R. v. Pearson

R. v. Pearson
Collection
Supreme Court Judgments
Date
1992-11-19
Report
[1992] 3 SCR 665
Case number
22173
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Quebec
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 22173
Decision Content
R. v. Pearson, [1992] 3 S.C.R. 665
The Attorney General of Quebec Appellant
v.
Edwin Pearson Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General for Saskatchewan
and the Criminal Lawyers' Association Interveners
Indexed as: R. v. Pearson
File No.: 22173.
1992: May 28; 1992: November 19.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for quebec
Constitutional law ‑‑ Charter of Rights ‑‑ Remedy ‑‑ Habeas corpus ‑‑ Accused charged with trafficking in narcotics and denied bail ‑‑ Accused challenging constitutionality of bail provisions ‑‑ Whether habeas corpus available remedy ‑‑ Canadian Charter of Rights and Freedoms, s. 24(1) ‑‑ Constitution Act, 1982, s. 52 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 515(6) (d), 520 .
Constitutional law ‑‑ Charter of Rights ‑‑ Right to bail ‑‑ Reverse onus ‑‑ Accused charged with trafficking in narcotics and denied bail ‑‑ Criminal Code provision requiring accused to show cause why detention pending trial not justified ‑‑ Whether provision infringes s. 11 (e) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 515(6) (d), 515(10) (b).
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Presumption of innocence ‑‑ Right to bail ‑‑ Accused charged with trafficking in narcotics and denied bail ‑‑ Criminal Code provision requiring accused to show cause why detention pending trial not justified ‑‑ Whether provision infringes s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 515(6) (d).
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Reverse onus ‑‑ Bail -- Accused charged with trafficking in narcotics and denied bail ‑‑ Criminal Code provision requiring accused to show cause why detention pending trial not justified ‑‑ Whether provision infringes s. 11 (d) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 515(6) (d).
Constitutional law ‑‑ Charter of Rights ‑‑ Arbitrary detention ‑‑ Accused charged with trafficking in narcotics and denied bail ‑‑ Criminal Code provision requiring accused to show cause why detention pending trial not justified ‑‑ Whether accused arbitrarily detained ‑‑ Canadian Charter of Rights and Freedoms, s. 9 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 515(6) (d).
Criminal law ‑‑ Judicial interim release ‑‑ Order of detention ‑‑ Accused charged with trafficking in narcotics and denied bail ‑‑ Criminal Code provision requiring accused to show cause why detention pending trial not justified ‑‑ Whether provision infringes ss. 7 , 9 , 11 (d) or 11 (e) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 515(6) (d), 515(10) (b).
The accused was charged with five counts of trafficking in narcotics, contrary to s. 4 of the Narcotic Control Act, and was ordered detained until trial. At the preliminary inquiry, the accused was committed to trial and the judge refused his application, under s. 523(2) (b) of the Criminal Code , to review the order denying bail. The accused then brought an application for habeas corpus, arguing that s. 515(6)(d) of the Code is unconstitutional, and that accordingly his detention was illegal. This section provides that an accused charged with having committed a drug offence under s. 4 or 5 of the Narcotic Control Act, or with conspiracy to commit any of these offences, shall be detained in custody until trial unless he shows cause why his detention is not justified. The Superior Court judge dismissed the accused's application on the ground that there was an alternative remedy, namely a review of the bail order under s. 520 of the Code. The Court of Appeal allowed the accused's appeal, holding that habeas corpus was an available remedy in the circumstances and that s. 515(6)(d) of the Code violates ss. 9 , 11 (d) and 11 (e) of the Canadian Charter of Rights and Freedoms and is not justified under s. 1 . The court found it unnecessary to analyze s. 515(6) (d) under s. 7 of the Charter .
Held (La Forest and McLachlin JJ. dissenting): The appeal should be allowed and the application for habeas corpus dismissed.
