period of time, and knows that a criminal offence requires proof of culpable intent and that the purpose of certain defences isto show the absence of such intent, the person is not able to appreciate the subtleties of the various defences that are available to theaccused.
This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to orderdetention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is notjustified. Sections 520 and 521 of the Criminal Code do not confer an open-ended discretion on the reviewing judge to vary the initialdecision concerning the detention or release of the accused. They establish not a de novo proceeding, but a hybrid remedy. The judgemust determine whether it is appropriate to exercise his or her power of review.
Exercising this power will be appropriate in only threesituations: (1) where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of thecase; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. The four criteria from Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, are relevant to the determination ofwhat constitutes new evidence for the purposes of the review provided for in ss. 520 and 521.
Given the generally expeditious nature ofthe interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very startof criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria.Regarding the first criterion, due diligence, the reviewing judge may consider evidence that is truly new or evidence that existed at thetime of the initial release hearing but was not tendered for some reason that is legitimate and reasonable.
Such new evidence is notlimited to evidence that was unavailable to the accused before the initial hearing. In each case, the reviewing judge will have todetermine whether the reason why the accused did not tender such pre-existing evidence earlier was legitimate and reasonable. As to thesecond criterion, it will suffice that the evidence be relevant for the purposes of s. 515(10). This criterion will therefore rarely be decisivein the context of an application for review under ss. 520 and 521, since the range of relevant evidence will generally be quite broad.
Thethird criterion — that the evidence must be credible in the sense that it is reasonably capable of belief — must be interpreted in light ofthe relaxation of the rules of evidence at the bail stage and in particular of s. 518(1)(
e) of the Criminal Code, which provides that “thejustice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case”.Finally, the fourth Palmer criterion should be modified as follows: the new evidence must be such that it is reasonable to think, havingregard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c).The new evidence must therefore be significant. If the new evidence meets the four criteria for admissibility, the reviewing judge isauthorized to repeat the analysis under s. 515(10)(
c) as if he or she were the initial decision-maker. It will also be appropriate to intervene if the justice has erred in law or if the impugned decision was clearly inappropriate,that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judgetherefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factorsdifferently.
In this case, the Superior Court judge intervened even though there was no basis for a review, given that there was nochange in circumstances and no error of law, and that the initial decision was not clearly inappropriate. When all the relevantcircumstances are weighed as required by s. 515(10)(c), the detention of S was necessary to maintain confidence in the administration ofjustice. Cases Cited Considered: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; referred to: R. v. Pearson, (SCC), [1992] 3S.C.R. 665; R. v. Morales, (SCC), [1992] 3 S.C.R. 711; Valente v. The Queen, (SCC), [1985] 2 S.C.R.673; R. v.
Thomson (2004), (ON SC), 21 C.R. (6th) 209; R. v. B. (A.) (2006), (ON SC), 204C.C.C. (3d) 490; R. v. Pichler, 2009 ABPC 24; R. v. Teemotee, 2011 NUCJ 17; R. v. Bhullar, 2005 BCCA 409; R. v. Brotherston, 2009BCCA 431, 71 C.R. (6th) 81; R. v. LaFramboise (2005), (ON CA), 203 C.C.C. (3d) 492; R. v. D. (R.), 2010 ONCA899, 273 C.C.C. (3d) 7; R. v. Blind (1999), (SK CA), 139 C.C.C. (3d) 87; R. v. Rondeau (1996), (QC CA), 108 C.C.C. (3d) 474; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Coates, 2010 QCCA 919; R. v. Mordue (2006), (ON CA), 223 C.C.C. (3d) 407; R. v.
Nguyen (1997), (BC CA), 119 C.C.C. (3d) 269; R. v.Lamothe (1990), (QC CA), 58 C.C.C. (3d) 530; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v.Burlingham, (SCC), [1995] 2 S.C.R. 206; R. v. Trout, 2006 MBCA 96, 205 Man. R. (2d) 277; R. v. Turcotte, 2014QCCA 2190; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1991] 3 S.C.R. 459; R. v. M.(S.H.), (SCC), [1989] 2 S.C.R. 446; R. v. Oliver, 2008 NLCA 27, 287 Nfld. & P.E.I.R. 123; R. v. Massan, 2012 MBCA26, 289 C.C.C. (3d) 285; R. v. White, 2005 ABCA 403, 202 C.C.C. (3d) 295; United States of America v.
Chan (2000), (ON CA), 144 C.C.C. (3d) 93; United States of America v. Pannell (2005), (ON CA), 193 C.C.C. (3d) 414; UnitedStates of America v. Yuen, 2004 ABCA 368, 363 A.R. 28; Tenenbaum v. United States of America, 2008 ABCA 396, 446 A.R. 155;Delagarde v. United States of America (2005), (NB CA), 293 N.B.R. (2d) 80; United States of America v. Palmucci,
; Boily v. États-Unis Mexicains, 2005 QCCA 599; Ivanov v. United States of America, 2003 NLCA 11, 223 Nfld. &P.E.I.R. 44; Seifert v. Canada (Attorney General), 2002 BCCA 385, 171 B.C.A.C. 203; United States of America v. Graham, 2004BCCA 162, 195 B.C.A.C. 245; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), (SCC),[1996] 1 S.C.R. 500; R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R.v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; Toronto Star Newspapers Ltd. v.
Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; R. v.Muise (1994), 1994 NSCA 198 , 94 C.C.C. (3d) 119; R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41;Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857; Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; R. v. Warsing, (SCC), [1998] 3 S.C.R. 579; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. M. (P.S.) (1992), (ONCA), 77 C.C.C. (3d) 402; McMartin v. The Queen, (SCC), [1964] S.C.R. 484; R. v. Price, (SCC),[1993] 3 S.C.R. 633; R. v. Burns, (SCC), [1994] 1 S.C.R. 656; Harper v. The Queen, (SCC), [1982] 1S.C.R. 2; R. v. Dagenais, 2012 QCCA 244; R. v.
Riendeau, 2012 QCCA 1155. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 11(d), (e), 24(2). Criminal Code, R.S.C. 1985, c. C-46, ss. 34, 232, 267(b), 268, 469, 515(1), (2), (4) to (4.3), (5), (6), (8), (10), 517(1)(b), 518, 520, 521,523(2)(b), 680, 687, 718.2(d), 719(3), (3.1), 723, 730, 731, 732.1(3), 734. Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 59(2). Extradition Act, S.C. 1999, c. 18, s. 18(2). Tackling Violent Crime Act, S.C. 2008, c. 6, s. 37(5). Young Offenders Act, R.S.C. 1985, c. Y-1, s. 16(9), (10). Youth Criminal Justice Act, S.C. 2002, c. 1, s. 33(1).
