R. v. Myers

R. v. Myers
Collection
Supreme Court Judgments
Date
2019-03-28
Neutral citation
2019 SCC 18
Report
[2019] 2 SCR 105
Case number
37869
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
British Columbia
Subjects
Criminal law
Notes
Case in brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105
Appeal Heard: October 18, 2018 Judgment Rendered: March 28, 2019 Docket: 37869
Between:
Corey Lee James Myers
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario and Canadian Civil Liberties Association
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 68)
Wagner C.J. (Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. concurring)
R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105
Corey Lee James Myers Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario and
Canadian Civil Liberties Association Interveners
Indexed as: R. v. Myers
2019 SCC 18
File No.: 37869.
2018: October 18; 2019: March 28.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the supreme court of british columbia
Criminal law — Interim release — Detention review — Accused denied interim release pending trial — Detention status confirmed by judge conducting review under s. 525 of Criminal Code — Proper approach to detention review hearing under s. 525 of Criminal Code — Criminal Code, R.S.C. 1985, c. C‑46, s. 525 .
On January 4, 2016, M was arrested and charged with several firearm offences. He sought bail for the first time in respect of these charges on November 9, 2016, but his application was dismissed, as the judge was not satisfied that any terms of release would adequately address the risk that M would, if released, commit other offences or interfere with the administration of justice. Later that month, M sought a review of his detention order under s. 520 of the Criminal Code , which was denied on the basis that the judge saw no significant change that would justify releasing M. In March 2017, Crown counsel asked the defence whether M wished to pursue a 90‑day bail review under s. 525 of the Criminal Code . Given the existence of competing lines of authority, the British Columbia Supreme Court heard submissions from both parties on the correct approach to the review under s. 525 . It concluded that the correct test at a s. 525 hearing involves a two‑step process: the accused must first convince the reviewing judge either that there has been an unreasonable delay in the proceedings on the Crown’s part or that the passage of time has had a material impact on the initial basis for detaining the accused, and, if either of these thresholds is met, the judge must then determine whether the detention of the accused remains justified within the meaning of s. 515(10) of the Criminal Code . Because of the formulation of the test, M made no submissions and his detention order was confirmed.
M pled guilty on January 29, 2018 to reduced charges and was sentenced to 30 months’ imprisonment. Since M is no longer in pre‑trial custody, his appeal to the Court is moot; however, as guidance is needed to establish the correct approach to a detention review hearing under s. 525 of the Criminal Code , the Court exercised its discretion to hear the appeal on the merits.
Held: The appeal should be allowed.
In this case, the Court must apply the principles of statutory interpretation to determine the correct approach to a detention review under s. 525 , and to explain the place of such a review within the larger context of pre‑trial custody in Canada. In Canadian law, the pre‑trial release of accused persons is the cardinal rule and detention, the exception. Yet practices vary widely in terms of when s. 525 detention review hearings happen, whether they are mandatory, what factors are considered and which test is applied.
The purpose of the s. 525 hearing is to prevent accused persons from languishing in pre‑trial custody and to ensure a prompt trial. Parliament sought to achieve this purpose by subjecting lengthy pre‑trial detentions to judicial oversight at set points in time, by affording an opportunity to have a judge consider whether the continued detention of an accused person is justified, and by conferring on the judge a discretion to expedite the trial of an individual in pre‑trial detention. The right not to be denied reasonable bail without just cause, which is enshrined in s. 11 (e) of the Canadian Charter of Rights and Freedoms , operates as a key organizing principle of Part XVI of the Criminal Code . Release is favoured at the earliest reasonable opportunity and on the least onerous grounds. The experience of pre‑trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence. It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well‑being and on their families, and the loss of their livelihoods. Parliament intended s. 525 to operate as a safeguard. This section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals in remand.
