R. v. Hall

R. v. Hall
Collection
Supreme Court Judgments
Date
2002-10-10
Neutral citation
2002 SCC 64
Report
[2002] 3 SCR 309
Case number
28223
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 28223
Decision Content
R. v. Hall, [2002] 3 S.C.R. 309, 2002 SCC 64
David Scott Hall Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General
of Quebec, the Criminal Lawyers’ Association (Ontario)
and the Association des avocats de la défense de Montréal Interveners
Indexed as: R. v. Hall
Neutral citation: 2002 SCC 64.
File No.: 28223.
2002: April 23; 2002: October 10.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Right to bail — Presumption of innocence — Vagueness — Whether part of s. 515(10) (c) of Criminal Code authorizing denial of bail “on any other just cause being shown” infringing presumption of innocence and right “not to be denied reasonable bail without just cause” — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 11 (e) — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10) (c).
Constitutional law — Charter of Rights — Right to bail — Vagueness — Whether part of s. 515(10) (c) of Criminal Code authorizing denial of bail in order “to maintain confidence in the administration of justice” infringing right “not to be denied reasonable bail without just cause” — Canadian Charter of Rights and Freedoms, s. 11 (e) — Criminal Code, R.S.C. 1985, c. C‑46, s. 515(10) (c).
Constitutional law — Charter of Rights — Remedy — First part of s. 515(10) (c) of Criminal Code authorizing denial of bail “on any other just cause being shown” inconsistent with Charter rights — Second part of s. 515(10) (c) authorizing denial of bail “to maintain confidence in the administration of justice” constitutional — Appropriate remedy — Constitution Act, 1982, s. 52 — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10) (c).
Criminal law — Judicial interim release — Justification for detention in custody — Accused denied bail under s. 515(10) (c) of Criminal Code in order “to maintain confidence in the administration of justice” — Whether bail judge erred in denying bail on that basis — Whether s. 515(10)(c) of Criminal Code unconstitutional — Canadian Charter of Rights and Freedoms, s. 11 (e) — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10) (c).
In 1999, a woman’s body was found with 37 wounds to her hands, forearms, shoulder, neck and face. Her assailant had tried to cut off her head. The murder caused significant public concern and a general fear that a killer was at large. Based on compelling evidence linking the accused to the crime, he was charged with first degree murder. He applied for bail. The bail judge held that pre-trial detention was not necessary “to ensure . . . attendance in court” nor for the “safety of the public” (s. 515(10) (a) and (b) of the Criminal Code ). He denied bail, however, under s. 515(10) (c) in order “to maintain confidence in the administration of justice” in view of the highly charged aftermath of the murder, the strong evidence implicating the accused, and the other factors referred to in para. (c). A superior court judge dismissed the accused’s habeas corpus application challenging the constitutionality of s. 515(10) (c). The Court of Appeal affirmed the decision.
Held (Iacobucci, Major, Arbour and LeBel JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Bastarache and Binnie JJ.: Determining the constitutionality of denying bail in order to maintain confidence in the administration of justice requires considering s. 515(10) (c) as a whole. The portion of s. 515(10) (c) permitting detention “on any other just cause being shown” is unconstitutional. Because the impugned phrase confers an open‑ended judicial discretion to refuse bail, it is inconsistent with both s. 11 (e) of the Canadian Charter of Rights and Freedoms , which guarantees a right “not to be denied reasonable bail without just cause”, and the presumption of innocence. It is a fundamental principle of justice that an individual cannot be detained by virtue of a vague legal provision. Parliament must lay out narrow and precise circumstances in which bail can be denied. The impugned phrase is not justified under s. 1 of the Charter . Its generality impels its failure of the proportionality branch of the Oakes test. To the extent the phrase is inconsistent with the Charter , it is void. The next phrase in s. 515(10) (c) (“without limiting the generality of the foregoing”) is also void since it only confirms the generality of the preceding phrase.