Authors Cited Morissette, Yves-Marie. “The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What To Do and What NotTo Do” (1984), 29 McGill L.J. 521. Quigley, Tim. Procedure in Canadian Criminal Law, 2nd ed. Toronto: Carswell, 2005 (loose-leaf updated 2014, release 5). Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012. Trotter, Gary T. The Law of Bail in Canada, 3rd ed. Toronto: Carswell, 2010 (loose-leaf updated 2014, release 3).
APPEAL from a decision of the Quebec Superior Court (Martin J.), 2013 QCCS 5021, [2013] AZ-51009868, [2013] J.Q. no 14227 (QL), 2013 CarswellQue 10825 (WL Can.), allowing an application under s. 520 of the Criminal Code for review of a detentionorder. Appeal allowed. Christian Jarry and Geneviève Langlois, for the appellant. André Lapointe and Guylaine Tardif, for the respondent. Robert E. Gattrell and Avene Derwa, for the intervener the Attorney General of Ontario. John Norris and Christine Mainville, for the intervener the Criminal Lawyers’ Association (Ontario). Anil K.
Kapoor and Lindsay Daviau, for the intervener the Canadian Civil Liberties Association. English version of the judgment of the Court delivered by Wagner J. — I. Introduction [1] The repute of our criminal justice system rests on the deeply held belief of Canadians that the right to liberty andthe presumption of innocence are fundamental values of our society that require protection. However, that repute also depends on theconfidence citizens have that persons charged with serious crimes will not be able to evade justice, harm others or interfere with theadministration of justice while awaiting trial.
The risk that one of these events might tarnish the repute of the justice system wasrecognized by Parliament in enacting s. 515(10)(
a) and (
b) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), under which theinterim detention of an accused may be ordered where that is necessary to ensure the attendance of the accused in court or to guaranteethe protection or safety of the public. [2] Moreover, Parliament judged that there are circumstances in which releasing an accused person could underminethe repute of the justice system, and this led it to provide, in s. 515(10)(
c) Cr. C., for a third ground for interim detention, maintainingconfidence in the administration of justice. Thus, Parliament recognized that there are circumstances in which allowing a person chargedwith a serious crime to be released into the community pending trial in the face of overwhelming evidence might suggest to the publicthat justice has not been done: see R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 26. [3] This appeal affords the Court an opportunity to consider the circumstances in which pre-trial detention of an
accused is necessary in order to maintain the confidence of the Canadian public in the administration of justice in accordance with s. 515(10) (
c) Cr. C. This provision has already been considered by the Court in Hall , but the central issue in that case was the constitutionality of this ground for detention as it was worded at that time. In cases decided by lower courts since Hall , the provision has been given widely varying
interpretations, making it necessary for the Court to provide further guidance on its application. [ 4 ] The ground for detention in s. 515(10)(
c) Cr. C. requires that an effort be made to strike an “appropriate balance between the rights of the accused and the need to maintain justice in the community” : Hall , at para. 41 . In addition, judges must adopt the perspective of the public in determining whether detention is necessary. What the word “public” means is not always easy to understand. These difficulties no doubt explain why s. 515(10) (
c) Cr. C. has generated so much discussion among legal experts and led to inconsistent results across the country. [ 5 ] In my opinion, the scope of s. 515(10) (
c) Cr. C. has been unduly restricted by the courts in some cases. This ground for detention is not necessarily limited to exceptional circumstances, to the most heinous of crimes involving circumstances similar to those in Hall , or to certain classes of crimes. The
interpretation of s. 515(10)(
c) Cr. C. has also been truncated by a misunderstanding of the meaning of the word “ public ” used in the provision’s French version (and implied in the word “confidence” used in the English version), which I will discuss below. For now, I will simply note that the “public” are reasonable, well-informed members of the community, but not legal experts with in-depth knowledge of our criminal justice system. [ 6 ] This appeal is the first time this Court has been called upon to determine the extent of the power provided for in ss. 520 and 521 Cr.
C. to review decisions with respect to detention or to interim release. Since a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 Cr. C. to review such a decision is not open-ended. I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate.
In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene. [ 7 ] In the case at bar, the respondent, Jeffrey St-Cloud, was charged with aggravated assault under s. 268 Cr. C. The justice of the peace who heard the initial application for release found that detention was necessary on the basis of s. 515(10) (
b) and (
c) Cr. C. The justice who heard the respondent’s second application for release on completion of the preliminary inquiry found that his detention was still justified under s. 515(10)( c ). The respondent then applied under s. 520 Cr. C. for a review by a Superior Court judge, who determined that detention was not necessary under s. 515(10) (
c) and ordered the respondent’s release. The Crown is appealing that decision to this Court. [ 8 ] For the reasons that follow, I would allow the appeal. The detention of the respondent is necessary to maintain confidence in the administration of justice. I will explain why. II. Background and Judicial History [ 9 ] On the night of April 24, 2013, the respondent and two other individuals committed an extremely violent assault against a bus driver working for the Société de transport de Montréal.
The incident was recorded by the video system on the bus, and the recording showed that the respondent had been an active participant in the assault. The three individuals struck the driver in the head many times, leaving him with serious long-term injuries. Even the intervention of passengers was not enough to stop the attack right away. The respondent was charged with aggravated assault under s. 268 Cr. C. A. Court of Québec (Judge Lavergne), No. 500-01-088824-138, April 29, 2013 [1] [ 10 ] The first release hearing took place on April 26, 2013 before Judge Lavergne.
The appellant opposed the respondent’s release. At the time of the hearing, the victim was still in the hospital and the medical prognosis was uncertain. However, it was known that he had, at the very least, a hairline fracture to a facial bone and a concussion. [ 11 ] Judge Lavergne stated at the outset that the onus was on the prosecutor to show that the respondent’s detention was necessary. After balancing the relevant factors, he found on the basis of s. 515(10) (
b) Cr. C. that the interim detention of the respondent was necessary for the protection or safety of the public. [ 12 ] Judge Lavergne nevertheless continued his analysis and considered the circumstances set out in s. 515(10) (
c) Cr. C. The first three — (1) the apparent strength of the prosecution’s case, (2) the gravity of the offence and (3) the circumstances surrounding the commission of the offence — had already been discussed in the context of the ground set out in s. 515(10)( b ). He also considered the fourth circumstance, namely the fact that the respondent was liable, on conviction, for a potentially lengthy term of imprisonment (maximum sentence of 14 years).