(1) Habeas Corpus
In the narrow circumstances of this case, habeas corpus is available as a remedy against a denial of bail. The accused's claim is a special type of constitutional claim. He is seeking (1) a determination that s. 515(6)(d) of the Code violates the Charter and therefore is of no force and effect under s. 52 of the Constitution Act, 1982 ; and (2) a remedy under s. 24(1) of the Charter , namely a new bail hearing in accordance with criteria for determining bail which are constitutionally valid. Where the refusal to grant bail is challenged in a s. 52 claim coupled with an application for a remedy under s. 24(1) , habeas corpus is an adequate remedy. The constitutional claim can be determined without evidence about the applicant's specific circumstances. If the claim is successful, the court can then order a new bail hearing. In these circumstances, an application for habeas corpus must not fail merely because another remedy is also available. Technical legal distinctions which interfere with the court's ability to adjudicate Charter claims are to be rejected. Outside the narrow circumstances of this case, however, habeas corpus is not an appropriate remedy for a denial of bail. Under s. 24(1) of the Charter , courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process. In general, a challenge to a denial of bail should be brought by means of a review under s. 520 of the Code.
(2) Validity of s. 515(6) (d) of the Criminal Code
Per Lamer C.J. and Sopinka and Iacobucci JJ.: Section 515(6)(d) of the Code, to the extent that it requires the accused to show cause why detention is not justified, does not violate ss. 7 , 9 , 11 (d) or 11 (e) of the Charter .
Section 11 (d) of the Charter creates a procedural and evidentiary rule which operates at the trial requiring the prosecution to prove the guilt of the accused beyond a reasonable doubt. This section has no application at the bail stage of the criminal process where guilt or innocence is not determined and where punishment is not imposed. But s. 11(d) does not exhaust the operation of the presumption of innocence as a principle of fundamental justice under s. 7 of the Charter . The presumption of innocence under s. 7 applies at all stages of the criminal process and its particular requirements will vary according to the context in which it comes to be applied. In this case, however, the Charter challenge falls to be determined according to s. 11 (e) of the Charter , rather than under s. 7 . Section 11 (e) offers "a highly specific guarantee" which covers precisely the accused's complaint. The substantive right in s. 7 to be presumed innocent at the bail stage does not contain any procedural content beyond that contained in s. 11 (e).
Section 11 (e) creates a broad right guaranteeing both the right to obtain bail and the right to have that bail set on reasonable terms. The meaning of "bail" in s. 11 (e) includes all forms of judicial interim release. While s. 515(6)(d) requires the accused to demonstrate that detention is not justified, thereby denying the basic entitlement under s. 11 (e) to be granted bail unless pre-trial detention is justified by the prosecution, it provides "just cause" to deny bail in certain circumstances and therefore does not violate s. 11 (e). First, the denial of bail occurs only in a narrow set of circumstances. Second, it is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to the bail system. Section 515(6)(d) applies only to a very small number of offences, all of which involve the distribution of narcotics, and bail is denied only when the persons who are charged with these offences are unable to demonstrate that detention is not justified having regard to the specified grounds set out in s. 515(10)(a) and (b) of the Code. The special bail rules in s. 515(6)(d) merely establish an effective bail system for specific offences for which the normal bail system would allow continuing criminal behaviour and an intolerable risk of absconding. Because of their unique characteristics, the offences subject to s. 515(6)(d) are generally committed in a very different context than most other crimes. Trafficking in narcotics occurs systematically, usually within a highly sophisticated and lucrative commercial setting, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail. There is also a marked danger that an accused charged with these offences will abscond rather than appear for trial. Drug importers and traffickers have access both to a large amount of funds and to organizations which can assist in a flight from justice. The special bail rules in s. 515(6)(d) combat the pre‑trial recidivism and absconding problems by requiring the accused to demonstrate that they will not arise. The scope of these special rules is thus carefully tailored to achieve a properly functioning bail system. Section 515(6)(d) also applies to small or casual drug dealers, but they will normally have no difficulty justifying their release and obtaining bail. Section 515(6)(d) allows differential treatment based on the seriousness of the offence. Moreover, the onus which it imposes is reasonable in the sense that it requires the accused to provide information which he is most capable of providing.