The balance of s. 515(10) (c), which authorizes the denial of bail in order “to maintain confidence in the administration of justice”, is valid. It provides a basis for denying bail not covered by s. 515(10) (a) and (b). Although the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available because public confidence is essential to the proper functioning of the bail system and the justice system as a whole.
Denial of bail “to maintain confidence in the administration of justice” having regard to the factors set out in s. 515(10) (c) complies with s. 11 (e) of the Charter . This ground is narrower and more precise than the old public interest ground which was struck down as vague in 1992 and provides an intelligible standard for debate and for the exercise of discretion. The means chosen do not go further than necessary to achieve Parliament’s purpose of maintaining public confidence in the bail system and the justice system as whole. Parliament has hedged the provision with important safeguards: a judge can only deny bail if satisfied that, in view of the four specified factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. The provision is not overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community.
The appropriate remedy in this case is to sever the phrase “on any other just cause being shown, and without limiting the generality of the foregoing,”. The balance of s. 515(10) (c) can stand alone as a functioning whole without doing damage to Parliament’s intention.
The bail judge in this case considered the relevant factors and held that it was necessary to deny bail in order to maintain public confidence in the justice system. There is no error in his reasoning.
Per Iacobucci, Major, Arbour and LeBel JJ. (dissenting): At the heart of a free and democratic society is the liberty of its subjects and our justice system must minimize unwarranted denials of liberty. In the criminal law context, this freedom is embodied generally in the right to be presumed innocent until proven guilty and specifically in the right to bail. Under s. 11(e) of the Charter , “[a]ny person charged with an offence has the right . . . not to be denied reasonable bail without just cause”. The reference to “just cause” requires that bail is to be denied only in a narrow set of circumstances and where necessary to promote the proper functioning of the bail system. It cannot be denied for a purpose extraneous to the bail system. Section 515(10) (c) must thus be scrutinized in light of these constitutional requirements.
Fear that a bail judge will be unable to protect the public without s. 515(10) (c) is without reasonable foundation. There is no evidence that the bail system was lacking in any way before the introduction of the provision in 1997, five years after the “public interest” ground for denying bail had been struck down as unconstitutionally vague. The Crown could not raise even a convincing hypothetical scenario that would require pre‑trial detention for reasons not contemplated by s. 515(10) (a) or (b). The wording of s. 515(10) (b) is broad enough to encompass threats to “the protection or safety of the public” other than from an accused and including public unrest and vigilantism.
Section 515(10) (c) must be assessed as a whole. Its structure belies piecemeal analysis. To ignore the words at the heart of the provision and to focus only on the single listed example disregards the required analysis. For the purposes of argument, however, the two components of s. 515(10) (c) are assessed separately. Even if these components are considered independently, neither can withstand constitutional scrutiny.
It is impossible to hold that the phrase “any other just cause” provides for the denial of bail under a narrow set of circumstances. The phrase is deliberately open-ended and is more vague than the old “public interest” ground for denying bail because it fails to specify even a particular basis upon which bail may be denied. This open‑ended judicial discretion to deny bail does not promote the proper functioning of the bail system. The broader the terms under which bail may be denied, the more the presumption of innocence — the raison d’être of the bail system — is compromised.