As well, he was of the opinion that aggravating factors were evident from the circumstances of the case. [ 13 ] Judge Lavergne then explained that s. 515(10) ( c ) [ translation ] “calls for an analysis of whether, at the end of the day, after all the circumstances are considered . . . there is a reasonable collective expectation that interim release must be denied to maintain public confidence in the administration of justice”: pp. 18-19. He made the following comments in this regard: [ translation ] But who then is the public?
The public means persons who are reasonable, dispassionate and properly informed about the values expressed in legislation, including the presumption of innocence, which applies throughout the criminal process, as I have said, but who are also informed about all the circumstances associated with the commission of a crime. In light of the videotape and all the circumstances, the defendant’s participation, the likelihood of a conviction and the chances of a significant term of imprisonment, the Court is satisfied that such a reasonable person would conclude that interim release must be denied. [p. 19]
[14] Finding that the Crown had discharged its burden under s. 515(10)(
c) Cr. C., Judge Lavergne accordingly orderedthe detention of the respondent until further order. B. Court of Québec (Judge Legault), No. 500-01-088824-138, June 21, 2013 [15] On completion of his preliminary inquiry, the respondent applied again to be released, this time on the basis of s.523(2)(
b) Cr. C.
Judge Legault began by explaining that the onus was on the respondent to show some new cause for ordering hisrelease and that the court had a [translation] “limited power that requires [it] to show restraint”: para. 2. [16] Noting that the evidence concerning the circumstances of the offence seemed to be the same that had been presentedat the time of the initial application, however, Judge Legault expressed the opinion that there were also some new facts, including asubstantial increase in the financial security provided by the respondent’s family and the possibility of his obtaining regular employmentat a garage. [17] Judge Legault found on the basis of the new facts that the risk of reoffending was [translation] “reduced”.
He alsoconsidered it “credible” that the respondent was seriously committed to working or studying: paras. 20-21. However, he noted that thevictim’s medical condition had worsened. [18] Judge Legault therefore accepted Judge Lavergne’s conclusion that the detention of the respondent was necessary tomaintain confidence in the administration of justice, the ground provided for in s. 515(10)(
c) Cr. C. He agreed with Judge Lavergne thatthere was [translation] “a reasonable collective expectation that interim release must be denied to maintain public confidence in theadministration of justice”: para. 25. C. Quebec Superior Court (Martin J.), 2013 QCCS 5021 [19] On July 2, 2013, the respondent applied to the Superior Court under s. 520 Cr. C. for a review of the detention order. [20] Martin J. began by stating that he understood from Judge Legault’s decision that the latter had concluded that thedetention of the respondent was not necessary for the protection or safety of the public within the meaning of s. 515(10)(
b) Cr. C. InMartin J.’s opinion, Judge Legault would therefore have granted the respondent bail had it not been for the ground set out in s.515(10)(
c) Cr. C., namely the need for detention in order to maintain confidence in the administration of justice. [21] Martin J. then noted that it was up to the respondent to show a reviewable error by the justices who had ordered hisdetention. Referring to Hall, he concluded that s. 515(10)(
c) Cr. C. must be [translation] “used sparingly”: para. 22 . [22] Martin J. stated the test he had to apply as follows: [translation] . . . Could a reasonable person who has no interest in the situation, but who is well versed in the content ofthe Charter of Rights, the provisions of the Criminal Code and the principles laid down by the Supreme Court, conclude that confidencein the administration of justice would be undermined if the person in question were released?
It is in fact the justice who must assess thison the basis of the facts in evidence. [para. 23] [23] Martin J. concluded that, in the instant case, the incident was [translation] “repugnant . . . heinous and unjustifiable”,but not unexplainable: para. 27. In his opinion, the two justices had therefore erred in denying release on the basis of the ground set outin s. 515(10)(
c) Cr. C. He accordingly granted the respondent’s application and ordered his release. III. Issues [24] This appeal raises the following questions: 1. What is the proper
interpretation of s. 515(10)(
c) Cr. C.? 2. What are the cases in which the review provided for in ss. 520 and 521 Cr. C. is available in the interim release context? 3. In this case, did the Superior Court judge err in his
interpretation of s. 515(10)(
c) Cr. C.? 4. In this case, did the Superior Court judge err in exercising his role as a reviewing judge under s. 520 Cr. C. by simplysubstituting his assessment of the evidence for that of the justices? IV. Analysis A. Proper
Interpretation of Section 515(10)(
c) Cr. C.
(1) Legislative and Judicial Context [25] Although the legislative history of s. 515(10) Cr. C. was explained clearly by this Court in Hall, I believe that it willbe helpful to summarize it here. [26] I should begin by mentioning that the pre-trial release provisions are of relatively ancient origin: In 1869, the Federal Government enacted legislation making bail discretionary for all offences: see
An Act respecting theduties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30. Bail wastherefore left to the discretion of the judge. Although the primary determinant for denying bail was the need to compel the accused’sattendance, courts also considered other factors such as the nature of the offence, the severity of the penalty, the evidence against theaccused, and the character of the accused: see, for example, R. v. Gottfriedson (1906), (BC SC), 10 C.C.C. 239 (B.C.
Co. Ct.); Re N. (1945), (PE SCTD), 87 C.C.C. 377 (P.E.I.S.C.). In 1972 the law of bail was recodified: Bail Reform Act, S.C. 1970-71-72, c. 37. The Act identified two branches forrefusing bail: (1) where the accused’s detention was necessary to ensure his attendance in Court; or (2) where detention was “necessaryin the public interest or for the protection or safety of the public” against the accused re-offending or interfering with the administrationof justice.
The use of “or” in the second branch led to the view that there were in effect three grounds for denying bail: (1) ensuringappearance at trial; (2) protection against criminal offences pending trial; and (3) the “public interest”. These grounds were originallyenacted as s. 457(7)(
a) and (
b) of the Criminal Code, and later became s. 515(10)(
a) and (b). (Hall, at paras. 14-15) [27] Since the enactment of the Canadian Charter of Rights and Freedoms (“Charter”) in 1982, any person charged withan offence has the right “not to be denied reasonable bail without just cause”: s. 11(e). This Court has stated that s. 11(
e) creates “a basicentitlement to be granted reasonable bail unless there is just cause to do otherwise”: R. v. Pearson, (SCC), [1992] 3S.C.R. 665, at p.
