R. v. St-Cloud

R. v. St-Cloud
Collection
Supreme Court Judgments
Date
2015-05-15
Neutral citation
2015 SCC 27
Report
[2015] 2 SCR 328
Case number
35626
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Rothstein, Marshall; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Quebec
Subjects
Criminal law
Notes
A SCC Case Information: 35626
Decision Content
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.
In 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 the combined effect of all the circumstances of each case to determine whether detention is justified. This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. Thus, the court must not order detention automatically even where the four listed circumstances 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 on society 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 the Canadian Charter of Rights and Freedoms , and the actual circumstances of the case. The person in question is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society’s fundamental values. However, this person is not a legal expert, and, although he or she is aware of the importance of the presumption of innocence and the right to liberty in our society, expects that someone charged with a crime will be tried within a reasonable period of time, and knows that a criminal offence requires proof of culpable intent and that the purpose of certain defences is to show the absence of such intent, the person is not able to appreciate the subtleties of the various defences that 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.
Sections 520 and 521 of the Criminal Code do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. They establish not a de novo proceeding, but a hybrid remedy. The judge must determine whether it is appropriate to exercise his or her power of review. Exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case; (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, [1980] 1 S.C.R. 759, are relevant to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 . Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of 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 the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. Such new evidence is not limited to evidence that was unavailable to the accused before the initial hearing. In each case, the reviewing judge will have to determine whether the reason why the accused did not tender such pre-existing evidence earlier was legitimate and reasonable. As to the second criterion, it will suffice that the evidence be relevant for the purposes of s. 515(10) . This criterion will therefore rarely be decisive in the context of an application for review under ss. 520 and 521 , since the range of relevant evidence will generally be quite broad. The third criterion — that the evidence must be credible in the sense that it is reasonably capable of belief — must be interpreted in light of the 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 “the justice 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, having regard 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 is authorized 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 judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.
In this case, the Superior Court judge intervened even though there was no basis for a review, given that there was no change in circumstances and no error of law, and that the initial decision was not clearly inappropriate. When all the relevant circumstances are weighed as required by s. 515(10) (c), the detention of S was necessary to maintain confidence in the administration of justice.
Cases Cited
Considered: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; referred to: R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Morales, [1992] 3 S.C.R. 711; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Thomson (2004), 21 C.R. (6th) 209; R. v. B. (A.) (2006), 204 C.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, 2009 BCCA 431, 71 C.R. (6th) 81; R. v. LaFramboise (2005), 203 C.C.C. (3d) 492; R. v. D. (R.), 2010 ONCA 899, 273 C.C.C. (3d) 7; R. v. Blind (1999), 139 C.C.C. (3d) 87; R. v. Rondeau (1996), 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), 223 C.C.C. (3d) 407; R. v. Nguyen (1997), 119 C.C.C. (3d) 269; R. v. Lamothe (1990), 58 C.C.C. (3d) 530; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Trout, 2006 MBCA 96, 205 Man. R. (2d) 277; R. v. Turcotte, 2014 QCCA 2190; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; R. v. M. (S.H.), [1989] 2 S.C.R. 446; R. v. Oliver, 2008 NLCA 27, 287 Nfld. & P.E.I.R. 123; R. v. Massan, 2012 MBCA 26, 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), 144 C.C.C. (3d) 93; United States of America v. Pannell (2005), 193 C.C.C. (3d) 414; United States 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), 293 N.B.R. (2d) 80; United States of America v. Palmucci, 2001 CanLII 38680; 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, 2004 BCCA 162, 195 B.C.A.C. 245; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. McDonnell, [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), 94 C.C.C. (3d) 119; R. v. McKnight (1999), 135 C.C.C. (3d) 41; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Warsing, [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), 77 C.C.C. (3d) 402; McMartin v. The Queen, [1964] S.C.R. 484; R. v. Price, [1993] 3 S.C.R. 633; R. v. Burns, [1994] 1 S.C.R. 656; Harper v. The Queen, [1982] 1 S.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 Not To 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 detention order. 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 and the presumption of innocence are fundamental values of our society that require protection. However, that repute also depends on the confidence citizens have that persons charged with serious crimes will not be able to evade justice, harm others or interfere with the administration of justice while awaiting trial. The risk that one of these events might tarnish the repute of the justice system was recognized 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 the interim detention of an accused may be ordered where that is necessary to ensure the attendance of the accused in court or to guarantee the protection or safety of the public.