Nor does the “confidence in the administration of justice” component of s. 515(10) (c) provide a sufficiently precise standard. The specific factors listed in s. 515(10) (c) provide little more than a facade of precision. Whether the phrase “maintain confidence in the administration of justice” has been given a workable standard by courts and/or Parliament in other contexts, in the context of s. 515(10) (c) it is impermissibly vague because of the failure to establish a plausible and valid ground for denying bail that would serve the proper administration of the bail system and that is not already covered under the more specific grounds in s. 515(10) (a) and (b). Without such an independent ground, the listed factors, by themselves, point to a denial of bail on the mere two‑fold basis of a serious crime and a strong prima facie case; however, it does not promote the proper functioning of the bail system to detain an accused on this basis alone, when the accused is not a flight risk and does not pose a threat to public safety. Section 515(10) (c) essentially revives the old “public interest” ground and invokes similarly vague notions of the public image of the criminal justice system. It is ripe for misuse and allows irrational public fears to be elevated above an accused’s Charter rights. In this case, the bail judge erred in considering the subjective fears of the public after determining there was no risk of flight nor any threat to the public. The reaction of the public may assist in determining the threat posed by the accused’s released under the public safety ground, but that is not what was decided in this case. The problem with s. 515(10) (c) is that it allows the subjective fears of the public and ill‑informed emotional impulses extraneous to the bail system to form a sole basis for denying bail.
Section 515(10)(c) cannot be saved under s. 1 of the Charter . First, the respondent did not identify a pressing and substantial objective furthered by the provision. Section 515(10) (c) is difficult to justify as “pressing and substantial”, especially given the respondent’s failure to identify particular circumstances where s. 515(10) (c) would validly operate. In enacting s. 515(10) (c), Parliament did not appear motivated by evidence of deficiencies in the bail system. No provision similar to s. 515(10) (c) exists in comparable legal systems. Second, s. 515(10)(c) fails the proportionality stage of the Oakes test. It authorizes detention for reasons not in furtherance of, and with no rational connection to, the proper functioning of the bail system. The broad discretion granted in s. 515(10) (c) cannot be viewed as minimally impairing the accused’s s. 11 (e) right and permits detentions in a much broader array of circumstances than necessary. There is no proportionality between the deleterious and the salutary effects of s. 515(10) (c). Pre‑trial detention has concrete and profound deleterious effects on the accused that outweigh any potential salutary effects that might exist.
The only available remedy is to strike down s. 515(10)(c) in its entirety. Although the section may encompass instances where bail could be denied without offending s. 11(e), this Court cannot sufficiently narrow the scope of that section without seriously intruding into the legislative sphere. In this regard, even if the administration of justice portion of the provision were constitutional, s. 515(10)(c) could not be read down to include only this portion. The second component of s. 515(10)(c) is but an example of denying bail “on any other just cause”. To convert a single example of an explicitly open‑ended rule into the rule itself substantially changes the significance of the provision and contravenes Parliament’s clear intention not to limit the generality of “any other just cause”.
Cases Cited
By McLachlin C.J.
Applied: R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Oakes, [1986] 1 S.C.R. 103; referred to: R. v. Gottfriedson (1906), 10 C.C.C. 239; Re N. (1945), 87 C.C.C. 377; R. v. MacDougal (1999), 138 C.C.C. (3d) 38; R. v. Dakin, [1989] O.J. No. 1348 (QL); R. v. Rondeau (1996), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Smith, [2001] A.J. No. 501 (QL), 2001 ABPC 76; R. v. Coles, [1999] B.C.J. No. 3107 (QL); R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Nguyen (1997), 119 C.C.C. (3d) 269; Schachter v. Canada, [1992] 2 S.C.R. 679.
By Iacobucci J. (dissenting)
R. v. Rose (1898), 18 Cox C.C. 717; R. v. Phillips (1947), 32 Cr. App. R. 47; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Rondeau (1996), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155; R. v. MacDougal (1999), 138 C.C.C. (3d) 38; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Re Powers and The Queen (1972), 9 C.C.C. (2d) 533; R. v. Dakin, [1989] O.J. No. 1348 (QL); R. v. Nguyen (1997), 119 C.C.C. (3d) 269; R. v. Oakes, [1986] 1 S.C.R. 103; S v. Dlamini, 1999 (4) SA 623; R. v. Rezaie (1996), 112 C.C.C. (3d) 97; Schachter v. Canada, [1992] 2 S.C.R. 679; Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Mills, [1999] 3 S.C.R. 668.
Statutes and Regulations Cited
Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30.