The correct approach to the s. 525 detention review is as follows. First, the jailer has an obligation to apply for the detention review hearing immediately upon the expiration of 90 days following the day on which the accused was initially taken before a justice under s. 503 of the Criminal Code . Where there is an intervening detention order under s. 520 , 521 or 524 of the Criminal Code following the initial appearance of the accused and before the end of the 90‑day period, the 90‑day period begins again. Accused persons who have not had a full bail hearing are also entitled to a review under s. 525 , since the fundamental purpose of s. 525 is to afford an opportunity to have a judge scrutinize the detention itself, and these individuals should not be denied that safeguard. Upon receiving the application from the jailer, the judge must fix a date and give notice for the hearing. The s. 525 hearing is an automatic procedure, and the mandatory obligations to make the application and to fix a date lie with the jailer and the judge respectively. Form letters that place the burden on the accused to pursue a s. 525 hearing are inconsistent with the law. The hearing must be held at the earliest opportunity. At the hearing, the reviewing judge may refer to the transcript, exhibits and reasons from any initial judicial interim release hearing and from any subsequent review hearings, and should show respect for any findings of fact made by the first‑level decision maker if there is no cause to interfere with them. Both parties are also entitled to make submissions on the basis of any additional credible or trustworthy information which is relevant or material to the judge’s analysis, and pre‑existing material is subject to the criteria of due diligence and relevance.
At the hearing, unreasonable delay is not a threshold that must be met before the detention of the accused is reviewed. Parliament did not intend to restrict the court’s ability to review the detention of an accused at a s. 525 hearing to situations in which there has already been an unreasonable delay. The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of s. 515(10) , which sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice. In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre‑trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not — justified. Finally, the judge should make use of his or her discretion under ss. 525(9) and 526 to give directions for expediting the trial and related proceedings where it is appropriate to do so. Directions should be given with a view to mitigating the risk of unconstitutional delay and expediting the trials of accused persons who are subject to lengthy pre‑trial detention.
Cases Cited
By Wagner C.J.
Referred to: R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509; R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250; R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. Gill, 2005 CanLII 22214; R. v. Kissoon, 2006 CanLII 40493; R. v. Jerace, 2012 BCSC 2007; R. v. Whiteside, 2016 BCSC 131; R. v. Elmi, 2016 BCSC 376; R. v. Russell, 2016 NLTD(G) 208, 34 C.R. (7th) 262; R. v. Cheeseman, 2017 NLTD(G) 114; R. v. Thorsteinson, 2006 MBQB 184, 206 Man. R. (2d) 188; R. v. Sawrenko, 2008 YKSC 27; R. v. Sarkozi, 2010 BCSC 1410; R. v. McCormack, 2014 ONSC 7123; R. v. Vandewater, 2014 BCSC 2502; R. v. Haleta, 2015 BCSC 850; R. v. Goudreau, 2015 BCSC 1227; R. v. Piazza, 2015 QCCS 707; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Bray (1983), 40 O.R. (2d) 766; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; Fraser Regional Correctional Centre v. Canada (Attorney General), 1993 CanLII 354; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Anoussis, 2008 QCCQ 8100, 242 C.C.C. (3d) 113; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857; R. v. Acera, 2017 ABQB 470; R. v. Saulnier, 2012 NSSC 45, 314 N.S.R. (2d) 203; R. v. Burgar, 2003 BCCA 426, 186 B.C.A.C. 15; R. v. White, 2010 ONSC 3164; R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305.
Statutes and Regulations Cited
Bail Reform Act, S.C. 1970‑71‑72, c. 37.
Canadian Charter of Rights and Freedoms, s. 11 (b), (e).
Criminal Code, R.S.C. 1985, c. C‑46 , Part XVI, ss. 94(1), 117.01(1), 503, 515, 517, 518, 519, 520, 521, 524, 525, 526, 679, 680.
Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 61(1).
Interpretation Act, R.S.C. 1985, c. I‑21, s. 11 .