While s. 515(6)(d) provides for persons to be "detained" within the meaning of s. 9 of the Charter , those persons are not detained "arbitrarily". Detention under s. 515(6) (d) is not governed by unstructured discretion. The section fixes specific conditions for bail. Furthermore, the bail process is subject to very exacting procedural guarantees and subject to review by a superior court.
Normally an order for a new bail hearing would have been issued under s. 686(8) of the Code and a reasonable opportunity given to the accused to show cause why his detention is not justified having regard to the grounds set out in s. 515(10) , including s. 515(10) (b) as altered by this Court in Morales. There will be no such order in this case, however, since the accused has already been tried, convicted and sentenced. That order would be of no force or effect as the issue of the accused's liberty is moot.
Per L'Heureux‑Dubé and Gonthier JJ.: The reasons of Lamer C.J. were agreed with, subject to the reasons of Gonthier J. in Morales in which he concludes that the criterion of public interest in s. 515(10)(b) of the Code is not unconstitutional, and subject to some concerns about the manner in which the presumption of innocence, as an integral value protected by s. 7 of the Charter , is dealt with by the Chief Justice in relation to the bail provisions of the Code. The analysis leading to the decision as to bail entails a consideration and weighing of the accused's entitlement to bail or liberty interest on the one hand, and the circumstances provided for in s. 515(10) which may justify a denial of bail on the other. The liberty interest is only one albeit an important factor to be considered and may be outweighed by others.
Per McLachlin J. (dissenting): The reasons of Lamer C.J. were agreed with except for his conclusion that s. 515(6)(d) of the Code does not violate s. 11 (e) of the Charter . Section 515(6) (d) denies bail to all persons charged with having committed an offence under s. 4 or 5 of the Narcotic Control Act who cannot show cause why their detention in custody is not justified. This section fails to distinguish between the large‑scale commercial drug trafficker and small or casual traffickers and its wide scope can be used to deny bail to people when there is no reason or "just cause" for doing so. The risk that the accused will continue his criminal activity while awaiting trial or will abscond and not appear for trial may be "just cause" for denying bail to persons charged with serious, large‑scale or commercial trafficking, but these reasons do not apply to other traffickers. Where bail is denied without just cause, s. 11 (e) of the Charter is infringed. The mere possibility of denial of bail without "just cause" is enough to overturn s. 515(6) (d).
Section 515(6)(d) of the Code is not justifiable under s. 1 of the Charter . While the legislative objectives of avoiding repeat offences and absconding are of sufficient importance to warrant overriding a constitutional right, s. 515(6) (d) goes further than is necessary to achieve those objectives. There is no reason to conclude that small and casual traffickers pose any particular threat of repeating the offence or fleeing from their trial. Section 515(6) (d) is thus of no force and effect pursuant to s. 52 of the Constitution Act, 1982 .
Per La Forest J. (dissenting): For the reasons given by McLachlin J., s. 515(6)(d) of the Code violates s. 11 (e) of the Charter and is not justifiable under s. 1 . It is unnecessary to deal with the other provisions of the Charter .
Cases Cited
By Lamer C.J.
Applied: R. v. Morales, [1992] 3 S.C.R. 000; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Hufsky, [1988] 1 S.C.R. 621; referred to: R. v. Oakes, [1986] 1 S.C.R. 103; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Seaboyer, [1991] 2 S.C.R. 577; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; Woolmington v. Director of Public Prosecutions, [1935] A.C. 462; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Gardiner, [1982] 2 S.C.R. 368; Imperial Oil Ltd. v. Tanguay, [1971] C.A. 109; Dean v. Dean, [1987] 1 F.L.R. 517; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Généreux, [1992] 1 S.C.R. 259; Stack v. Boyle, 342 U.S. 1 (1951); Carlson v. Landon, 342 U.S. 524 (1952); United States v. Edwards, 430 A.2d 1321 (1981), certiorari denied 455 U.S. 1022 (1982); United States v. Salerno, 481 U.S. 739 (1987); R. v. Bray (1983), 2 C.C.C. (3d) 325; R. v. Lauze (1980), 17 C.R. (3d) 90; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Wilson, [1990] 1 S.C.R. 1291.
By Gonthier J.