Bail Reform Act, S.C. 1970-71-72, c. 37, s. 5.
Canadian Charter of Rights and Freedoms, ss. 1 , 11 (e).
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1970, c. C-34, s. 457(7)(a), (b).
Criminal Code, R.S.C. 1985, c. C-46, ss. 486(1) , 515(10) [am. 1997, c. 18, s. 59], 522.
Criminal Code, S.C. 1953-54, c. 51, s. 463(1) [am. 1960-61, c. 43, s. 16], (3).
Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 59.
Authors Cited
Canada. Canadian Committee on Corrections. Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969.
Canada. National Council of Welfare. Justice and the Poor: A National Council of Welfare Publication. Ottawa: The Council, 2000.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 60, 2nd Sess., 35th Parl., April 21, 1997, p. 60:30.
Friedland, Martin L. Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts. Toronto: University of Toronto Press, 1965.
Ontario. Commission on Systemic Racism in the Ontario Criminal Justice System. Report of the Commission on Systemic Racism in the Ontario Criminal Justice System. Toronto: The Commission, 1995.
Packer, Herbert L. The Limits of the Criminal Sanction. Stanford: Stanford University Press, 1968.
Stuart, Don. “Hall: The Ontario Court of Appeal Ducks Broader Issues in Upholding the New Public Interest Bail Provision” (2000), 35 C.R. (5th) 219.
Trotter, Gary T. The Law of Bail in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1999.
APPEAL from a judgment of the Ontario Court of Appeal (2000), 136 O.A.C. 20, 147 C.C.C. (3d) 279, 35 C.R. (5th) 201, 77 C.R.R. (2d) 1, 50 O.R. (3d) 257, [2000] O.J. No. 3188 (QL), affirming a judgment of the Superior Court of Justice, [1999] O.J. No. 4565 (QL), dismissing the accused’s application for habeas corpus and relief and upholding the constitutionality of s. 515(10) (c) of the Criminal Code . Appeal dismissed, Iacobucci, Major, Arbour and LeBel JJ. dissenting.
John Norris, for the appellant.
Eric H. Siebenmorgen, for the respondent.
Peter DeFreitas and Robert W. Hubbard, for the intervener the Attorney General of Canada.
Jacques Blais and Juli Drolet, for the intervener the Attorney General of Quebec.
Louis P. Strezos, for the intervener the Criminal Lawyers’ Association (Ontario).
Christian Desrosiers and Martin Vauclair, for the intervener the Association des avocats de la défense de Montréal.
The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Bastarache and Binnie JJ. was delivered by
The Chief Justice—
I. Introduction
1 On May 3, 1999, Peggy Jo Barkley-Dube’s body was found on the kitchen floor of her home in the city of Sault Ste. Marie. The cause of death was massive hemorrhage from approximately 37 separate slash wounds to her hands, forearms, shoulder, neck and face. Her neck had been cut to the vertebrae and medical evidence indicated that the assailant intended to cut her head off.
2 On June 4, 1999, the appellant, the victim’s husband’s second cousin, was charged with first degree murder. Compelling evidence linked him to the crime. Areas in the victim’s home contained traces of the appellant’s blood. Footprint impressions containing the victim’s blood and matching the type of running shoes worn by the appellant were found in her dining room and kitchen. The same footprint impressions had been left by the appellant in his parents’ home. A surveillance video from a convenience store showed the appellant on the night of the homicide wearing shoes matching those seized from his parents’ home. The appellant admitted to police that he had been in the convenience store that night but denied that he had been wearing the shoes.
3 The murder received much media attention and caused significant public concern. A police officer testified that there was a general sense of fear that there was a killer at large, and the victim’s father testified that his wife and three other daughters were very fearful.
4 The appellant applied for bail. The Criminal Code, R.S.C. 1985, c. C-46, s. 515(10) provides that bail may be denied in three situations:
(a) where the detention is necessary to ensure [the accused’s] attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public . . . including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment. [Emphasis added.]