Section 11(
e) has two distinct components: (1) the right to “reasonable bail” in terms of quantum of any monetarycomponent and any other conditions that might be imposed; and (2) the right not to be denied bail without “just cause”. [28] In R. v. Morales, (SCC), [1992] 3 S.C.R. 711, this Court struck down the component of s.515(10)(
b) Cr. C. that authorized pre-trial detention on the ground that detaining the accused was necessary in the “public interest”. TheCourt held that this wording was vague and imprecise and that it authorized a “standardless sweep” allowing a “court [to] orderimprisonment whenever it [saw] fit”: p. 732. [29] In 1997, Parliament therefore changed the wording of s. 515(10) and also added para. (
c) to it: Criminal LawImprovement Act, 1996, S.C. 1997, c. 18, s. 59(2). The detention of an accused could then be justified “on any other just cause beingshown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in theadministration of justice”. At the time, Parliament had not drawn up a list of circumstances the justice was required to consider in thisanalysis. [30] The validity of that provision was the issue before the Court in Hall. The Court held that the first part of s. 515(10)(
c) Cr. C., which authorized the denial of bail for “any other just cause”, was unconstitutional because it was inconsistent with thepresumption of innocence and with s. 11(
e) of the Charter. The Court found that this wording conferred a broad discretion on justices togrant or deny bail in that it did not specify any particular basis upon which bail could be denied: Hall, at para. 22. However, the balanceof s. 515(10)(
c) Cr. C. was found to be constitutional. [31] In 2008, Parliament amended s. 515(10)(
c) Cr. C. so as to make it consistent with the Court’s decision in Hall:Tackling Violent Crime Act, S.C. 2008, c. 6, s. 37(5). That version of s. 515(10)(
c) Cr. C., which is still in force today, is the one at issuein this appeal: (
c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all thecircumstances, including (
i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of anoffence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. The remainder of s. 515(10) Cr. C. is reproduced, together with other relevant statutory provisions, in the Appendix at the end of thesereasons.
(2) Principles From Hall [32] The central issue in Hall was the constitutionality of s. 515(10)(
c) Cr. C. However, the Court provided someguidance on how to interpret this provision. (
a) Basis for Section 515(10)(
c) Cr. C. [33] McLachlin C.J., writing for the majority of the Court, explained that in some circumstances it may be necessary todeny an accused bail, even where there is no risk he or she will not attend trial or may reoffend or interfere with the administration ofjustice: Hall, at para. 25. According to the Chief Justice, “[w]here justice is not seen to be done by the public, confidence in the bailsystem and, more generally, the entire justice system may falter”: para. 26. Yet, she wrote, “[p]ublic confidence is essential to the properfunctioning of the bail system and the justice system as a whole”: para. 27, citing Valente v. The Queen, (SCC), [1985] 2S.C.R. 673, at p. 689. (
b) Distinctiveness of the Ground Set Out in Section 515(10)(
c) Cr. C. [34] McLachlin C.J. also explained that s. 515(10)(
c) Cr. C. creates not a ground for detention that might be characterizedas “residual” in the sense that it applies only as a last resort, but one that is separate and distinct: Bail denial to maintain confidence in the administration of justice is not a mere “catch-all” for cases where the first twogrounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories. The same facts
may be relevant to all three heads. . . . But that does not negate the distinctiveness of the three grounds. [Emphasis added.] (Hall, at para. 30) (
c) Test Under Section 515(10)(
c) Cr. C. [35] The Chief Justice did not elaborate at length on the analysis to be conducted by a justice who must determinewhether s. 515(10)(
c) Cr. C. applies. However, I will reproduce the following remarks: Section 515(10)(
c) sets out specific factors which delineate a narrow set of circumstances under which bail can be deniedon the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the factthe accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into questionthe public’s confidence in the administration of justice.
Whether such a situation has arisen is judged by all the circumstances, but inparticular the four factors that Parliament has set out in s. 515(10)(c) — the apparent strength of the prosecution’s case, the gravity of thenature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment. . . . This, then, is Parliament’s purpose: to maintain public confidence in the bail system and the justice system as a whole. . . .Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified.
The judgecannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on thefactors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and relatedcircumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in theadministration of justice. . . . [T]he provision does not authorize a “standardless sweep” nor confer open-ended judicial discretion.
Rather,it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. In sum, it is notoverbroad. [Emphasis added.] (Hall, at paras. 40-41) [36] I will come back to Hall below and consider certain passages I have not discussed here.
(3) Principles That Must Guide the Analysis (
a) Rejecting a Narrow Application of Section 515(10)(
c) Cr. C. [37] The appellant submits that, despite the very clear principles enunciated in Hall, the courts have artificially addedfactors to s. 515(10)(
c) Cr. C. for the avowed purpose of restricting its scope and limiting the cases in which its application is justified.The appellant asserts that such an approach must be rejected. [38] The respondent counters that it follows from the principles established in Hall that the cases in which s. 515(10)(c)applies will be few and far between.
The respondent submits that the four factors must be assigned a relative weight and that the justicemust not lose sight of the key question, namely whether confidence in the administration of justice would be maintained if the accusedwere released. [39] It is true that some decisions reflect a strict application of s. 515(10)(c): see, e.g., R. v. Thomson (2004), (ON SC), 21 C.R. (6th) 209 (Ont. S.C.J.); R. v. B. (A.) (2006), (ON SC), 204 C.C.C. (3d) 490 (Ont.S.C.J.); R. v. Pichler, 2009 ABPC 24; R. v. Teemotee, 2011 NUCJ 17. This approach has also been adopted by some appellate courts.
Forexample, the British Columbia Court of Appeal and the Ontario Court of Appeal have stated that the use of s. 515(10)(
c) is justified onlyin rare or exceptional circumstances: R. v. Bhullar, 2005 BCCA 409, at paras. 62 and 65; R. v. Brotherston, 2009 BCCA 431, 71 C.R.(6th) 81, at paras. 30 and 35; R. v. LaFramboise (2005), (ON CA), 203 C.C.C. (3d) 492 (Ont. C.A.), at para. 30. Avariant of this prerequisite is that s. 515(10)(
c) must be used “sparingly”: LaFramboise, at para. 30; R. v. D. (R.), 2010 ONCA 899, 273C.C.C. (3d) 7, at paras. 51-53. The Saskatchewan Court of Appeal has also held that s. 515(10)(
c) requires that there be “somethingmore”, something in addition to the four factors set out in it: R. v. Blind (1999), (SK CA), 139 C.C.C. (3d) 87, atpara. 16. Although the latter case predated this Court’s decision in Hall, this statement has been reiterated since Hall, including by theOntario Court of Appeal: LaFramboise, at para. 38. In a judgment subsequent to LaFramboise, the Ontario Court of Appeal foundinstead that the words “something more” were simply a way to convey the need to use s. 515(10)(
c) sparingly: D. (R.), at para. 53.However, it expressed the view that the third ground for detention is not limited to the most heinous of offences and can be invoked evenif the community has not experienced the same horror and fear as was the case in Hall. [40] I see two reasons — one based on legislation and the other on the case law — why Canadian appellate courts mayhave adopted such
interpretations. [41] First, the former wording of s. 515(10) Cr. C. — the one in effect, inter alia, at the time of Morales — specified twogrounds for pre-trial detention, a primary ground and a secondary ground. The primary ground, set out in s. 515(10)(a), was thatdetention of the accused was necessary “to ensure his or her attendance in court in order to be dealt with according to law”.