Referred to: R. v. Morales, [1992] 3 S.C.R. 000.
By McLachlin J. (dissenting)
R. v. Drysdelle (1978), 41 C.C.C. (2d) 238; R. v. Larson (1972), 6 C.C.C. (2d) 145.
Statutes and Regulations Cited
Anti‑Drug Abuse Act of 1986, Pub. L. No. 99‑570, 100 Stat. 3207 (1986).
Anti‑Drug Abuse Act of 1988, Pub. L. No. 100‑690, 102 Stat. 4181 (1988).
Bail Reform Act, S.C. 1970‑71‑72, c. 37.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 , 11 (d), (e), 24(1) .
Constitution Act, 1982, s. 52 .
Constitution of the United States, Eighth Amendment.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 254(3) [rep. & sub. c. 27 (1st Supp.), s. 36 ], 487(1) [am. idem, s. 68 ], 504, 507(1) [idem, s. 78 ], 515(1) [rep. & sub. idem, s. 83 ], 515(2) [am. idem, s. 186 (Sch. IV, item 7)], 515(5), 515(6)(d), 515(7), 515(8), 515(10)(a), 515(10)(b), 516, 518(1)(b), 520(1) [rep. & sub. idem, s. 86 ], 520(8), 521, 523(2)(b) [idem, s. 89 ], 525(1) [am. idem, s. 90 ], 525(3), 686(8), 784(3).
Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 2 "traffic", 4, 5.
Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, SI/74‑53, s. 15 [am. SI/89‑52].
Authors Cited
Australia. Parliament of the Commonwealth of Australia. Report of the Australian Royal Commission of Inquiry into Drugs, Book B. Canberra: A.G.P.S., 1980.
Carrigan, D. Owen. Crime and Punishment in Canada: A History. Toronto: McClelland & Stewart, 1991.
Olah, John A. "Sentencing: The Last Frontier of the Criminal Law" (1980), 16 C.R. (3d) 97.
Québec. Groupe de travail sur la lutte contre la drogue. Rapport du groupe de travail sur la lutte contre la drogue. Québec: Publications du Québec, 1990.
United States. Senate. Judiciary Committee. Report No. 98‑225, Comprehensive Crime Control Act, 1983, 98th Cong., 1st Sess. Report of the Committee on the Judiciary on S. 1762. Washington: U.S.G.P.O., 1983.
Verrilli Jr., Donald B. "The Eighth Amendment and the Right to Bail: Historical Perspectives" (1982), 82 Colum. L. Rev. 328.
APPEAL from a judgment of the Quebec Court of Appeal, [1990] R.J.Q. 2438, 79 C.R. (3d) 90, 5 C.R.R. (2d) 164, 59 C.C.C. (3d) 406, setting aside a judgment of the Superior Court, dismissing an application for a writ of habeas corpus. Appeal allowed, La Forest and McLachlin JJ. dissenting.
Robert Marchi, for the appellant.
Christian Desrosiers, for the respondent.
Jacques Malb{oe}uf, Q.C., for the intervener the Attorney General of Canada.
J. A. Ramsay, for the intervener the Attorney General for Ontario.
John Thomson Irvine, for the intervener the Attorney General for Saskatchewan.
Bruce Duncan and Aimée Gauthier, for the intervener the Criminal Lawyers' Association.
//Lamer C.J.//
The judgment of Lamer C.J. and Sopinka and Iacobucci JJ. was delivered by
Lamer C.J. -- This appeal was argued along with R. v. Morales, [1992] 3 S.C.R. 000. Both cases involve the constitutionality of the bail provisions of the Criminal Code, R.S.C., 1985, c. C-46 , and for the first time require this Court to examine the scope of the right to bail under s. 11 (e) of the Canadian Charter of Rights and Freedoms .
I - Facts
The respondent Edwin Pearson was arrested in September 1989 and charged with five counts of trafficking in narcotics, contrary to s. 4 of the Narcotic Control Act, R.S.C., 1985, c. N-1. A bail hearing was held shortly after his arrest. Pearson was denied bail and ordered detained in custody until trial.
