R. v. Morales

R. v. Morales
Collection
Supreme Court Judgments
Date
1992-11-19
Report
[1992] 3 SCR 711
Case number
22404
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Quebec
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 22404
Decision Content
R. v. Morales, [1992] 3 S.C.R. 711
Her Majesty The Queen Appellant
v.
Maximo Morales Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Manitoba,
the Attorney General for Alberta,
the Association des avocats de la défense de Montréal
and the Criminal Lawyers' Association Interveners
Indexed as: R. v. Morales
File No.: 22404.
1992: May 28; 1992: November 19.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.
on appeal from the superior court for quebec
Constitutional law ‑‑ Charter of Rights ‑‑ Right to bail ‑‑ Reverse onus provision ‑‑ Order of detention ‑‑ Accused required under circumstances set out in ss. 515(6) (a) and 515(6) (d) of Criminal Code to show cause why detention pending trial not justified ‑‑ Whether ss. 515(6)(a) and 515(6)(d) infringe s. 11 (e) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 515(6) (a), 515(6) (d).
Constitutional law ‑‑ Charter of Rights ‑‑ Right to bail ‑‑ Justification for detention in custody ‑‑ Detention of accused justified under s. 515(10) (b) of Criminal Code when necessary in the public interest or for the protection or safety of the public ‑‑ Whether criteria of public interest and public safety in s. 515(10) (b) infringe s. 11 (e) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Vagueness ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 515(10) (b).
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Presumption of innocence ‑‑ Right to bail ‑‑ Detention of accused justified under s. 515(10) (b) of Criminal Code when necessary in the public interest or for the protection or safety of the public ‑‑ Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Code to show cause why detention pending trial not justified ‑‑ Whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) infringe s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 515(6) (a), 515(6) (d), 515(10) (b).
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Reverse onus ‑‑ Bail ‑‑ Detention of accused justified under s. 515(10) (b) of Criminal Code when necessary in the public interest or for the protection or safety of the public ‑‑ Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Code to show cause why detention pending trial not justified ‑‑ Whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) infringe s. 11 (d) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 515(6) (a), 515(6) (d), 515(10) (b).
Constitutional law ‑‑ Charter of Rights ‑‑ Arbitrary detention ‑‑ Detention of accused justified under s. 515(10) (b) of Criminal Code when necessary in the public interest or for the protection or safety of the public ‑‑ Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Code to show cause why detention pending trial not justified ‑‑ Whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) infringe s. 9 of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 515(6) (a), 515(6) (d), 515(10) (b).
Criminal law ‑‑ Judicial interim release ‑‑ Order of detention ‑‑ Accused required under circumstances set out in ss. 515(6) (a) and 515(6) (d) of Criminal Code to show cause why detention pending trial not justified ‑‑ Whether ss. 515(6)(a) and 515(6)(d) infringe ss. 7 , 9 , 11 (d) or 11 (e) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 515(6) (a), 515(6) (d).
Criminal law ‑‑ Judicial interim release ‑‑ Justification for detention in custody ‑‑ Detention of accused justified under s. 515(10) (b) of Criminal Code when necessary in the public interest or for the protection or safety of the public ‑‑ Whether criteria of public interest and public safety in s. 515(10) (b) infringe ss. 7 , 9 , 11 (d) or 11 (e) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 515(10) (b).
The accused was charged with narcotics offences under ss. 4 and 5 of the Narcotic Control Act and s. 465(1) (c) of the Criminal Code . He is alleged to have participated in a major network to import cocaine into Canada. At the time of his arrest, he was awaiting trial for assault with a weapon, an indictable offence. The accused was denied bail and was ordered detained in custody until trial. Under the bail provisions of the Criminal Code , an accused is normally granted bail but pre‑trial detention is justified when the "detention is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice" (s. 515(10) (b)). Under s. 515(6), the onus is on the accused to show cause why the detention is not justified when he is charged with an indictable offence "that is alleged to have been committed while he was at large after being released in respect of another indictable offence" (s. 515(6) (a)), or charged with having committed a drug offence under s. 4 or 5 of the Narcotic Control Act or with conspiracy to commit any of these offences (s. 515(6) (d)). The accused's application for a review of the detention order, made to a superior court judge pursuant to s. 520 of the Code, was granted and he was released subject to a number of conditions. The judge held that pre‑trial detention is only justified where it is established that the accused will not appear for trial or would represent a danger to public safety if released. The Crown appealed to this Court. This appeal is to determine whether ss. 515(6) (a), 515(6) (d) and 515(10) (b) of the Criminal Code infringe ss. 7 , 9 , 11 (d) or 11 (e) of the Canadian Charter of Rights and Freedoms ; and, if so, whether the infringement is justified under s. 1 of the Charter .