Authors Cited
Canada. Canadian Committee on Corrections. Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969 [Ouimet Report].
Canada. House of Commons. House of Commons Debates, vol. III, 3rd Sess., 28th Parl., February 5, 1971, pp. 3115, 3116, 3117.
Canada. Statistics Canada. Canadian Centre for Justice Statistics. Adult and youth correctional statistics in Canada, 2016/2017, by Jamil Malakieh. Ottawa: Statistics Canada, June 2018.
Canada. Statistics Canada. Canadian Centre for Justice Statistics. Trends in the use of remand in Canada, 2004/2005 to 2014/2015, by Correctional Services Program. Ottawa: Statistics Canada, January 2017.
Canada. Statistics Canada. Table: 35‑10‑0024‑01 — Adult releases from correctional services by sex and aggregate time served (online: https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510002401; archived version: https://www.scc‑csc.ca/cso‑dce/2019SCC‑CSC18_1_eng.pdf).
Canadian Civil Liberties Association and Education Trust. Set Up to Fail: Bail and the Revolving Door of Pre‑trial Detention, by Abby Deshman and Nicole Myers, 2014 (online: https://ccla.org/dev/v5/_doc/CCLA_set_up_to_fail.pdf; archived version: https://www.scc‑csc.ca/cso‑dce/2019SCC‑CSC18_2_eng.pdf).
Friedland, Martin L. Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts. Toronto: University of Toronto Press, 1965.
Trotter, Gary T. The Law of Bail in Canada, 3rd ed. Toronto: Carswell, 2010 (loose‑leaf updated 2018, release 2).
APPEAL from a decision of the British Columbia Supreme Court (Riley J.), 2017 BCSC 1717, [2017] B.C.J. No. (QL), 2017 CarswellBC 2798 (WL Can.), confirming the accused’s detention status. Appeal allowed.
Justin Vladimir Myers, Lawrence D. Myers, Q.C., and Zack Myers, for the appellant.
John R. W. Caldwell and Nicholas Reithmeier, for the respondent.
Joan Barrett and Jessica Smith Joy, for the intervener the Attorney General of Ontario.
Christine Mainville, for the intervener the Canadian Civil Liberties Association.
The judgment of the Court was delivered by
The Chief Justice —
I. Overview
[1] The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.
[2] And yet there are a significant number of individuals in remand custody at any given time in Canada. In some cases, accused persons are detained in provincial jails for the entire length of the pre-trial process, which can amount to hundreds of days in custody. This appeal concerns those individuals, and their right to what has become known as the “90-day detention review” under s. 525 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”).
[3] This Court has addressed issues related to bail and detention on several occasions in recent years. In R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, it clarified the ladder principle in the law of bail and the framework for authorizing release under s. 515 Cr. C. In R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, the Court addressed the issues of release pending appeal under s. 679 Cr. C. and the review under s. 680 Cr. C. In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, it considered the test for detention under s. 515(10) (c) and bail review under ss. 520 and 521 Cr. C.
[4] In the case at bar, the Court is asked to determine the correct approach to a detention review under s. 525 Cr. C., and to explain the place of such a review within the larger context of pre-trial custody in Canada. For the reasons that follow, I find that Parliament intended s. 525 to operate as a safeguard. This section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals in remand. Given that Mr. Myers’ appeal is moot, I would simply allow the appeal and make no further order.
II. Background
A. Arrest and Prior Charges
[5] On January 4, 2016, Mr. Myers was arrested following a high-speed car chase involving gunfire in Surrey and Delta, British Columbia. He was charged with a number of offences, including intentionally discharging a restricted or prohibited firearm; occupying a motor vehicle knowing that there was a firearm in the vehicle; using a firearm in committing an indictable offence; possessing a restricted or prohibited firearm; and possessing a weapon and/or ammunition contrary to a lifetime firearms ban.