5 Bolan J. held that the evidence did not support denying bail on the first two grounds. He was satisfied that the accused’s community and family ties, plus the ample security proposed, would ensure that the accused would appear for his trial should he be released on bail. He was also satisfied that there was no reason to think the accused would commit an offence while on release and that bail conditions could be imposed which would eliminate this risk. He found, however, that the accused’s detention was necessary to maintain confidence in the administration of justice in view of the highly charged aftermath of the murder, the strong evidence implicating the accused, and the other factors referred to in s. 515(10) (c).
6 Fear prevailed in the community. As Bolan J. put it:
This City, like any other small cities, looks to its courts for protection. The feelings of the community have been expressed by certain witnesses. Some people are afraid, and some people have voiced their concerns. This is a factor which I will accordingly take into consideration when I assess the third ground.
7 Moreover, the offence was grievous:
There is no higher or worse crime in this country than first degree murder. It is the pinnacle of evil in our society. It is so evil that a conviction carries a life sentence with no parole eligibility for 25 years, subject to judicial review after 15 years. Insofar as the circumstances of the case are concerned, they can only be described as horrific.
8 Finally, the Crown’s case was strong. Bolan J. stated:
This . . . forensic evidence makes the Crown’s case very compelling. We have the evidence of an expert, someone who made a scientific study, who says that the print in the victim’s blood came from a pair of shoes owned by the accused and found in the accused’s father’s residence. Putting it another way, the shoe fits the print.
9 Taking all these factors into account, Bolan J. concluded:
I am satisfied that the accused has showed good cause for release under grounds one and two, however, under the third ground his detention is necessary in order to maintain confidence in the administration of justice.
10 The denial of bail was upheld on superior court review (Caputo J.) and in the Ontario Court of Appeal (per Osborne A.C.J.). Both courts upheld s. 515(10) (c) as constitutional and supported Bolan J.’s order. The appellant was convicted and was sentenced for second degree murder on November 10, 2000. However, the issue raised by his bail application continues to be important, if not for him, for others charged with offences and for the Canadian public.
11 The issue in this case is whether Bolan J. erred in denying bail on the basis that this was necessary “to maintain confidence in the administration of justice”. The appellant argues that the provision of the Criminal Code on which the order was based is unconstitutional on the ground that it violates the presumption of innocence and the right not to be denied reasonable bail except for “just cause” guaranteed by the Canadian Charter of Rights and Freedoms . Emphasizing the opening reference to “other just cause”, the appellant asserts that the third ground is unnecessary and represents an attempt to revive the old public interest ground for denying bail which was held unconstitutional on the ground that it constituted a “standardless sweep”: R. v. Pearson, [1992] 3 S.C.R. 665, and R. v. Morales, [1992] 3 S.C.R. 711.
12 Any bail provision that confers an open-ended judicial discretion to refuse bail is unconstitutional, and it is a fundamental principle of justice that an individual cannot be detained by virtue of a vague legal provision. For these reasons, I agree that the opening phrase of s. 515(10) (c), read as conferring a broad discretion to deny bail for “just cause”, is unconstitutional. However, the balance of s. 515(10) (c), which permits denial of bail where necessary to maintain confidence in the administration of justice, plays a vital role in preserving the bail system and the good administration of justice, and is neither unduly vague nor overbroad.
II. Analysis
1. Legislative Background
13 Section 11 (e) of the Charter provides that “[a]ny person charged with an offence has the right . . . not to be denied reasonable bail without just cause”. The right conferred is “a basic entitlement to be granted reasonable bail unless there is just cause to do otherwise”: Pearson, supra, at p. 691. This entitlement rests on the presumption that an accused person is innocent until found guilty at trial. However, s. 11(e) also recognizes that, notwithstanding the presumption of innocence,“just cause” may exist for denying liberty to an accused person pending trial.