Shortly thereafter, a preliminary inquiry was held and Pearson was committed to trial. At the end of the preliminary inquiry, Pearson brought an application to the preliminary inquiry judge under s. 523(2) (b) of the Criminal Code to review the order that he remain in custody until trial. The preliminary inquiry judge refused to review this order.
Pearson then brought an application for habeas corpus. He argued that s. 515(6) (d) of the Criminal Code is unconstitutional, and that accordingly his detention was illegal. The habeas corpus application was heard by Biron J. of the Quebec Superior Court on November 17, 1989. At the outset of the hearing, the Attorney General of Canada obtained leave to intervene in the application and moved to dismiss the application on the ground that there was an alternative remedy, namely a review of the bail order under s. 520 of the Criminal Code . Biron J. granted this motion and dismissed Pearson's application.
Pearson appealed. On September 10, 1990, the Quebec Court of Appeal allowed the appeal, holding that habeas corpus was an available remedy in the circumstances and that s. 515(6) (d) of the Criminal Code violates ss. 9 , 11 (d) and 11 (e) of the Charter : [1990] R.J.Q. 2438, 59 C.C.C. (3d) 406, 5 C.R.R. (2d) 164, 79 C.R. (3d) 90.
The Attorney General of Quebec now appeals to this Court. The Attorney General of Canada, the Attorney General for Ontario and the Attorney General for Saskatchewan have intervened in support of the position taken by the Attorney General of Quebec. The Criminal Lawyers' Association has intervened in support of the position taken by the respondent.
II - Relevant Statutory and Constitutional Provisions
At issue in this appeal is the validity of s. 515(6) (d) of the Criminal Code , which reads as follows:
515. . . .
(6) Notwithstanding any provision of this section, where an accused is charged
. . .
(d) with having committed an offence under section 4 or 5 of the Narcotic Control Act or the offence of conspiring to commit an offence under section 4 or 5 of that Act,
the justice shall order that the accused be detained in custody until he is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified, but where the justice orders that the accused be released, he shall include in the record a statement of his reasons for making the order.
Section 515(6) (d) is challenged under ss. 7 , 9 , 11 (d) and 11 (e) of the Charter , which read as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
III -- Lower Court Judgments
Quebec Superior Court
Biron J. held that the application for habeas corpus was a disguised review of the order that Pearson be detained in custody until trial. Biron J. held that such a review should have been brought under s. 520 of the Criminal Code , and that it would be incongruous to release Pearson solely on the basis of the unconstitutionality of s. 515(6) (d). A review under s. 520 could determine the constitutional issue and could also determine whether, without application of s. 515(6) (d), the accused should be granted bail.
As a result, Biron J. dismissed the application, but expressly reserved the right to bring an application for review in the appropriate form.
Quebec Court of Appeal (Rothman, Baudouin and Proulx JJ.A.)
The reasons of the court were delivered by Proulx J.A. Considering the availability of habeas corpus as a means to attack the constitutionality of s. 515(6) (d), Proulx J.A. held that Pearson's application was effectively an application for a remedy under s. 24(1) of the Charter , and accordingly no recourse to habeas corpus was needed at all. Furthermore, according to R. v. Gamble, [1988] 2 S.C.R. 595, in the constitutional context a valid application for habeas corpus could not fail merely because another remedy was also available. Proulx J.A. disagreed with Biron J.'s conclusion that the application was a disguised review of the order that Pearson be detained in custody until trial. A review has a different scope than an application for habeas corpus. In a review, an applicant can adduce fresh evidence and argue that the justice made a manifest error in assessing the evidence. An application for habeas corpus would be restricted to the constitutional issue. Proulx J.A. held that Pearson could not be deprived of his right to this remedy.
On the merits of the application, Proulx J.A. held that the right to bail under s. 11 (e) is not absolute but rather is limited by the concept of "just cause". He considered several definitions of "just cause" and noted that pre-trial detention entails serious repercussions. Proulx J.A. held that bail constitutes an essential element of procedural equity and is a right closely related to the rights under ss. 9 and 11 (d). In this context, Proulx J.A. held that "just cause" must consist of a restriction which is rational, necessary, equitable and consistent with other procedural guarantees. Proulx J.A. held that the primary and secondary grounds for detention of an accused which are set out in s. 515(10) constitute just cause justifying the deprivation of liberty.