[6] Mr. Myers was already on bail for unrelated break and enter charges when he was arrested. He had various prior convictions, was on probation, and was under multiple court-ordered prohibitions against possessing firearms and ammunition. He was also the subject of a Canada-wide warrant for charges that had been laid in Alberta in 2015.
[7] At the time of his arrest, Mr. Myers consented to detention without a bail hearing. About 4 months later, he pled guilty to the outstanding break and enter charges and was sentenced to 14 months incarceration. His release date in relation to those offences would have been in October 2016, taking time served into account. As of October 2016, Mr. Myers was no longer detained on any matter other than the new charges related to his arrest on January 4.
B. Ruling on the Judicial Interim Release Application (Sudeyko Prov .Ct. J.)
[8] Mr. Myers sought bail for the first time in respect of those charges on November 9, 2016. He was in a reverse onus position at the bail hearing: s. 515(6) Cr. C. The judge considered the relative strength of the Crown’s case, Mr. Myers’ criminal record and, to a lesser extent, his other outstanding charges. The judge noted that Mr. Myers had a history of failing to follow court orders, and of then committing other offences. Defence counsel had submitted that Mr. Myers, who was only 26, had an opiate addiction and that it was the root cause of his criminal history. The defence proposed that Mr. Myers therefore be released into a residential drug treatment facility, and suggested cash bail, a daily reporting requirement, an ankle bracelet and electronic monitoring as additional conditions. However, the judge was not satisfied that any terms of release would adequately address the risk that Mr. Myers would, if released, commit other offences or interfere with the administration of justice. He therefore dismissed the application and ordered that Mr. Myers be detained on the basis of the ground set out in s. 515(10) (b).
C. Ruling on the Section 520 Detention Review (Sudeyko Prov. Ct. J.)
[9] At the preliminary inquiry on November 24, 2016, it was revealed that the Crown’s key witness was no longer willing to testify and that the Crown would need to seek admission of his police statement at trial instead. Counsel for Mr. Myers immediately sought a review of Mr. Myers’ detention under s. 520 on the basis of this new weakness in the Crown’s case. That review application was denied on the basis that the judge saw no significant change that would justify releasing Mr. Myers at that time.
D. Decision of the Supreme Court of British Columbia (Riley J.), 2017 BCSC 1717
[10] In a letter dated March 14, 2017, Crown counsel asked the defence whether Mr. Myers wished to pursue a bail review under s. 525 . In the resulting hearing on July 21 of that year, given the existence of competing lines of authority, Riley J. of the British Columbia Supreme Court heard submissions from both parties on the correct approach to take under s. 525 . His reasons for judgment were released on September 27, 2017.
[11] Riley J. concluded that the correct test at a s. 525 hearing involves a two-step process. He found that the accused must first convince the reviewing judge either that there has been an unreasonable delay in the proceedings on the Crown’s part or that the passage of time has had a material impact on the initial basis for detaining the accused. If either of these thresholds is met, the judge must then determine whether the detention of the accused remains justified within the meaning of s. 515(10) .
[12] The review proceeded on October 5, 2017. Because of the formulation of the test, Mr. Myers made no submissions and his detention order was confirmed.
E. Mootness
[13] Mr. Myers filed his application for leave to appeal while he was still in pre-trial custody. However, he pled guilty on January 29, 2018 to one count of occupying a motor vehicle knowing there was a firearm in it under s. 94(1) Cr. C., and one count of possessing ammunition contrary to a prohibition under s. 117.01(1) Cr. C. The Crown entered a stay of proceedings on all the remaining counts on the indictment, and Mr. Myers was sentenced to 30 months’ imprisonment. As he is no longer in pre-trial custody, the appeal is moot.
[14] This Court recognized in Oland that bail-related matters are inherently “evasive of appellate review” owing to their temporary nature: para. 17. Despite the fact that pre-trial detention is governed by federal law, there has been a widespread, and systemic, divergence in the approaches taken to 90-day detention reviews by courts across Canada. All the parties have made submissions to the effect that guidance from this Court is needed in order to determine which of these competing approaches should apply and to establish clarity in the law. The Court has therefore exercised its discretion to hear the appeal on the merits: see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at pp. 358-63.
