The Supreme Court of Canada has clarified the correct approach to pre-trial detention reviews and affirmed that denying a person bail should be a last resort. The decision sets guidelines for the review procedure under the Criminal Code for anyone in jail awaiting trial.
In Canada, the right not to be denied reasonable bail without just cause is enshrined in Section 11 of the Charter. The default position is that an accused person should be released before their trial. Only in certain circumstances does a person forfeit their right to be released. Grounds for denying bail include: if an accused is a flight risk; if they pose a threat to public safety; or if there is a substantial likelihood they will interfere with the course of justice. Bail can also be denied in cases where the crime is so heinous and the evidence against an accused is so overwhelming, granting bail would destroy the public’s confidence in the administration of justice.
“Release is favoured at the earliest reasonable opportunity and on the least onerous grounds.”
The onus is usually on the Crown to prove on the balance of probabilities that an accused should be denied bail. In certain circumstances, however, an accused may need to show why they should be allowed to go back into the community while awaiting their court date. This is called a “reverse onus” bail hearing. Reverse onus bail hearings can occur when an accused was already on bail and they are charged for a new criminal offence or they breached their bail conditions. They can also occur if they are charged with certain drug-related offences and other serious offences.
A person in detention ahead of their trial is entitled to a review hearing. Section 525 of the Criminal Code sets out provisions about when they happen, what factors are considered and whether they are mandatory but, according to the Supreme Court, they are not always applied. According to Statistics Canada, accused persons in pre-trial custody now outnumber those in sentenced custody on any given day in Canada although this includes those who are eligible for reverse onus bail hearings. Approximately 7 percent of those in remand were still in custody after three months with some spending up to two years awaiting trial in detention.
R. v. Myers
The case brought before the Supreme Court involved a man who was arrested on various firearms charges in British Columbia in 2016 while on probation for another crime. After an earlier application for bail got rejected, he applied for a 90-day bail review under s. 525, Crown and defence disagreed over the correct procedure for a review. Crown argued an accused must prove there has been an unreasonable delay in bringing the criminal case to trial in order for a review hearing to be held. Defence counsel argued it should not be necessary for the accused to prove a trial delay is unreasonable. The accused eventually plead guilty to lesser charges, rendering the appeal against pre-trial detention moot but the Supreme Court decided it was necessary to establish which side was correct.
The Supreme Court found the purpose of a s. 525 hearing is, “to prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial”. Pre-trial detentions should be subject to review by a judge at set points in time to regularly consider whether the continued detention of an accused person is justified. The other purpose of the provisions is to expedite the trial of anyone in pre-trial detention.
The Supreme Court ruling also stated: “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 wellbeing and on their families, and the loss of their livelihoods.”
Implications for future pre-trial detention review hearings
The Supreme Court established the correct approach to pre-trial detention reviews. Jailers must now apply for to a judge for a detention review hearing 30 days after an accused’s last bail hearing for summary offences or 90 days for indictable offences. Upon receiving the application, the judge must fix a date and give notice for the hearing at the earliest opportunity.
The Court also confirmed that review hearings are to be an automatic procedure. The responsibility for making applications and fixing dates must lie with jailors and judges, not the accused, the Court ruled. During review hearings, judges may consider previous detention review hearings and the defence and Crown may submit new evidence about whether an accused should or should not be denied bail.
The Court also established that an accused does not have to prove there has been an unreasonable delay in their trial in order to get a hearing.
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