Proulx J.A. held that it is completely arbitrary and unjust to create an exception to the bail regime without considering the nature of the narcotic, the seriousness of the offence, the likelihood of conviction, the degree of participation and the individual's specific circumstances. There is no rational basis for treating someone charged with possession of a small quantity of hashish for the purpose of trafficking in the same manner as a repeat offender charged with trafficking cocaine. The situation is worsened by the lack of analogous treatment of more dangerous offences, such as sexual assault, domestic assault and extortion. Furthermore, the onus on the accused is not even necessary because the Crown has the opportunity to oppose bail and to show that the public interest requires the detention of the accused.
Proulx J.A. held that s. 515(6) (d) is inconsistent with the concept of just cause because it requires persons accused of certain offences to be detained unless there is just cause to release them. Proulx J.A. also found the manner of applying this regime on the basis of the charge laid against the accused to be arbitrary and discriminatory.
Turning to s. 11 (d), Proulx J.A. held that the presumption of innocence applies at all stages of criminal proceedings, and not just at the stage of ultimate disposition. Proulx J.A. held that a general rule of mandatory detention based solely on the charge prevents the treatment of the accused as a person who is presumed innocent. Detention increases the likelihood that the accused will be found guilty. In addition, Proulx J.A. noted that s. 11 (d) protects the right to a fair trial, and held that the rights to a fair trial and to make full answer and defence cannot be preserved without the right to bail.
Turning to ss. 7 and 9 , Proulx J.A. held that his analysis of s. 11 (e) indicated the arbitrary character of s. 515(6) (d). This approach led him to conclude that s. 515(6) (d) violates s. 9 . Given that he had found violations of ss. 9 , 11 (d) and 11 (e), Proulx J.A. found it unnecessary to analyze s. 515(6) (d) under s. 7 .
Finally, Proulx J.A. turned to s. 1 . He found that s. 515(6) (d) passed the first branch of the test in R. v. Oakes, [1986] 1 S.C.R. 103, but failed the second branch. Proulx J.A. found no rational connection between the objective and the means chosen. The provision was discriminatory and arbitrary, and it had not been demonstrated that interim detention could reduce the incidence of crime. Proulx J.A. also found that the restriction did not constitute a minimal infringement of Charter rights. The goal of protecting the public could be achieved by using the general regime set out in s. 515 . Experience in the United States and England also served to demonstrate that such an arbitrary measure is unnecessary to achieve the objective which is shared in all free and democratic societies. As a result, Proulx J.A. held that s. 515(6) (d) was not justified under s. 1 .
As a result, the appeal was allowed and s. 515(6) (d) was held to violate ss. 9 , 11 (d) and 11 (e) of the Charter .
IV - Issues
The following constitutional questions were stated on April 9, 1991:
1.Does s. 515(6)(d) of the Criminal Code of Canada limit the rights guaranteed in ss. 7 , 9 , 11 (d) and 11 (e) of the Canadian Charter of Rights and Freedoms ?
2.If so, is s. 515(6) (d) of the Criminal Code of Canada a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society, as required by s. 1 of the Canadian Charter of Rights and Freedoms ?
V - Analysis
A. Habeas Corpus
Before considering the constitutional issues in this case, it is necessary to consider a preliminary issue involving the scope of habeas corpus. The appellant submits that habeas corpus is not available in this case because an alternative remedy exists, namely a bail review under s. 520 of the Criminal Code . While in general habeas corpus is not available as a remedy against a denial of bail, in my opinion habeas corpus is available as a remedy in the narrow circumstances of this case.
The availability of habeas corpus in this case is closely tied to the nature of the claim. The claim in this case is a constitutional claim. Moreover, it is a special type of constitutional claim. The respondent is seeking two constitutional remedies. First, he is seeking a determination that s. 515(6) (d) of the Criminal Code violates the Charter and therefore is of no force and effect under s. 52 of the Constitution Act, 1982 . Second, he is seeking a remedy under s. 24(1) , namely a new bail hearing in accordance with criteria for determining bail which are constitutionally valid. Thus the respondent is making a s. 52 challenge coupled with an application for a s. 24(1) remedy.