III. Issue
[15] This appeal raises a single question: What is the correct approach to a detention review hearing under s. 525 Cr. C.?
IV. Analysis
A. Two Competing Approaches to Section 525
[16] The parties suggest that the choice before this Court is between two competing approaches to s. 525 hearings. According to the first approach, unreasonable delay in getting the case to trial is a threshold condition. In the absence of an unreasonable delay, the judge at a s. 525 hearing cannot ask whether the detention remains necessary on the basis of the grounds set out in s. 515(10) : see, e.g., R. v. Gill, 2005 CanLII 22214 (Ont. S.C.J.); R. v. Kissoon, 2006 CanLII 40493 (Ont. S.C.J.); R. v. Jerace, 2012 BCSC 2007; R. v. Whiteside, 2016 BCSC 131; R. v. Elmi, 2016 BCSC 376; R. v. Russell, 2016 NLTD(G) 208, 34 C.R. (7th) 262; R. v. Cheeseman, 2017 NLTD(G) 114.
[17] Under the alternative approach, unreasonable delay is not a threshold condition. Instead, the judge at a s. 525 hearing simply considers whether the continued detention of the accused is necessary on the basis of s. 515(10) , and unreasonable delay is one possible factor in that analysis: see, e.g., R. v. Thorsteinson, 2006 MBQB 184, 206 Man. R. (2d) 188; R. v. Sawrenko, 2008 YKSC 27; R. v. Sarkozi, 2010 BCSC 1410; R. v. McCormack, 2014 ONSC 7123; R. v. Vandewater, 2014 BCSC 2502; R. v. Haleta, 2015 BCSC 850; R. v. Goudreau, 2015 BCSC 1227; R. v. Piazza, 2015 QCCS 707.
[18] Whether or not unreasonable delay operates as a threshold condition is clearly of fundamental importance to this appeal. However, this case requires the Court to do more than simply choose one approach or the other. Like Antic, it concerns a provision of federal law that has been applied inconsistently across the country: paras. 6 and 65-66. Practices vary widely from place to place in terms of when s. 525 hearings happen, whether they are mandatory, what factors are considered and which test is applied. It is up to this Court to apply the principles of statutory interpretation in order to resolve this issue.
[19] The modern approach to statutory interpretation requires the Court to read the words of s. 525, ‛‟in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”’: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. When Parliament adopted s. 525, its purpose was clear and unambiguous. A straightforward reading of the provision, viewed properly in its legislative context, is the one which best supports that purpose.
[20] For reference purposes, s. 525 is reproduced in its entirety in the attached Appendix together with ss. 515(10) and 526 . While I will generally be referring to the “90-day” review, these reasons apply with equal force, and with any necessary modifications, to the “30-day review”, that is, they apply regardless of whether the accused is being prosecuted in proceedings by way of indictment or by way of summary conviction: s. 525(1).
B. Parliament’s Intent and the Bail Reform Act
[21] Section 525 Cr. C. was first introduced in the 1972 Bail Reform Act, S.C. 1970-71-72, c. 37. In a speech at second reading in the House of Commons, then Justice Minister John N. Turner summarized the purposes of the Act as follows:
The objectives of this bill are fourfold: First, to avoid unnecessary pre-trial arrest and detention; second, to ensure that in cases where arrest with or without warrant has taken place, the person accused, whatever his means, is not unnecessarily held in custody until his trial; third, to ensure an early trial for those who have been detained in custody pending trial; fourth, to provide statutory guidelines for decision making in this part of the criminal law process relating to arrest and bail and thereby preclude the possibility of “discretionary injustice”.