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, McLachlin and Iacobucci JJ.: For the reasons given in Pearson, the "public safety" component of s. 515(10) (b) is constitutionally valid. Section 11 (d) of the Charter creates a procedural and evidentiary rule which operates at the trial requiring the prosecution to prove the guilt of the accused beyond a reasonable doubt. It has no application at the bail stage where guilt or innocence is not determined and where punishment is not imposed. The "public safety" component of s. 515(10) (b) therefore does not infringe s. 11 (d). With respect to s. 7 of the Charter , the accused's challenge should be determined under s. 11 (e) of the Charter because that section offers a highly specific guarantee which covers precisely his claim. The presumption of innocence is a principle of fundamental justice which applies at all stages of the criminal process, but its procedural requirements at the bail stage are satisfied whenever the requirements of s. 11 (e) are satisfied. This section creates a basic entitlement to be granted reasonable bail unless there is "just cause" to do otherwise. There is just cause to deny bail under s. 11 (e) if two criteria are met: the denial of bail must occur only in a narrow set of circumstances, and the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system. The "public safety" component of s. 515(10) (b) meets these criteria. First, bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. Second, the bail system does not function properly if an accused interferes with the administration of justice or commits crimes while on bail. While it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated. It is sufficient that the bail system establish a likelihood of dangerousness. The bail provisions of the Code also provide for substantial procedural safeguards against the inefficacy of predictions about dangerousness. Finally, with respect to s. 9 of the Charter , while the "public safety" component of s. 515(10) (b) provides for persons to be "detained" within the meaning of s. 9 , those persons are not detained "arbitrarily". Detention under the "public safety" component of s. 515(10) (b) is not governed by unstructured discretion. The "public safety" component sets out a process with fixed standards and sets specific conditions for bail. Furthermore, the bail process is subject to very exacting procedural guarantees. It follows that the "public safety" component of s. 515(10) (b) does not violate s. 9 .
The "public interest" component as a basis for pre‑trial detention under s. 515(10) (b) violates s. 11 (e) of the Charter , however, because it authorizes detention in terms which are vague and imprecise and thus authorizes a denial of bail without just cause. The term "public interest", as currently defined by the courts, is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way. Nor would it be possible to give that term a constant or settled meaning. The term gives the courts unrestricted latitude to define any circumstances as sufficient to justify pre‑trial detention but creates no criteria for defining these circumstances. No amount of judicial interpretation of the term "public interest" would be capable of rendering it a provision which gives any guidance for legal debate. Such unfettered discretion violates the doctrine of vagueness. This doctrine applies to all types of enactments and is not restricted to provisions which define an offence or prohibit certain conduct. The principles of fundamental justice preclude a standardless sweep in any provision which authorizes imprisonment. A standardless sweep does not become acceptable simply because it results from the discretion of judges and justices of the peace rather than the discretion of law enforcement officials.
The violation of s. 11 (e) is not justified under s. 1 of the Charter . Even if the term "public interest" is not too vague to constitute a limit "prescribed by law", it cannot be justified under the Oakes test. While the objectives of preventing crime and preventing interference with the administration of justice by those who are on bail are of sufficient importance to warrant overriding a constitutionally protected right, the "public interest" component of s. 515(10) (b) does not meet the proportionality test. There is no rational connection between the measure and the objectives. The provision is so vague that it does not provide any means to determine which accused are most likely to commit offences or interfere with the administration of justice while on bail. It accordingly authorizes pre‑trial detention in many cases which are not related to the objectives of the measure. Further, the measure does not impair rights as little as possible. The vague and overbroad concept of public interest permits far more pre‑trial detention than is required to meet the objectives. Finally, there is no proportionality between the effects of the measure and its objectives. By authorizing excessive pre‑trial detention, the effects of the limit far exceed the objectives of the measure. The "public interest" component of s. 515(10) (b) is thus unconstitutional. The offending words, specifically "in the public interest or", are severable and should be struck down pursuant to s. 52 of the Constitution Act, 1982 . The criteria of "public interest" and "public safety" in s. 515(10) (b) are disjunctive and striking down the specific offending provision does not defeat the unitary scheme envisaged by Parliament. The balance of the provision can stand as a functioning whole.