14 What is “just cause” for denying bail? To understand this, we must go back to the history of bail in Canada. In 1869, the Federal Government enacted legislation making bail discretionary for all offences: see An Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30. Bail was therefore left to the discretion of the judge. Although the primary determinant for denying bail was the need to compel the accused’s attendance, courts also considered other factors such as the nature of the offence, the severity of the penalty, the evidence against the accused, and the character of the accused: see, for example, R. v. Gottfriedson (1906), 10 C.C.C. 239 (B.C. Co. Ct.); Re N. (1945), 87 C.C.C. 377 (P.E.I.S.C.).
15 In 1972 the law of bail was recodified: Bail Reform Act, S.C. 1970-71-72 , c. 37. The Act identified two branches for refusing bail: (1) where the accused’s detention was necessary to ensure his attendance in Court; or (2) where detention was “necessary in the public interest or for the protection or safety of the public” against the accused re-offending or interfering with the administration of justice. The use of “or” in the second branch led to the view that there were in effect three grounds for denying bail: (1) ensuring appearance at trial; (2) protection against criminal offences pending trial; and (3) the “public interest”. These grounds were originally enacted as s. 457(7) (a) and (b) of the Criminal Code , and later became s. 515(10) (a) and (b).
16 In 1992, this Court first considered the application of s. 11 (e) of the Charter to the law of bail in the cases of Pearson and Morales, supra. In Pearson, Lamer C.J., for the majority, held that s. 11 (e) contained two distinct elements: (1) the right to “reasonable bail” in terms of quantum of any monetary component and other applicable restrictions; and (2) the right not to be denied bail without “just cause”. He interpreted the term “just cause” as meaning that bail could only be denied (1) in a narrow set of circumstances, where (2) denial was necessary to promote the proper functioning of the bail system.
17 In Morales, supra, the Court considered the constitutionality of the reverse onus provisions in s. 515(6)(a) and (d), narcotics provisions of the Criminal Code , as well as the validity of s. 515(10) (b). The Court unanimously upheld the reverse onus provisions, as well as the portion of s. 515(10) (b) related to an accused further offending while on bail. However, the majority struck down the portion of s. 515(10) (b) that authorized pre-trial detention if it was in the “public interest”, on the ground that it was vague, imprecise, and authorized a “standardless sweep” that would permit a “court [to] order imprisonment whenever it sees fit” (p. 732).
18 Five years after the “public interest” provision for denying bail was struck down, Parliament replaced it with s. 515(10) (c) which, after citing that bail could be denied “on any other just cause being shown”, permits a judge to deny bail where this is necessary to maintain confidence in the justice system, having regard to all the circumstances of the case, and in particular to four criteria. Parliament took to heart the Court’s criticism in Morales that the “public interest” ground was too vague and wanted to replace it with a provision giving more specific guidance. The record states:
As a result of representations made by a number of jurisdictions, we have attempted to substitute the public interest heading with a more precise set of criteria which would permit a judge to consider detention on more specific criteria. We think that we have accomplished that task and that judges will be able to make informed decisions. What we are proposing is neither too vague nor too imprecise. [Emphasis added.]
(F. Bobiasz, testifying for the Department of Justice before the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 60, 2nd Sess., 35th Parl., April 21, 1997, at p. 60:30)
2. The Scope of the Analysis
19 Before considering the arguments, it is necessary to determine whether the constitutionality of the entirety of s. 515(10) (c) should be determined, or whether the analysis can be confined to the portion of para. (c) dealing with denial of bail to maintain confidence in the administration of justice. The Court of Appeal took the view that the bail judge proceeded under the latter portion, making it unnecessary to decide whether the broad opening phrase “on any other just cause being shown” was unconstitutional.
20 Read grammatically in its ordinary sense, s. 515(10) (c) suggests that Parliament intended two things. First, to grant a broad discretion to deny bail for “any other just cause”. Second, to single out a particular case in which Parliament felt denial of bail might be appropriate — where detention is necessary to maintain confidence in the administration of justice.