(House of Commons Debates, vol. III, 3rd Sess., 28th Parl., February 5, 1971, at p. 3116)
[22] This Court has recognized that Parliament’s overarching vision of the Bail Reform Act was the creation of ‘“a liberal and enlightened system of pre-trial release”’ in which accused individuals would normally be granted bail: R. v. Morales, [1992] 3 S.C.R. 711, at p. 725, quoting R. v. Bray (1983), 40 O.R. (2d) 766 (C.A.), at p. 769; Antic, at para. 29. The purpose of that Act, which was influenced by both the academic work of Professor Martin L. Friedland and the findings of the Ouimet Report, as delivered by the Canadian Committee on Corrections examining the law on bail, was to reform a system that many experts saw as punitive, arbitrary, and inconsistent with the presumption of innocence: M. L. Friedland, Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (1965); Canadian Committee on Corrections, Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections (1969). There was also particular concern regarding the relationship between prolonged pre-trial detentions and induced guilty pleas. In Minister Turner’s words:
. . . there is an indication that those who are held under pre-trial detention will have, on the basis of statistics, a lesser opportunity for an acquittal and, certainly, they will have less of an opportunity to present a reasonable defence and assemble the evidence necessary for that defence. I think that we cannot ignore, either, Mr. Speaker, the high incidence of guilty pleas by persons who are detained and kept in custody under pre-trial detention. [p. 3115]
[23] The third purpose of the Bail Reform Act as articulated by Minister Turner — to ensure an early trial for those who have been detained in custody — is of specific relevance to this appeal. It is a longstanding principle of our criminal justice system that individuals in pre-trial custody should be given a certain priority in scheduling trials. This general guiding premise has not been displaced by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Sections 525(9) and 526, which confer on the reviewing judge a discretion to give directions for expediting the trial of and any proceedings in relation to an accused, continue to operate as a reflection of that principle. In discussing these provisions, Minister Turner stated specifically:
[T]here are important new proposals in the bill which provide that where an accused does not achieve bail after an arrest, there are methods for expediting his trial . . . . The provisions of the bill also ensure that where an accused is being held in custody pending his trial, or pending an appeal of his conviction, the situation must be reviewed by the courts within set periods of time, and directions may be given by the courts for getting the case on to trial. . . . [p. 3117]
[24] Regardless of which test is applied, courts across Canada share an overarching consensus that the purpose of the s. 525 hearing is to prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial: see, e.g., Fraser Regional Correctional Centre v. Canada (Attorney General), 1993 CanLII 354 (B.C.S.C.), at pp. 2-3; Gill, at para. 3; Sawrenko, at para. 26 (CanLII); Sarkozi, at paras. 8-11 (CanLII); Haleta, at paras. 8-10. It is, moreover, clear that Parliament sought to achieve this purpose by subjecting lengthy pre-trial detentions to judicial oversight at set points in time, by affording an opportunity to have a judge consider whether the continued detention of an accused person is justified, and by conferring on the judge a discretion to expedite the trial of an individual in pre-trial detention.
C. Current Context of Pre-trial Detention in Canada
[25] Today, the right not to be denied reasonable bail without just cause, which is enshrined in s. 11 (e) of the Canadian Charter of Rights and Freedoms , operates as a key organizing principle of Part XVI of the Criminal Code : R. v. Pearson, [1992] 3 S.C.R. 665, at p. 691. This right has also been affirmed repeatedly by this Court, most recently in St-Cloud, in which the Court held that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception” (para. 70 (emphasis added)), and in Antic, in which it stated that ‘“release is favoured at the earliest reasonable opportunity and . . . on the least onerous grounds”’: para. 29, quoting R. v. Anoussis, 2008 QCCQ 8100, 242 C.C.C. (3d) 113, at para. 23.