In light of Pearson, s. 515(6)(d) of the Code, to the extent that it requires the accused to show cause why detention is not justified, does not violate ss. 7 , 9 , 11 (d) or 11 (e) of the Charter .
This conclusion is also applicable to s. 515(6)(a) of the Code. Since s. 11(d) of the Charter is not applicable at the bail stage, s. 515(6) (a) therefore does not infringe s. 11 (d). With respect to s. 7 of the Charter , the accused's case should be analysed under s. 11 (e) rather than the more general provisions of s. 7 . While s. 515(6)(a) requires the accused to demonstrate that detention is not justified, thereby denying the basic entitlement under s. 11 (e) to be granted bail unless pre‑trial detention is justified by the prosecution, s. 515(6) (a) provides just cause to deny bail. First, the denial of bail occurs only in a narrow set of circumstances. Section 515(6) (a) applies only to indictable offences and denies bail only when the persons who have been charged with an indictable offence while on bail for another indictable offence do not show cause why detention is not justified. Second, the denial of bail is necessary to promote the proper functioning of the bail system. The special bail rules in s. 515(6) (a) do not have any purpose extraneous to the bail system, but rather merely establish an effective bail system in circumstances where there are reasonable grounds to believe that the normal bail system is permitting continuing criminal behaviour. By requiring the accused to justify bail, s. 515(6) (a) seeks to ensure that the objective of stopping criminal behaviour will be achieved. The scope of these special rules is thus carefully tailored to achieve a properly functioning bail system. With respect to s. 9 of the Charter , s. 515(6) (a) does not provide for "arbitrary" detention. Like s. 515(6)(d), s. 515(6)(a) sets out a process which is not discretionary and which is subject to fixed standards. Section 515(6) (a) contains highly structured criteria and sets out specific conditions for bail. In addition, the bail process is subject to very exacting procedural guarantees and subject to review by a superior court.
The Superior Court did not err in holding that pre‑trial detention is only justified where it is established that the accused will not appear for trial or would represent a danger to public safety if released. These two grounds are the only grounds specified in s. 515(10) which survive Charter challenge. However, the Superior Court did err in refusing to apply the procedure mandated by ss. 515(6) (a) and 515(6) (d), both of which are constitutionally valid. As a result, the matter must be remitted to the Superior Court for a new bail review under s. 520 in which ss. 515(6) (a) and 515(6) (d) are applied and s. 515(10) (b) is applied after severance of the words "in the public interest or".
Per L'Heureux‑Dubé and Gonthier JJ.: The reasons of Lamer C.J. were agreed with, except for his finding that the criterion of "public interest" in s. 515(10)(b) of the Code is unconstitutional on grounds of vagueness. Public interest, as referred to in s. 515(10) (b), falls within the purview of the concept of "just cause" in s. 11 (e) of the Charter and is intended to be one particularization of just cause. It is thus in terms of the entire concept that the meaning of public interest must be understood. The evaluation and elaboration of a "public interest" criterion must also proceed with reference to the particular context in which it is to operate. The identification of a measure of discretion conferred by means of a legislative provision cannot alone provide the basis for a constitutional evaluation of that provision.
The general sense of the phrase "public interest" refers to the special set of values which are best understood from the point of view of the aggregate good and are of relevance to matters relating to the well‑being of society. Public interest is at the heart of our legal system and inspires all legislation as well as the administration of justice. The breadth of the concept is a necessary aspect of a notion which accommodates a host of important considerations which permit the law to serve a necessarily wide variety of public goals. At the same time, the notion of public interest operates as a reference for the rules of law which bear upon legal determinations of when the interest of the public will be specially considered, the relationship which those interests will have to other interests which fall to be considered, and the extent to which the public interest is to be protected by the law.