21 In my view, we should not decide the constitutionality of the second part of para. (c) and leave the first unconsidered. First, although Bolan J. focused on maintaining confidence in the administration of justice, he arguably based his decision on the whole of s. 515(10) (c). Second, it is difficult to see how the first part could constitutionally stand if severed from the remainder, since on its face it would constitute the open-ended discretion and standardless sweep ruled unconstitutional in Pearson and Morales, supra. There is therefore no reason to separate the two portions and leave the opening phrase for another day. Finally, appeals on this provision are rare given the transitory nature of bail and the constitutional questions place the ambit of the entire provision before us; these factors suggest that we should consider the constitutionality of s. 515(10) (c) as a whole. I therefore propose to consider the constitutionality of s. 515(10) (c) as a whole.
3. Constitutionality of Bail Denial for “Any Other Just Cause”
22 The first phrase of s. 515(10) (c) which permits denial of bail “on any other just cause being shown” is unconstitutional. Parliament cannot confer a broad discretion on judges to deny bail, but must lay out narrow and precise circumstances in which bail can be denied: Pearson and Morales, supra. This phrase does not specify any particular basis upon which bail could be denied. The denial of bail “on any other just cause” violates the requirements enunciated in Morales, supra, and therefore is inconsistent with the presumption of innocence and s. 11 (e) of the Charter . Even assuming a pressing and substantial legislative objective for the phrase “on any other just cause being shown”, the generality of the phrase impels its failure on the proportionality branch of the Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103). Section 52 of the Constitution Act,1982 , provides that a law is void to the extent it is inconsistent with the Charter . It follows that this phrase fails. The next phrase in the provision, “without limiting the generality of the foregoing”, is also void, since it serves only to confirm the generality of the phrase permitting a judge to deny bail “on any other just cause”.
23 However, this does not mean that all of s. 515(10) (c) is unconstitutional. The loss of the above phrases leaves intact the balance of s. 515(10) (c), which is capable of standing alone grammatically and in terms of Parliament’s intention. Whatever the fate of the broad initial discretion para. (c) seems to convey, Parliament clearly intended to permit bail to be denied where necessary to maintain confidence in the administration of justice, having regard to the four specified factors. This leaves the question of whether this latter part of s. 515(10) (c), considered on its own, is unconstitutional.
4. Constitutionality of the Provision for Denying Bail Where Necessary to Maintain Confidence in the Administration of Justice
(a) The Function of this Provision
24 Underlying much of the accused’s argument is the suggestion that the first two grounds for denying bail suffice and that a third ground serves only to permit the denial of bail for vague and unspecified reasons. Accepting this argument, Iacobucci J. concludes, at para. 86, that “the fear that a situation may arise where the bail judge is unable to provide for the protection of the public without relying on the residual ground is without reasonable foundation”.
25 Yet it seems to me that the facts of this case, as well as the facts in such cases as R. v. MacDougal (1999), 138 C.C.C. (3d) 38 (B.C.C.A.), and the pre-Morales case of R. v. Dakin, [1989] O.J. No. 1348 (QL) (C.A.), offer convincing proof that in some circumstances it may be necessary to the proper functioning of the bail system and, more broadly of the justice system, to deny bail even where there is no risk the accused will not attend trial or may re-offend or interfere with the administration of justice. Bolan J., on strong and cogent evidence, concluded that bail could not be denied on either of these grounds. But he also found that detention was necessary to maintain confidence in the administration of justice. The crime was heinous and unexplained. The evidence tying the accused to the crime was very strong. People in the community were afraid. As Proulx J.A., speaking of a similarly inexplicable and brutal murder stated in R. v. Rondeau (1996), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155 (C.A.), at p. 480 C.C.C., [translation] “[t]he more a crime like the present one is unexplained and unexplainable, the more worrisome bail becomes for society”. The provision at issue serves an important purpose — to maintain confidence in the administration of justice in circumstances such as these.