[26] Nonetheless, on any given day in Canada, nearly half of the individuals in provincial jails are accused persons in pre-trial custody: Statistics Canada, Adult and youth correctional statistics in Canada, 2016/2017 (June 2018), at p. 7; Statistics Canada, Trends in the use of remand in Canada, 2004/2005 to 2014/2015 (January 2017). In 2016-2017, approximately 7 percent of those in remand were still in custody after 3 months, and some spent upwards of 12 or even 24 months awaiting trial in detention: Statistics Canada, Table 35-10-0024-01 — Adult releases from correctional services by sex and aggregate time served (online). It must be said that the conditions faced by such individuals are often dire. Overcrowding and lockdowns are frequent features of this environment, as is limited access to recreation, health care and basic programming: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 2 and 28; Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, by A. Deshman and N. Myers (2014) (online). Moreover, as is the case elsewhere in our criminal justice system, Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions: Statistics Canada, Trends in the use of remand in Canada, 2004/2005 to 2014/2015.
[27] As this Court has recognized, the experience of pre-trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence: see R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 59. It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods: Friedland, at p. 172; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 24; Antic, at para. 66. The high cost of pre-trial detention was recognized at the time the Bail Reform Act was before Parliament: House of Commons Debates, at p. 3115. The issue remains just as relevant today.
D. Correct Approach to the Section 525 Detention Review
[28] In the sections that follow, I will outline the correct approach to the s. 525 detention review, beginning with the application for the hearing. However, it is necessary to first dispose of the argument that a threshold condition of unreasonable delay must be met in order for the judge to review the detention itself.
(1) Unreasonable Delay Is Not a Threshold Requirement for Reviewing the Detention
[29] Parliament did not intend to restrict the court’s ability to review the detention of an accused at a s. 525 hearing to situations in which there has been an unreasonable delay. In this case, the Crown relies almost exclusively on the heading under which s. 525 appears (“Review of Detention where Trial Delayed”) to support an argument that Parliament did intend to do so. In the Crown’s view, although the passage of 90 days might have been synonymous with “unreasonable delay” in 1972, this is no longer the case. The Crown suggests that Parliament has simply failed to amend the legislation in order to reflect the modern life cycle of a trial, and that s. 525 hearings were only ever intended to be held in exceptional circumstances involving unreasonable delay.
[30] In line with this view, some courts have developed a test to the effect that unreasonable delay is a precondition to reviewing the detention of the accused at a s. 525 hearing: see, e.g., Jerace, at paras. 8-12 (CanLII). The Crown submits that the result of this interpretation of s. 525 is that the detention of the accused should rarely be scrutinized, because there will rarely have been an unreasonable delay when the 90-day mark is reached. The Attorney General of Ontario argues that the correct approach is one according to which the judge does not schedule a hearing at all unless he or she is satisfied that there has been an unreasonable delay.
[31] With respect, the view that the judge must consider unreasonable delay but that the operative word for reviewing the detention of the accused is only “may” represents precisely the opposite of what the provision says:
525 (1) . . . the person having the custody of the accused shall, forthwith on the expiration of those ninety or thirty days, as the case may be, apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody.
. . .
(3) On the hearing described in subsection (1), the judge may, in deciding whether or not the accused should be released from custody, take into consideration whether the prosecutor or the accused has been responsible for any unreasonable delay in the trial of the charge.
(4) If, following the hearing described in subsection (1), the judge is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10) , the judge shall order that the accused be released . . . .
[32] In short, it is perfectly clear from the section that at the hearing, the judge must consider whether the continued detention of the accused is justified, and may consider whether there has been an unreasonable delay: s. 525(1) and s. 525(3) Cr. C.; Interpretation Act, R.S.C. 1985, c. I-21, s. 11 . Notably, the heading itself refers only to the trial being “delayed”, and not to an “unreasonable delay”, which suggests that Parliament simply intended the word “delayed” to refer to situations in which “the trial has not commenced” before the prescribed time. As well, the use of the word “any” in s. 525(3) makes it clear that there may or may not have been an unreasonable delay before the s. 525 hearing. Simply put, it is an error of law to treat unreasonable delay as a precondition for a review of the continued detention of the accused.