A bail application does not involve a finding of guilt as to past conduct. It is rather concerned with governing future conduct during the interim period awaiting trial. What is at issue are the reasons for detention. The criterion set by the Charter is that of just cause. This implies (1) a cause or reason and (2) a proportionality between the reason and the deprivation of liberty that makes the cause "just". Public interest, as used in s. 515(10) , must be understood in this context and considered in relation to two main elements: the element of necessity, which involves a causal link between the public interest and the detention such as to make the detention necessary and not merely convenient or desirable and which is also an element of importance, weight or seriousness of the public interest such as to outweigh the accused's right to personal liberty; and the element of seriousness of the public interest, which serves to qualify the other element, namely the content of the considerations that may be included within the public interest criterion. The considerations to be weighed in determining the public interest are those which are consistent with the safeguarding of the fundamental values of the rule of law and the Charter , including the maintenance of order and security and a respect for the fundamental individual and collective rights of others. Also important is the consideration that the criterion of necessity is capable of encompassing circumstances which have not been foreseen, or are unforeseeable, but which undoubtedly provide just cause for denying bail within the meaning of s. 11 (e) of the Charter . Public interest, as used in s. 515(10) , thus provides for flexibility, not vagueness. Its dual requirements of public interest and necessity, which itself predicates a public interest of a serious nature, have meaning, give rise to legal debate and, though broad, are not vague but provide an adequate framework and limit for the exercise of judicial discretion and a means for controlling such exercise while at the same time allowing for the flexibility required for an effective administration of justice and implementation of the rule of law. It must be underlined that the bail process is subject to very exacting procedural guarantees which both structure and guide the exercise of judicial discretion.
Cases Cited
By Lamer C.J.
Applied: R. v. Pearson, [1992] 3 S.C.R. 000; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Hufsky, [1988] 1 S.C.R. 621; considered: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; referred to: R. v. Perron (1989), 51 C.C.C. (3d) 518, [1990] R.J.Q. 1774; R. v. Lamothe (1990), 58 C.C.C. (3d) 530, [1990] R.J.Q. 973; R. v. Bray (1983), 2 C.C.C. (3d) 325; R. v. Morgentaler, [1988] 1 S.C.R. 30; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Keegstra, [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Butler, [1992] 1 S.C.R. 452; Re Powers and the Queen (1972), 9 C.C.C. (2d) 533; R. v. Demyen (1975), 26 C.C.C. (2d) 324; R. v. Kingwatsiak (1976), 31 C.C.C. (2d) 213; R. v. Morenstein (1977), 40 C.C.C. (2d) 131; R. v. Dakin, [1989] O.J. No. 1348 (Q.L. Systems); R. v. Dickie (1979), 14 C.R. (3d) 110; R. v. Ghannime (1980), 18 C.R. (3d) 186; R. v. Garcia, [1984] C.S. 162; Adam v. La Reine, Sup. Ct. Montreal, No. 500‑27‑005960‑804, May 7, 1980; R. v. Mendelsohn, Sup. Ct. Montreal, No. 500‑27‑009188‑824, March 15, 1982; Procureur général du Canada v. Fuoco, Sup. Ct. Montreal, No. 500‑27‑034260‑820, November 11, 1982; Procureur général du Canada v. Zelman, Sup. Ct. Montreal, No. 500‑36‑000349‑871, June 19, 1987; R. v. Caruana, J.E. 85‑918; Procureur général du Canada v. Solitiero, R.J.P.Q. 88‑181; R. v. St‑Cyr, Sup. Ct. Hull, No. 550‑36‑000021‑863, August 5, 1986; R. v. Sarvghadi, Sup. Ct. Montreal, No. 500‑36‑000348‑873, June 17, 1987; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Wilson, [1990] 1 S.C.R. 1291; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Bradley (1977), 38 C.C.C. (2d) 283; R. v. Lebel (1989), 70 C.R. (3d) 83; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232.
By Gonthier J.
Referred to: R. v. Pearson, [1992] 3 S.C.R. 000; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Ghannime (1980), 18 C.R. (3d) 186; R. v. Dickie (1979), 14 C.R. (3d) 110; Attorney‑General v. Times Newspapers Ltd., [1973] 3 All E.R. 54; Hilton v. Braunskill, 481 U.S. 770 (1987).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 , 10 , 11 (b), 11 (d), 11 (e).
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 465(1) (c), 504 , 515(6) (a) [rep. & sub. c. 27 (1st Supp.), s. 83(3) ], 515(6)(d), 515(10)(a), 515(10)(b), 516, 518 [am. idem, ss. 84 and 185 ], 520 [am. idem, s. 86 ], 521 [am. idem, s. 87 ], 523(2) [rep. & sub. idem, s. 89 ], 525 [am. idem, s. 90 ], 526 [rep. & sub. idem, s. 91 ].
Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 4, 5.
Authors Cited
Canada. Committee on Corrections. Report of the Canadian Committee on Corrections. Ottawa: Queen's Printer, 1969.
Jacob, I. H. "The Inherent Jurisdiction of the Court" (1970), 23 C.L.P. 23.
Kiselbach, Daniel. "Pre‑trial Criminal Procedure: Preventive Detention and the Presumption of Innocence" (1988‑89), 31 Crim. L.Q. 168.
Landreville, Pierre, et Danielle Laberge. Détention sous garde et dangerosité, 1991.
Morris of Borth‑Y‑Gest, Lord. "The Interaction of Public Interest, Public Policy and Public Opinion in Relation to the Law" (1979), 10 Cambrian L. Rev. 29.
APPEAL from a judgment of the Quebec Superior Court* ordering the release of the accused under certain conditions. Appeal allowed.
Pierre Sauvé, for the appellant.
Christian Desrosiers, for the respondent.
Bernard Laprade, for the intervener the Attorney General of Canada.
J. A. Ramsay, for the intervener the Attorney General for Ontario.
Brian G. Wilford, for the intervener the Attorney General of Manitoba.
Goran Tomljanovic, for the intervener the Attorney General for Alberta.
Francis Brabant, for the intervener the Association des avocats de la défense de Montréal.
Bruce Duncan and Aimée Gauthier, for the intervener the Criminal Lawyers' Association.
//Lamer C.J.//
The judgment of Lamer C.J. and La Forest, Sopinka, McLachlin and Iacobucci JJ. was delivered by
Lamer C.J. -- This appeal was argued along with R. v. Pearson, [1992] 3 S.C.R. 000. Both cases involve the constitutionality of the bail provisions of the Criminal Code, R.S.C., 1985, c. C-46 , and for the first time require this Court to examine the scope of the right to bail under s. 11 (e) of the Canadian Charter of Rights and Freedoms .
I - Facts
The respondent Maximo Morales was arrested in December 1990. He was charged with trafficking in narcotics, possession of narcotics for the purpose of trafficking, importing narcotics and conspiracy to import narcotics, contrary to ss. 4 and 5 of the Narcotic Control Act, R.S.C., 1985, c. N-1, and s. 465(1) (c) of the Criminal Code . He is alleged to have participated in a major network to import cocaine into Canada. At the time of his arrest, Morales was awaiting trial for assault with a weapon, an indictable offence. He has subsequently been convicted of that offence.
A bail hearing was held shortly after Morales was arrested. Bail was denied and Morales was ordered detained in custody until trial. Morales then made an application under s. 520 of the Criminal Code for a review of this order. This application was heard by Boilard J. of the Quebec Superior Court on February 1, 1991. Boilard J. ordered Morales released, subject to a number of conditions.
On June 20, 1991, this Court granted the Crown leave to appeal the final judgment of Boilard J., [1991] 1 S.C.R. xiii. The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Manitoba and the Attorney General for Alberta have intervened in support of the position taken by the appellant Crown. The Association des avocats de la défense de Montréal and the Criminal Lawyers' Association have intervened in support of the position taken by the respondent.
II - Relevant Statutory and Charter Provisions
At issue in this appeal is the validity of ss. 515(6) (a), 515(6) (d) and 515(10) (b) of the Criminal Code , which read as follows:
515. ...
(6) Notwithstanding any provision of this section, where an accused is charged
(a) with an indictable offence, other than an offence listed in section 469, that is alleged to have been committed while he was at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,
...
(d) with having committed an offence under section 4 or 5 of the Narcotic Control Act or the offence of conspiring to commit an offence under section 4 or 5 of that Act,
the justice shall order that the accused be detained in custody until he is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified, but where the justice orders that the accused be released, he shall include in the record a statement of his reasons for making the order.
(10) For the purposes of this section, the detention of an accused in custody is justified only on either of the following grounds:
...
(b) on the secondary ground (the applicability of which shall be determined only in the event that and after it is determined that his detention is not justified on the primary ground referred to in paragraph (a)) that his detention is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice.