Thesecondary ground, under s. 515(10)(b), was that detention of the accused was necessary “in the public interest or for the protection orsafety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is releasedfrom custody, commit a criminal offence or interfere with the administration of justice”. An accused could be detained on the secondaryground only if detention was not justified on the primary ground set out in s. 515(10)(a).
It was the secondary ground for detention thatwas at issue in Morales and, as I mentioned above, its “public interest” component was struck down by this Court. However, since thechange made to the wording in 1997, s. 515(10) has no longer provided for a hierarchy of grounds for detention. [42] Second, it seems to me that the position taken by certain courts originates in a misinterpretation of Hall.
As JusticeTrotter points out, there are cases in which courts, although acknowledging the authority of the Chief Justice’s reasons in Hall, haveactually seemed to prefer the minority’s reasons: The Law of Bail in Canada (3rd ed. (loose-leaf)), at p. 3-45. The dissenting judgeswould have struck down s. 515(10)(
c) Cr. C. in its entirety, since they did not think it lent itself to a piecemeal analysis: Hall, at para. 88.
In their view, the factors listed in that provision served as a “facade of precision”, and it was difficult to see how they could promote theproper administration of justice in cases in which the grounds set out in s. 515(10)(
a) and (
b) were not already applicable: paras. 98-99.They were also of the opinion that the phrase “maintain confidence in the administration of justice” essentially revived the old “publicinterest” ground that the Court had struck down in Morales and invoked “similarly vague notions of the public image of the criminaljustice system”: para. 104. Since Hall, some courts have therefore found, using the minority’s reasons to bolster this view, that themajority’s reasons advocated a restrictive
interpretation of s. 515(10)(c): Trotter, at p. 3-45. [43] The crime at issue in Hall was a particularly heinous one: the murder of a woman who had 37 slash wounds on herbody. Her assailant had intended to cut her head off. The murder had caused significant public concern. The accused had applied for bail,which the justice had denied on the basis of s. 515(10)(
c) Cr. C. [44] This Court described the crime as “heinous and unexplained”: Hall, at para. 25. It also quoted a comment from R. v.Rondeau (1996), (QC CA), 108 C.C.C. (3d) 474 (C.A.), at p. 480, that [translation] “[t]he more a crime like thepresent one is unexplained and unexplainable, the more worrisome bail becomes for society”: Hall, at para. 25. I note that the decision inRondeau concerned what was at that time the secondary ground for detention, that is, the need to detain the accused for the protection orsafety of the public. Section 515(10)(
c) Cr. C. was not yet in force when that case was decided. [45] The following passage from Hall is also worth reproducing: Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain theaccused risks losing the public confidence upon which the bail system and the justice system as a whole repose. [para. 40] [46] I am of the opinion that some courts have misinterpreted this Court’s decision in Hall.
First of all, the Court’scomments must be viewed in the context of that case and analyzed in light of the case’s very specific circumstances: the crime was anextremely horrific one. It was therefore natural for the Court to take this into account when applying s. 515(10)(
c) Cr. C. The Court’sdescription of the crime as horrific, heinous and unexplained was simply an observation, a description of the facts considered by theCourt in its analysis of s. 515(10)(
c) Cr. C. It cannot be read as imposing conditions or prerequisites. [47] In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guidejustices in their analysis under s. 515(10)(c). Apart from the fact that the provision itself does not even refer to such a criterion, I considerthe concept ambiguous and confusing. What is meant by an “unexplainable” crime? Is it a crime against a random victim? A crime thatcould be committed only by a person who is not rational?
An especially horrific crime? [48] Moreover, many crimes may be “explainable” in one way or another; for example, it may be that the assailant wasprovoked by the victim or that he or she had a mental illness or was intoxicated. From this perspective, the “unexplainable” crimecriterion is of little assistance. [49] The application of a criterion based on the notion of an “unexplainable” crime could also lead to undesirableconclusions. Crimes that are truly heinous and horrific might not satisfy it.
Such a criterion could therefore give the public theimpression that justices are “justifying” certain crimes, that is, crimes that are “explainable”. Although this Court used the words“unexplained and unexplainable” in Hall in referring to the murder at issue in that case, its decision was based, first and foremost, on thebrutal and heinous nature of the crime, the strong evidence tying the accused to the crime and the fact that people in the community wereafraid: para. 25. In any event, the drift in the case law since Hall and the reasons I have stated demonstrate the need to limit recourse tosuch a criterion.
As much as possible, it would also be wise for justices hearing applications for release to avoid attaching such a label tothe circumstances of the alleged crimes that come before them so as not to give the public the impression that they are “justifying” them. [50] Furthermore, I agree with the appellant that detention may be justified only in rare cases, but that this is simply aconsequence of the application of s. 515(10)(
c) and not a precondition to its application, a criterion a court must consider in its analysis orthe purpose of the provision. [51] This
interpretation is consistent with the following comment made by this Court in Hall: While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it isessential that a means of denying bail be available. [Emphasis added; para. 31.] [52] I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice. Howwould such a criterion be assessed? Should justices consider how many cases have been heard (in their jurisdictions, in Canada, in thelast year, etc.) and, at the same time, ensure that cases of detention based on s. 515(10)(
c) will remain “rare” if they order detention inthe cases before them? Should a justice review the cases in which detention has been ordered and determine whether the facts of the casebefore him or her are the same (or nearly the same) as the facts of those cases? In any event, it seems to me that a “rareness” ofcircumstances criterion would prompt justices to engage in a comparative exercise and thus to move away from the careful examinationof the circumstances of individual cases that the situation requires.
In my opinion, a comparative approach such as this could potentiallyundermine the public’s confidence in the administration of justice. [53] Moreover, the appellant correctly points out that s. 515(10)(
c) Cr. C. is worded clearly and that it does not requireexceptional or rare circumstances. This
interpretation is consistent with this Court’s recent decision in R. v. Summers, 2014 SCC 26,[2014] 1 S.C.R. 575, which concerned the sentencing provisions of s. 719(3) and (3.1) Cr. C. Section 719(3) provides that in determiningthe sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person asa result of the offence and may credit a maximum of one day for each day spent in custody. However, s. 719(3.1) specifies that, “if thecircumstances justify it”, the maximum can be increased to one and one-half days for each day spent in custody.