[33] There is no principled basis for this Court to “read in” a more restrictive test. It does not frustrate Parliament’s purpose to take the provision at face value, nor does it result in absurdity, waste or redundancy to do so. As the intervener Canadian Civil Liberties Association reminds us, “[t]oday, as before, three months is a long time for a person who is presumed innocent to be held in jail awaiting trial”: I.F., at para. 1. The Crown argues that this timeline is no longer realistic given the increased length and complexity of modern criminal trials. But even if that were true, the appropriate solution would be for Parliament to modify these clearly expressed requirements, not for this Court to read in a threshold that was never intended and that the words of the provision do not support. Circumstances that favour the release of the accused, issues related to unreasonable delay, or the need for a court to intervene to expedite the trial will not always have arisen when the 90-day mark is reached. Instead, 90 days following the last detention order against the accused is simply the point at which Parliament has specified that a judge must determine whether the continued detention of the accused is justified. The impact of the passage of time generally (and of unreasonable delay specifically) may be properly considered in the judge’s analysis at that time.
(2) Jailer’s Obligation to Apply for a Hearing
[34] Subsection 525(1) makes it clear that the obligation to apply to a judge for a hearing lies with the person having the custody of the accused. In some provinces, this obligation is fulfilled by the prosecution rather than the correctional facility (“the jailer”) itself.
[35] In proceedings by way of summary conviction, the obligation to make an application is triggered at the 30-day mark: s. 525(1)(b) Cr. C. For indictable offences, as in Mr. Myers’ case, the relevant time is 90 days: s. 525(1)(a) Cr. C. The precise timing is made somewhat unclear by the use of the word “forthwith” in s. 525(1), which provides that the application must be made “forthwith on the expiration of those ninety . . . days”. The French version of the same passage connotes immediacy — “dès l’expiration de ces quatre-vingt-dix jours” — and indicates more clearly that the obligation to make the application arises as soon as the 90-day period has expired. I would therefore take the provision to mean that the application must be made immediately upon the expiration of 90 days following (i) the date on which the accused was taken before a justice under s. 503, or (ii) the later of the date on which the accused was taken into custody and the date of a detention order under s. 520, 521 or 524.
[36] I would pause to note that it has been suggested that an accused person could apply for a s. 520 review at some point before the end of the 90-day period only to have a s. 525 hearing held just weeks or days later, which would be wasteful or redundant: G. T. Trotter, The Law of Bail in Canada (3rd ed. (loose-leaf)), at pp. 8-51 to 8-55. While this may have been an issue before amendments made to s. 525 in 1997 introduced a reference to s. 520 into s. 525(1)(a)(ii), it is no longer of concern: Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 61(1). Section 525(1)(a)(ii) now indicates that the 90-day period is determined in relation to any order made pursuant to s. 521, 524 or 520.
[37] The rule is therefore as follows: the person having custody of the accused must ordinarily apply to the judge immediately upon the expiration of 90 days following the day on which the accused was initially taken before a justice under s. 503: s. 525(1)(a)(i) Cr. C. Where, however, a new detention order is made against the accused — or a decision is made to continue an existing order — under s. 520, 521 or 524 after the initial appearance of the accused under s. 503, the result of s. 525(1)(a)(ii) is that the 90-day period will effectively begin again. By way of example, if an accused person is taken before a justice under s. 503 and detained in custody on day 1, then applies to a judge for a review of that decision under s. 520 on day 50 and the detention is confirmed, the jailer’s obligation to make the application will not arise until 140 days following the day on which the accused person was first detained in custody. In addition to conforming to the words of s. 525(1), this interpretation minimizes the risk of redundancy, addresses any concerns related to the scarcity of judicial resources and limits the applicability of s. 525 to s