The relevant provisions of the Charter read as follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
11. Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
III - Judgment Below
Quebec Superior Court (Montreal, No. 500-36-000036-917, February 1, 1991)
Boilard J. reviewed the evidence and held that he was satisfied that Morales was an important member of a Columbian cocaine importing network. Boilard J. stated that in the not too distant past, such evidence would have been sufficient to justify ordering the accused to be detained in custody until trial. However, since R. v. Perron (1989), 51 C.C.C. (3d) 518, [1990] R.J.Q. 1774 (C.A.), and R. v. Lamothe (1990), 58 C.C.C. (3d) 530, [1990] R.J.Q. 973 (C.A.), the situation in Quebec had become "troubled". Boilard J. expressed disagreement with Perron and Lamothe, but held that those decisions had to be followed until they were modified by the Quebec Court of Appeal, or until another Canadian court of appeal had examined the situation and proposed another solution. Boilard J. made it clear that he was following Perron and Lamothe without enthusiasm.
According to Perron and Lamothe, pre-trial detention is only justified where it is established that the accused will not appear at trial or that release of the accused would represent a danger for the public. Beyond these situations, regardless of the nature of the offence, all accused must be granted bail. Boilard J. stated that he had no choice but to follow the rule which had been set down by the Quebec Court of Appeal.
As a result, Boilard J. ordered Morales released, subject to a number of conditions.
IV - Issues
The following constitutional questions were stated on July 10, 1991:
1.Does s. 515(10)(b) of the Criminal Code , which permits the preventive detention of an accused in the public interest or for the protection or safety of the public, limit ss. 7 , 9 , 11 (d) and 11 (e) of the Canadian Charter of Rights and Freedoms ?
2.If the answer to this question is affirmative, is s. 515(10) (b) of the Criminal Code a reasonable limit in a free and democratic society and justified under s. 1 of the Canadian Charter of Rights and Freedoms ?
3.Do ss. 515(6)(a) and 515(6)(d) of the Criminal Code limit ss. 7 , 9 , 11 (d) and 11 (e) of the Canadian Charter of Rights and Freedoms ?
4.If the answer to this question is affirmative, are ss. 515(6) (a) and 515(6) (d) of the Criminal Code a reasonable limit in a free and democratic society and justified under s. 1 of the Canadian Charter of Rights and Freedoms ?
V - Analysis
A. Validity of Section 515(10) (b)
Section 515 of the Criminal Code sets out "a liberal and enlightened system of pre-trial release" (see R. v. Bray (1983), 2 C.C.C. (3d) 325 (Ont. C.A.), at p. 328) under which an accused must normally be granted bail. There are only two grounds under which pre-trial detention of an accused is justified. The primary ground, set out in s. 515(10) (a), is that "detention is necessary to ensure [the accused's] attendance in court in order to be dealt with according to law". The validity of this primary ground is not at issue in this appeal. The secondary ground, set out in s. 515(10) (b), is that "detention is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice". The validity of this secondary ground is at issue in this appeal.
As the appellant submits, the secondary ground contains two separate components. Detention can be justified either in the "public interest" or for the "protection or safety of the public". In my view each of these components entails very different constitutional considerations. As a result, the following analysis considers the public interest and public safety components of s. 515(10) (b) separately.
(1) Public Interest
For the reasons which I gave in Pearson, I am of the view that the respondent's challenge to the grounds upon which bail may be denied, specifically the public interest and public safety criteria should be considered under the specific guarantees set out in s. 11 (e) rather than under s. 7 . However, as will appear in what follows, the analysis under s. 11 (e) will draw considerable support from the constitutional doctrine of vagueness which has been articulated as a principle of fundamental justice.
(i) Section 11 (e)
In Pearson, I noted that, pursuant to Charter s. 11 (e), there will be just cause for denial of bail if the denial can occur only in a narrow set of circumstances and if the denial is necessary to promote the proper functioning of the bail system.
In my view, the criterion of "public interest" as a basis for pre-trial detention under s. 515(10) (b) violates s. 11 (e) of the Charter because it authorizes detention in terms which are vague and imprecise. D. Kiselbach, "Pre-trial Criminal Procedure: Preventive Detention and the Presumption of Innocence" (1988-89), 31 Crim. L.Q. 168, at p. 186, describes "public interest" as "the most nebulous basis for detention". I agree with this characterization of the public interest component of s. 515(10) (b) and view it as a fatal flaw in the provision.