The Court interpretedthis provision as follows: . . . this provision is free of any language limiting the scope of what may constitute “circumstances”. The legislature couldeasily have provided that only “exceptional circumstances” or “circumstances other than the loss of eligibility for early release and
parole” justify enhanced credit. As Cronk J.A. observed, language limiting the scope of the word “circumstances” is used elsewhere in the CriminalCode.
For example, reference is made to “exceptional circumstances” or “compelling circumstances” in s. 672.14(3) (fitness assessmentslast no longer than 30 days, except they may last for 60 if “compelling circumstances” so warrant), s. 672.47(2) (when an accused isfound unfit to stand trial, a disposition must be made within 45 days but, in “exceptional circumstances”, may be made within 90 days)and s. 742.6(16) (when an offender breaches a conditional sentence order, in “exceptional cases” some of the suspended sentence may bedeemed to be time served).
The absence of qualifications on “circumstances” in s. 719(3.1) is telling since Parliament did restrict enhanced credit,withholding it from offenders who have been denied bail primarily as a result of a previous conviction (s. 515(9.1)), those whocontravened their bail conditions (ss. 524(4)(
a) and 524(8)(a)), and those who committed an indictable offence while on bail (ss. 524(4)(
b) and 524(8)(b)). Parliament clearly turned its attention to the circumstances under which s. 719(3.1) should not apply, but did notinclude any limitations on the scope of “circumstances” justifying its application. [Underlining added.] (Summers, at paras. 37-39) [54] In conclusion, the application of s. 515(10)(
c) is not limited to exceptional circumstances, to “unexplainable” crimesor to certain types of crimes such as murder. The Crown can rely on s. 515(10)(
c) for any type of crime, but it must prove — except inthe cases provided for in s. 515(6) — that the detention of the accused is justified to maintain confidence in the administration of justice. (
b) Circumstances Set Out in Section 515(10)(
c) Cr. C. [55] Section 515(10)(
c) expressly refers to four circumstances that must be considered by a justice in determiningwhether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each ofthese circumstances — or factors — and consider their combined effect. This is a balancing exercise that will enable the justice to decidewhether detention is justified. [56] It must be kept in mind that, at this stage of criminal proceedings, the accused is still presumed innocent regardlessof the gravity of the offence, the strength of the prosecution’s case or the possibility of a lengthy term of imprisonment. (
i) Apparent Strength of the Prosecution’s Case [57] An interim release hearing is a
summary proceeding in which more flexible rules of evidence apply. As a result,some of the evidence admitted at this hearing may later be excluded at trial. As Justice Trotter notes, it may be difficult to assess thestrength of the prosecution’s case at such a hearing: “The expeditious and sometimes informal nature of a bail hearing may reflect anunrealistically strong case for the Crown” (p. 3-7). [58] Despite these difficulties inherent in the release process, the justice must determine the apparent strength of theprosecution’s case.
On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed theoffence, and the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and thereliability of scientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at that hearingmust consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his orher balancing exercise.
For example, physical evidence may be more reliable than a mere statement made by a witness, andcircumstantial evidence may be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparentstrength of the case. [59] On the other hand, the justice must also consider any defence raised by the accused. Rather than raising a defence atthe initial hearing, the latter will most likely not do so before the release hearing held upon completion of the preliminary inquiry, andmay not even raise one before trial.
If the accused does raise a defence, however, this becomes one of the factors the justice must assess,and if there appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of theprosecution’s case. As the Quebec Court of Appeal noted in a relatively recent decision, [translation] “it would be unfair to allow theprosecution to state its case if the justice is not in a position to consider not only the weaknesses of that case, but also the defences itsuggests”: R. v.
Coates, 2010 QCCA 919, at para. 19 . (ii) Gravity of the Offence [60] For the purposes of s. 515(10)(c), what the justice must determine is the “objective” gravity of the offence incomparison with the other offences in the Criminal Code.
This is assessed on the basis of the maximum sentence — and the minimumsentence, if any — provided for in the Criminal Code for the offence. (iii) Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm Was Used [61] Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence thatmight be relevant under s. 515(10)(c), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that itwas committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerableperson (for example, a child, an elderly person or a person with a disability).
If the offence was committed by several people, the extentto which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencingpurposes can also be taken into account. (iv) Fact That the Accused Is Liable for a Potentially Lengthy Term of Imprisonment [62] The fourth circumstance set out in s. 515(10)(
c) is “the fact that the accused is liable, on conviction, for a potentiallylengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of
imprisonment for a term of three years or more”. [63] Although it is not desirable, for the purposes of s. 515(10)(
c) Cr. C., to establish a strict rule regarding the number ofyears that constitutes a “lengthy term of imprisonment”, some guidance is nonetheless required for the exercise to be undertaken byjustices in this regard. [64] First of all, since I have found that no crime is exempt from the possible application of s. 515(10)(
c) Cr. C., it is self-evident that the words “lengthy term of imprisonment” do not refer only to a life sentence. [65] Moreover, to determine, on a case-by-case basis, whether the accused is actually liable for a potentially “lengthyterm of imprisonment”, the justice must consider all the circumstances of the case known at the time of the hearing, as well as theprinciples for tailoring the applicable sentence.
But this does not mean that the justice would be justified in embarking on a complexexercise to calculate the sentence the accused might receive: it must be borne in mind that interim release occurs at the beginning of thecriminal process and that the justice must avoid acting as a substitute for the trial judge. That being said, there will be cases in which aclaim of mitigating or aggravating circumstances appears to have sufficient merit for it to be open to the justice to consider it indetermining whether the accused is liable for a potentially “lengthy term of imprisonment”.
As far as possible, therefore, this fourthcircumstance is assessed subjectively, unlike the second circumstance — the gravity of the offence — which is assessed objectively. (
c) The Listed Circumstances Are Not Exhaustive [66] The appellant, relying on R. v. Mordue (2006), (ON CA), 223 C.C.C. (3d) 407 (Ont. C.A.),submits that a detention order must be made when the four circumstances set out in s. 515(10)(
c) weigh in favour of that result, unlessthere are other “circumstances” that might justify a release order. [67] In my opinion, the appellant is mistaken. [68] Section 515(10)(
c) could not be worded more clearly: it refers to “all the circumstances, including . . .”. In myopinion, Parliament would have worded this provision differently (although I will not comment on the validity of such a wording) if ithad intended a detention order to be automatic where the four listed circumstances weigh in favour of such an order. In fact, Parliamentintended the opposite. As the Chief Justice stated in Hall, a justice dealing with an application for detention based on s. 515(10)(
c) mustconsider all the relevant circumstances, but must focus particularly on the factors Parliament has specified: para. 41. The automaticdetention argument also seems to be inconsistent with the following statement by the Chief Justice, at para. 41: At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, areasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.[Emphasis added.] [69] Moreover, the automatic detention argument disregards the fact that the test to be met under s. 515(10)(
c) is whetherthe detention of the accused is necessary to maintain confidence in the administration of justice. The four listed circumstances are simplythe main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him orher, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. Thisis the provision’s purpose.
Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this isthe ultimate question the justice must answer, and it must therefore guide him or her in making a determination. The argument thatdetention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancingexercise required by s. 515(10)(
c) and with the purpose of that exercise. [70] Finally, it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinalrule and detention, the exception: Morales, at p. 728. To automatically order detention would be contrary to the “basic entitlement to begranted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11(
e) of the Charter: Pearson, at p. 691. Thisentitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d)of the Charter: Hall, at para. 13. These fundamental rights require the justice to ensure that interim detention is truly justified havingregard to all the relevant circumstances of the case. [71] Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)(c)Cr. C., I think it will be helpful to give a few examples.
Section 515(10)(c)(iii) refers to the “circumstances surrounding the commissionof the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition,membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impacton society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of theaccused will be held at a much later date. (
d) Meaning of “Public” [72] I should point out that although the French version of s. 515(10)(
c) refers to “la confiance du public” (publicconfidence) — “sa détention est nécessaire pour ne pas miner la confiance du public envers l’administration de la justice, compte tenude toutes les circonstances, notamment les suivantes . . .” — the word “public” does not actually appear in the provision’s Englishversion. However, this Court has confirmed that detention under this provision is based on the need to maintain public confidence in theadministration of justice: Hall, at para. 41. This means that the justice’s balancing of all the circumstances under s. 515(10)(
c) mustalways be guided by the perspective of the “public”. [73] In Mordue, the Ontario Court of Appeal provided an interesting analysis of the relationship between “publicconfidence” for the purposes of s. 515(10)(
c) and the “safety of the public” factor set out in s. 515(10)(b): Public fear and concern about safety, while relevant, are not the exclusive considerations in assessing the public’sconfidence in the administration of justice. The effect of the accused’s release on confidence in the administration of justice must be
considered more broadly. Limiting the analysis of confidence in the administration of justice to the public’s safety concerns results in the tertiaryground amounting to little more than a recapitulation of the secondary ground. . . . Here, the bail judge placed decisive weight on the quality of the respondent’s bail arrangements. By doing so, he erred bynot considering whether the tertiary ground established a separate and distinct basis for denying bail.
Having quite appropriatelyconsidered the level of public concern about safety in this case, the bail judge erred by not going on to consider the effect the release ofthe respondent would have more broadly on the public confidence in the administration of justice. [Emphasis added; paras. 23-25.] [74] In Hall, this Court explained that the “public” in question consists of reasonable members of the community who areproperly informed about “the philosophy of the legislative provisions, Charter values and the actual circumstances of the case”: para.41, quoting R. v.
Nguyen (1997), (BC CA), 119 C.C.C. (3d) 269 (B.C.C.A.), at para. 18. [75] In a pre-Hall decision concerning the “public interest” ground formerly provided for in s. 515(10)(
b) Cr. C., theQuebec Court of Appeal stated the following: [translation] With respect to the perception of the public, as we know, a large part of the Canadian public often adopts anegative and even emotional attitude towards criminals or [potential] criminals. The public wants to see itself protected, see criminals inprison and see them punished severely. To get rid of a criminal is to get rid of crime. It [unjustifiably] perceives the judicial system . . .and the administration of justice in general as too indulgent, too soft, too good to the criminal.
This perception, almost visceral in respectof crime, is surely not the perception which a judge must have in deciding the issue of interim release. If this were the case, personscharged with certain types of offences would never be released because the perception of the public is negative with respect to the type ofcrime committed, while others, on the contrary, would almost automatically be released where the public’s perception is neutral or moreindulgent. . . .
Therefore, the perception of the public must be situated at another level, that of a public reasonably informed about oursystem of criminal law and capable of judging and perceiving without emotion that the application of the presumption of innocence, evenwith respect to interim release, has the effect that people, who may later be found guilty of even serious crimes, will be released for theperiod between the time of their arrest and the time of their trial. In other words, the criterion of the public perception must not be that ofthe lowest common denominator. [Emphasis added.] (R. v.
Lamothe (1990), (QC CA), 58 C.C.C. (3d) 530, at p. 541) [76] In my opinion, these comments are still relevant. [77] Although the “public interest” ground was subsequently held to be unconstitutional, these passages remain helpful inunderscoring the fact that the word “public” used in the context of the new s. 515(10)(
c) does not mean Canadians who tend to reactimpulsively. This being said, although it is true that the public in question consists of reasonable, well-informed persons, and not overlyemotional members of the community, it seems to me that some of the decisions have rendered the word “public” meaningless in thiscontext. Parliament made an express choice by using the word “public” in the French version of s. 515(10)(
c) in requiring that the courtstake confidence in the administration of justice into account in deciding whether an accused should be detained pending trial. It referrednot to legal experts or judges, but to the “public”. Meaning must therefore be given to this legislative choice. Public confidence cannot beequated with the confidence of legal experts in the administration of justice. The Canadian public — even its most knowledgeablemembers — cannot be expected to have the same level of legal knowledge as judges or lawyers. That would distort the meaning of theword “public”.
It would also disregard the purpose of this provision, which is to maintain public confidence in the administration ofjustice. [78] I note that this position is similar to the one taken by this Court concerning s. 24(2) of the Charter, which providesfor the exclusion of evidence obtained in violation of the Charter if “the admission of it in the proceedings would bring theadministration of justice into disrepute”. In R. v.
Collins, (SCC), [1987] 1 S.C.R. 265, Lamer J., writing for the majority,put the relevant question in figurative terms: “Would the admission of the evidence bring the administration of justice into disrepute inthe eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?” (p. 282, quoting Y.-M. Morissette,“The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What To Do and What Not To Do” (1984), 29 McGillL.J. 521, at p. 538).
Lamer J. stated that “[t]he reasonable person is usually the average person in the community, but only when thatcommunity’s current mood is reasonable”: Collins, at p. 282. He explained that the reasonable person test “serves as a reminder to eachindividual judge that his discretion is grounded in community values, and, in particular, long term community values. He should notrender a decision that would be unacceptable to the community when that community is not being wrought with passion or otherwiseunder passing stress due to current events”: ibid., at pp. 282-83; see also R. v.
Burlingham, (SCC), [1995] 2 S.C.R. 206,at para. 142. [79] Thus, a reasonable member of the public is familiar with the basics of the rule of law in our country and with thefundamental values of our criminal law, including those that are protected by the Charter. Such a person is undoubtedly aware of theimportance of the presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteedby our Constitution.