In R. v. Gamble, supra, Wilson J. reviewed the scope of habeas corpus as a Charter remedy. She held that habeas corpus is a flexible Charter remedy which should be applied purposively in order to permit proper adjudication of Charter claims. She stated at p. 638:
In general, applicants for Charter relief should, I believe, be allowed a reasonable measure of flexibility in framing their claims for relief in light of the interests the Charter rights on which they rely were designed to protect.
Further, at p. 640 she stated:
. . . it is understandable that courts have, in general, not bound themselves to limited categories or definitions of jurisdictional review when the liberty of the subject was at stake. I think that this trend should be affirmed where habeas corpus is sought as a Charter remedy and that distinctions which have become uncertain, technical, artificial and, most importantly, non-purposive should be rejected.
Thus the emphasis in Gamble is to ensure that Charter claims are adjudicated. Technical legal distinctions which interfere with the court's ability to adjudicate Charter claims are to be rejected.
Most challenges to a refusal to grant bail cannot be properly addressed by means of habeas corpus. In a bail review under s. 520 , all the circumstances which are relevant to a determination of bail are before the court: see, for example, s. 15 of the Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, which requires an affidavit setting out precisely the information needed by a court making a s. 520 review. Such evidence will not normally be before the court in an application for habeas corpus, making a proper reassessment of a bail order impossible.
However, where the refusal to grant bail is challenged in a s. 52 claim coupled with an application for a remedy under s. 24(1) , habeas corpus is an adequate remedy. The constitutional claim can be determined without evidence about the applicant's specific circumstances. If the claim is successful, the court can order a new bail hearing to be held in accordance with constitutionally valid criteria. In these circumstances, I am of the opinion that to refuse to address the respondent's claim simply because another remedy exists would be to adopt the very type of uncertain, artificial, technical and non-purposive distinction which Wilson J. rejected in Gamble. The respondent's Charter claim must be adjudicated. The rubric under which the claim is advanced should not interfere with the Court's duty to adjudicate the claim. It would be overly technical and would place form over substance to dismiss the respondent's application on the sole ground that he framed it as an application for habeas corpus.
Outside the narrow circumstances of this case, habeas corpus is not a remedy for a denial of bail. As Wilson J. noted in Gamble at p. 642, "[u]nder section 24(1) of the Charter courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process". In the context of bail, a s. 520 review is the "appropriate appeal process" which should not be circumvented by habeas corpus. This approach is consistent with McIntyre J.'s holding in Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 959, that Charter remedies are subject to normal and established procedures and do not create the right to bring an interlocutory appeal. The undesirability of interlocutory Charter appeals was also noted in R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 638-39. Allowing the use of habeas corpus as a general remedy for a bail review would create precisely this type of interlocutory appeal (see s. 784(3) of the Criminal Code , which provides for an appeal against a refusal of habeas corpus).
In Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, Cory J. warned at p. 1418 against allowing habeas corpus to develop as a costly and unwieldy system parallel to an existing system of judicial review:
It is necessary to make a further comment. As I have made clear above, the continuing detention of a dangerous offender sentenced pursuant to the constitutionally valid provisions of the Criminal Code will only violate s. 12 of the Charter when the National Parole Board errs in the execution of its vital duties of tailoring the indeterminate sentence to the circumstances of the offender. This tailoring is performed by applying the criteria set out in s. 16(1) of the Parole Act. Since any error that may be committed occurs in the parole review process itself, an application challenging the decision should be made by means of judicial review from the National Parole Board decision, not by means of an application for habeas corpus. It would be wrong to sanction the establishment of a costly and unwieldy parallel system for challenging a Parole Board decision.
Similarly, since any error in the denial of bail occurs within the normal bail review process, a challenge to a denial of bail should be brought by means of a review under s. 520 rather than an application for habeas corpus. Just as habeas corpus should not become a costly and unwieldy parallel system of parole review, it should not become a costly and unwieldy parallel system of bail review.