A very thorough review of the constitutional "doctrine of vagueness" was recently undertaken by Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. Gonthier J., speaking for the Court, held at p. 626 that the doctrine of vagueness is a consideration both as a principle of fundamental justice under s. 7 and in applying s. 1 :
Vagueness can be raised under s. 7 of the Charter , since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be "prescribed by law". Furthermore, vagueness is also relevant to the "minimal impairment" stage of the Oakes test....
After noting at p. 632 that "the threshold for finding a law vague is relatively high", Gonthier J. held at p. 643 that "a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate." The rationale for this conclusion was as follows (at pp. 639-40):
A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary.
Thus the inability of a vague law to frame the legal debate in a coherent manner violates the principles of fundamental justice in s. 7 and affects the analysis under s. 1. In the same way, there cannot be just cause for the denial of bail where the statutory criteria for denial are vague and imprecise.
All of the cases in which vagueness has been considered by this Court have involved provisions which define an offence or prohibit certain conduct: see R. v. Morgentaler, [1988] 1 S.C.R. 30; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 ("Prostitution Reference"); R. v. Keegstra, [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Butler, [1992] 1 S.C.R. 452, and Nova Scotia Pharmaceutical Society, supra. Section 515(10) (b) is somewhat different. It does not define an offence or prohibit conduct, but rather provides grounds on which pre-trial detention is authorized. The intervener the Attorney General for Ontario submits that this difference is sufficient to conclude that the doctrine of vagueness should not apply to s. 515(10) (b).
In my view, the doctrine of vagueness is applicable to s. 515(10) (b) because there cannot be just cause for denial of bail within the meaning of s. 11 (e) if the statutory criteria for denying bail are vague and imprecise. Nova Scotia Pharmaceutical Society, at p. 632, identified two rationales for the doctrine of vagueness, namely fair notice to the citizen and limitation of law enforcement discretion. Fair notice is "an understanding that certain conduct is the subject of legal restrictions" (p. 635), a factor which is not relevant to a provision like s. 515(10) (b) which does not prohibit conduct. However, limitation of law enforcement discretion is still a relevant factor. In the Prostitution Reference at p. 1157, I explained this rationale in terms of a "standardless sweep": "is the statute so pervasively vague that it permits a `standardless sweep' allowing law enforcement officials to pursue their personal predilections?". In my view the principles of fundamental justice preclude a standardless sweep in any provision which authorizes imprisonment. This is all the more so under a constitutional guarantee not to be denied bail without just cause as set out in s. 11 (e). Since pre-trial detention is extraordinary in our system of criminal justice, vagueness in defining the terms of pre-trial detention may be even more invidious than is vagueness in defining an offence.
I would also note that in Nova Scotia Pharmaceutical Society, at p. 642, this Court expressly stated that the doctrine of vagueness applies to all types of enactments:
Finally, I also wish to point out that the standard I have outlined applies to all enactments, irrespective of whether they are civil, criminal, administrative or other. The citizen is entitled to have the State abide by constitutional standards of precision whenever it enacts legal dispositions.
If the doctrine of vagueness aims to ensure that all dispositions are framed in terms which permit meaningful legal debate, then all dispositions are subject to this doctrine regardless of their form.
I am also unable to accept the submission of the intervener the Attorney General for Ontario that the doctrine of vagueness should not apply to s. 515(10) (b) because it does not authorize arbitrary practices by law enforcement officials but rather merely authorizes judicial discretion. A standardless sweep does not become acceptable simply because it results from the whims of judges and justices of the peace rather than the whims of law enforcement officials. Cloaking whims in judicial robes is not sufficient to satisfy the principles of fundamental justice.
A provision does not violate the doctrine of vagueness simply because it is subject to interpretation. To require absolute precision would be to create an impossible constitutional standard. As I stated in the Prostitution Reference at p. 1157:
The fact that a particular legislative term is open to varying interpretations by the courts is not fatal. As Beetz J. observed in R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 107, "(f)lexibility and vagueness are not synonymous". Therefore the question at hand is whether the impugned sections of the Criminal Code can be or have been given sensible meanings by the courts.
It seems apparent that, at the very least, the term "public interest" is subject to interpretation. It accordingly becomes necessary to determine whether it is capable of being given a constant and settled meaning by the courts.
The intervener the Attorney General for Ontario submits that the term "public interest" has been given a "workable meaning" by the courts. The Attorney General for Ontario cites a number of authorities which are said to establish this wor