[2] Moreover, Parliament judged that there are circumstances in which releasing an accused person could undermine the 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, maintaining confidence in the administration of justice. Thus, Parliament recognized that there are circumstances in which allowing a person charged with a serious crime to be released into the community pending trial in the face of overwhelming evidence might suggest to the public that 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 ordered the 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 his release 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 presented at the time of the initial application, however, Judge Legault expressed the opinion that there were also some new facts, including a substantial increase in the financial security provided by the respondent’s family and the possibility of his obtaining regular employment at a garage.
[17] Judge Legault found on the basis of the new facts that the risk of reoffending was [translation] “reduced”. He also considered it “credible” that the respondent was seriously committed to working or studying: paras. 20-21. However, he noted that the victim’s medical condition had worsened.
[18] Judge Legault therefore accepted Judge Lavergne’s conclusion that the detention of the respondent was necessary to maintain confidence in the administration of justice, the ground provided for in s. 515(10) (c) Cr. C. He agreed with Judge Lavergne that there was [translation] “a reasonable collective expectation that interim release must be denied to maintain public confidence in the administration 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 the detention of the respondent was not necessary for the protection or safety of the public within the meaning of s. 515(10) (b) Cr. C. In Martin 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 his detention. Referring to Hall, he concluded that s. 515(10) (c) Cr. C. must be [translation] “used sparingly”: para. 22 (CanLII).
[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 of the Charter of Rights , the provisions of the Criminal Code and the principles laid down by the Supreme Court, conclude that confidence in the administration of justice would be undermined if the person in question were released? It is in fact the justice who must assess this on 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 out in 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 simply substituting 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 will be 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 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.).
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).
(Hall, at paras. 14-15)
[27] Since the enactment of the Canadian Charter of Rights and Freedoms (“Charter ”) in 1982, any person charged with an 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 basic entitlement to be granted reasonable bail unless there is just cause to do otherwise”: R. v. Pearson, [1992] 3 S.C.R. 665, at p. 691. Section 11 (e) has two distinct components: (1) the right to “reasonable bail” in terms of quantum of any monetary component 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, [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”. The Court held that this wording was vague and imprecise and that it authorized a “standardless sweep” allowing a “court [to] order imprisonment 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 Law Improvement Act, 1996, S.C. 1997, c. 18, s. 59(2). The detention of an accused could then be justified “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”. At the time, Parliament had not drawn up a list of circumstances the justice was required to consider in this analysis.
[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 the presumption of innocence and with s. 11 (e) of the Charter . The Court found that this wording conferred a broad discretion on justices to grant or deny bail in that it did not specify any particular basis upon which bail could be denied: Hall, at para. 22. However, the balance of 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 issue in this appeal:
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, 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 an offence 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 these reasons.
(2) Principles From Hall
[32] The central issue in Hall was the constitutionality of s. 515(10) (c) Cr. C. However, the Court provided some guidance 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 to deny an accused bail, even where there is no risk he or she will not attend trial or may reoffend or interfere with the administration of justice: Hall, at para. 25. According to the Chief Justice, “[w]here justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter”: para. 26. Yet, she wrote, “[p]ublic confidence is essential to the proper functioning of the bail system and the justice system as a whole”: para. 27, citing Valente v. The Queen, [1985] 2 S.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 characterized as “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 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. . . . 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 determine whether 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 denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public’s confidence in the administration of justice. Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10)(c) — 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 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 judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration 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 not overbroad. [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 added factors to s. 51