In most cases, habeas corpus is not a remedy against a refusal to grant bail. However, in the narrow circumstances of this case, it was open to the respondent to frame his Charter claim as an application for habeas corpus. This Charter claim must be adjudicated.
B. Validity of Section 515(6) (d)
(1)Sections 7 and 11 (d): Fundamental Justice and the Presumption of Innocence
The presumption of innocence has been described as the "golden thread" woven throughout the web of the criminal law (see Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.), at p. 481). It is also the common thread linking the various issues in this appeal. This appeal examines the validity of s. 515(6) (d) of the Criminal Code under ss. 7 , 9 , 11 (d) and 11 (e) of the Charter . Each of these Charter issues is linked by a single concept, namely the presumption of innocence.
As I noted in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 512, "[s]ections 8 to 14 [of the Charter ] address specific deprivations of the "right" to life, liberty and security of the person in breach of principles of fundamental justice, and as such, violations of s. 7 . They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"". Consistent with this view, this Court has held that the presumption of innocence, "[a]lthough protected expressly in s. 11 (d) of the Charter . . . is referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter ": R. v. Oakes, supra, per Dickson C.J., at p. 119.
Section 11 (d) of the Charter sets out the presumption of innocence in the context of its operation at the trial of an accused person. As I stated in Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357:
Section 11 (d) imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence.
This operation of the presumption of innocence at trial, where the accused's guilt of an offence is in issue, does not, in my opinion, exhaust the operation in the criminal process of the presumption of innocence as a principle of fundamental justice. The presumption of innocence, as a substantive principle of fundamental justice "protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct": Oakes, supra, at p. 119. In my view, the presumption of innocence is an animating principle throughout the criminal justice process. The fact that it comes to be applied in its strict evidentiary sense at trial pursuant to s. 11 (d) of the Charter , in no way diminishes the broader principle of fundamental justice that the starting point for any proposed deprivation of life, liberty or security of the person of anyone charged with or suspected of an offence must be that the person is innocent.
This, of course, does not mean that there can be no deprivation of life, liberty or security of the person until guilt is established beyond reasonable doubt by the prosecution at trial. As I noted in Re B.C. Motor Vehicle Act, supra, at p. 512, "[t]he term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right." The illustrations of deprivations of life, liberty and security of the person otherwise than in accordance with the principles of fundamental justice set out in ss. 8 to 14 of the Charter are suggestive of this conclusion. Section 8 speaks in terms of unreasonable search and seizure, s. 9 of arbitrary detention and s. 11(e) of the right not to be denied reasonable bail "without just cause". Each of these specific examples is consistent with the view that certain deprivations of liberty and security of the person may be in accordance with the principles of fundamental justice where there are reasonable grounds for doing so, rather than only after guilt has been established beyond a reasonable doubt. As the majority of this Court (per La Forest J.) noted in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361:
It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.
This is true with respect to the presumption of innocence as a substantive principle of fundamental justice within s. 7 of the Charter . While the presumption is pervasive in the criminal process, its particular requirements will vary according to the context in which it comes to be applied.
In determining the precise content of the substantive principle in a specific context, the examples given in the Charter itself, ss. 8 to 14 , will be instructive, as will "the basic principles of penal policy that have animated legislative and judicial practice in Canada and other common law jurisdictions" (R. v. Lyons, supra, at p. 327).
Examples are legion of how the various stages of the criminal process have accommodated themselves to the fundamental principle that the assumed innocence of an accused or a suspect is the starting point for any proposed interference with that person's life, liberty or security of the person. In general, one who proposes to lay an information must believe, on reasonable grounds, that an offence has been committed: see, e.g., Criminal Code, s. 504 . The justice receiving the information must consider, before issuing process, that a case for doing so has been made out: see, e.g., Criminal Code, s. 507(1) . Much the same may be said with respect to the power to arrest. In general, a peace officer must have reasonable grounds to effect the arrest. There must be reasonable and probable grounds to demand a breath sample under s. 254(3) of the Code, and reason