26 Therefore, Parliament provided for denial of bail where paras. (a) and (b) of s. 515(10) are not met but the judge, viewing the situation objectively through the lens of the four factors stipulated by Parliament, has decided that there is “just cause” for refusing bail. To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the public’s confidence in the administration of justice. Where justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter. When the public’s confidence has reasonably been called into question, dangers such as public unrest and vigilantism may emerge.
27 Public confidence is essential to the proper functioning of the bail system and the justice system as a whole: see Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689. Indeed, public confidence and the integrity of the rule of law are inextricably intertwined. As Hall J.A. stated in MacDougal, supra, at p. 48:
To sustain the rule of law, a core value of our society, it is necessary to maintain public respect for the law and the courts. A law that is not broadly acceptable to most members of society will usually fall into desuetude: witness the unhappy prohibition experiment in the United States. Courts must be careful not to pander to public opinion or to take account of only the overly excitable, but I believe that to fail to have regard to the provisions of s. 515(10) (c) in the relatively rare cases where it can properly be invoked would tend to work against maintaining broad public confidence in the way justice is administered in this country. [Emphasis added.]
28 My colleague Iacobucci J. acknowledges these arguments, but dismisses them for two reasons. First, he suggests at para. 83 that s. 515(10) (b) — the second ground — “is broad enough to encompass any type of threat to ‘the protection or safety of the public’”. Although the initial part of para. (b) speaks generally of “detention . . . necessary for the protection or safety of the public”, the remainder of the paragraph and the jurisprudence on the second ground see it as directed to whether the accused is likely to commit crimes while on bail or is otherwise likely to interfere with the proper administration of justice: see for example Morales, supra; Rondeau, supra; R. v. Smith, [2001] A.J. No. 501 (QL), 2001 ABPC 76, and R. v. Coles, [1999] B.C.J. No. 3107 (QL) (Prov. Ct.). To extend the second ground to general public protection is in effect to concede the ground the Crown contends for, but without the qualifying language and factors Parliament has set out in s. 515(10) (c). Second, my colleague states at para. 85 that “[e]ven if it were possible to imagine rare and isolated situations where it would be justifiable to deny bail for reasons other than those set out in paras. (a) and (b), we are not here dealing with such narrow specific grounds, but instead with a broad, open-ended provision”. With respect, it seems to me that we are indeed dealing with such narrow and specific grounds — the narrow facts of this appeal and the specific words of para. (c) that permit bail to be denied where denial is necessary to maintain confidence in the administration of justice having regard to the four factors specified by Parliament.
29 The appellant argues that this Court in Morales and Pearson emphasized the first two grounds for bail denial, suggesting that other grounds must be seen as suspect. However, Morales, supra, made clear that the grounds for bail denial are not frozen. Indeed, such a suggestion runs counter to common sense and law. Parliament may make any law for bail denial it wishes, provided the law meets the constitutional requirements of the Charter .
30 Bail denial to maintain confidence in the administration of justice is not a mere “catch-all” for cases where the first two grounds 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. For example, an accused’s implication in a terrorist ring or organized drug trafficking might be relevant to whether he is likely to appear at trial, whether he is likely to commit further offences or interfere with the administration of justice, and whether his detention is necessary to maintain confidence in the justice system. But that does not negate the distinctiveness of the three grounds.
31 I conclude that a provision that allows bail to be denied on the basis that the accused’s detention is required to maintain confidence in the administration of justice is neither superfluous nor unjustified. It serves a very real need to permit a bail judge to detain an accused pending trial for the purpose of maintaining the public’s confidence if the circumstances of the case so warrant. Without public confidence, the bail system and the justice system generally stand compromised. While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available.
(b) Is the Ground for Denying Bail Unconstitutionally Vague or Overbroad?
32 This brings us to the main issue — whet