He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and isaware of the adage that “justice delayed is justice denied”: R. v. Trout, 2006 MBCA 96, 205 Man. R. (2d) 277, at para. 15. Finally, areasonable member of the public knows that a criminal offence requires proof of culpable intent (mens rea) and that the purpose ofcertain defences is to show the absence of such intent. A well-known example of this type of defence is the mental disorder defence. Theperson contemplated by s. 515(10)(
c) Cr. C. therefore understands that such a defence, once established, will enable an accused to avoidcriminal responsibility. However, it would be going too far to expect the person in question to master all the subtleties of complexdefences, especially where there is overwhelming evidence of the crime, the circumstances of the crime are heinous and the accusedadmits committing it. [80] In short, the person in question in s. 515(10)(
c) Cr. C. is a thoughtful person, not one who is prone to emotionalreactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values. But he
or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or thesubtleties of criminal intent and of the defences that are available to accused persons. [81] It is of course not easy for judges to strike an appropriate balance between the unrealistic expectations they mighthave for the public on the one hand, and the need to refuse to yield to public reactions driven solely by emotion on the other.
Thisexercise may be particularly difficult in this era characterized by the multiplication and diversification of information sources, access to24-hour news reports and the advent of social media. [82] Canadians may in fact think they are very well informed, but that is unfortunately not always the case. Moreover,people can also make their reactions known much more quickly, more effectively and on a wider scale than in the past, in particularthrough the social media mentioned above, which are conducive to chain reactions.
The courts must therefore be careful not to yield topurely emotional public reactions or reactions that may be based on inadequate knowledge of the real circumstances of a case. [83] However, the courts must also be sensitive to the perceptions of people who are reasonable and well informed. Thisenables the courts to act both as watchdogs against mob justice and as guardians of public confidence in our justice system. It wouldtherefore be dangerous, inappropriate and wrong for judges to base their decisions on media reports that are in no way representative of awell-informed public.
Indeed, the Quebec Court of Appeal recognized this risk in its recent decision in R. v. Turcotte, 2014 QCCA 2190: [translation] The press clippings show how risky it is to rely on this mode of proof. They contain several differentopinions that vary in the degree to which they are balanced, objective, moderate or superficial. Many of them contain inaccurate facts ordo not mention the essential facts. Most of them say nothing about the legal principles that must be applied in making release decisions.Certain opinions stir up anger and distort the debate.
Few accurately report the facts and correctly state the applicable principles. On thewhole, it must be acknowledged that they do not satisfy the reasonable person test defined in the case law. [para. 68 ] [84] Having said this, I wish to point out that this does not mean the courts must automatically disregard evidence thatcomes from the news media. It must be recognized that the media are part of life in society and that they reflect the opinions of certainsegments of the Canadian public. In Canadian Broadcasting Corporation v.
New Brunswick (Attorney General), (SCC),[1991] 3 S.C.R. 459, at p. 475, this Court noted: “The media have a vitally important role to play in a democratic society. It is the mediathat, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which maysignificantly affect their lives and well-being.” Such opinion evidence can therefore be considered by the courts when it is admissibleand relevant.
This will be the case where it corresponds to the opinion of the reasonable person I described above. [85] I should mention, however, that since Turcotte has not been brought before this Court, it would be inappropriate forme to speak to the correctness of the Court of Appeal’s conclusion with respect to release in that case. I will simply observe that thesoundness of that conclusion must be assessed in light of the principles I have already outlined. [86] In short, there is not just one way to undermine public confidence in the administration of justice.
It may beundermined not only if a justice declines to order the interim detention of an accused in circumstances that justify detention, but also if ajustice orders detention where such a result is not justified.
(4) Conclusion on the Application of Section 515(10)(
c) Cr. C. [87] I would summarize the essential principles that must guide justices in applying s. 515(10)(
c) Cr. C. as follows: • Section 515(10)(
c) Cr. C. does not create a residual ground for detention that applies only where the first twogrounds for detention ((
a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detentionof an accused. • Section 515(10)(
c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied onlyin rare cases or exceptional circumstances or only to certain types of crimes. • The four circumstances listed in s. 515(10)(
c) Cr. C. are not exhaustive. • A court must not order detention automatically even where the four listed circumstances support such a result. • The court must instead consider all the circumstances of each case, paying particular attention to the four listedcircumstances. • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide theanalysis. • No single circumstance is determinative. The justice must consider the combined effect of all the circumstancesof each case to determine whether detention is justified. • This involves balancing all the relevant circumstances.
At the end of this balancing exercise, the ultimate questionto be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to bemet under s. 515(10)(c). • To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of areasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actualcircumstances of the case.
However, this person is not a legal expert and is not able to appreciate the subtleties of the various defencesthat are available to the accused. • This reasonable person’s confidence in the administration of justice may be undermined not only if a court
declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [ 88 ] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. [ 89 ] Having completed the
interpretation of s. 515(10)(
c) Cr. C. , I will now consider the power of review of superior court judges, which enables them to vary release or detention orders made under s. 515(10)( a ), (
b) or (
c) Cr. C. B. Availability of a Review Under Sections 520 and 521 Cr. C. [ 90 ]
Section 520 Cr. C. gives an accused the right to apply to a judge for a review of an interim detention order made against him or her by a justice. Similarly, s. 521 Cr. C. enables the prosecutor to apply to a judge for a review of a release order made in relation to an accused. Sections 520 and 521 are worded similarly. In both cases, the application may be made “at any time before the trial”: ss. 520(1) and 521(1) Cr. C. It should be noted that these sections are limited to the review of orders made in connection with offences other than the ones referred to in s. 469 Cr.
C. [ 91 ] This is the first time this Court has considered the scope of ss. 520 and 521 Cr. C. Not all lower courts in Canada are agreed on the nature of this review process. Some consider it an appeal, which means that only an error of law or principle will provide a basis for a “review”. Others take the view that they have full discretion to vary the initial order even in the absence of an error. This approach is sometimes described as a “ de novo ” hearing, although, as Justice Trotter points out, a true de novo hearing is conducted as if there were no previous proceedings: p. 8-13.
Finally, other courts treat the review under ss. 520 and 521 Cr. C. as a hybrid remedy. In their view, the
section authorizes the accused and the prosecutor to present new evidence to show a change in circumstances, and to raise an error of law or principle by the justice to justify a review of the initial order. [ 92 ] For the reasons that follow, I am of the opinion that ss. 520 and 521 Cr. C. do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. Nonetheless, they establish a hybrid remedy and therefor
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