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Bail Reviews – Section 525 of The Criminal Code of Canada

Bail Reviews – Section 525 of The Criminal Code of Canada

Section 525 Bail Reviews

The Law in Canada has been entirely divided on the legal procedure a Justice should follow when conducting a Supreme Court 525 Bail Review.

One position states that the Accused must establish an unreasonable delay in their matter coming to trial and then they will be entitled to a bail review.

The alternative position states that at 90 days the Accused is entitled to a bail review, and at the review the presiding Justice may consider whether there has been an unreasonable delay in bringing the Accused’s matter to trial.

The latter position is more consistent with the language of the legislation. The section clearly states “may”. May does not mean shall, must or a prerequisite threshold. May means a possible consideration.

At 2010 the British Columbia Supreme Court decision of Justice Gaul in R. v. Sarkozi was consistent with the latter position. Sarkozi addressed a variety of cases from around that country and took into account both positions on the interpretation of this provision, then explained why they came to the conclusion they did.

In 2011 a the decision of Justice Bernard in R. v. Jerace departed from the reasoning in Sarkozi and a number of cases at the Supreme Court level have since followed that decision.

In order to keep in line with the way the law is developed there are certain principles Judges follow in their process of reasoning. So for example Judges of lower courts deciding cases that are like cases already decided in higher court, they are bound and must decide them the same. This is the principle of stare decisis that like cases be treated alike. Judges of higher courts are not bound by decisions of Judges in lower courts, however those decisions of the lower court may be persuasive in the higher court Judges reasoning. Judges must address certain principles when departing from a decision of a Judge of the same level of Court. Those principles are called the Hansard principles.   This system of reasoning is in place in order to promote consistency in the law.

The Jerace decision departed from the Sarkozi decision without addressing the Hansard principles. The Jerace decision did not address the Hansard principles, canvassed authority that was discussed in Sarkozi, but Justice .. did not explain why he was departing from the Sarkozi decision. The decision Justice … relied on as support for this position did not provide an explanation for this alternate reading of the legislation, that the threshold must be met prior to the Justice reviewing the detention order.

5 cases have followed Jerace without addressing the Hansard principles and relied on cases that were addressed in the Sarkozi decision.

5 cases at the Supreme Court level in British Columbia have followed the decision in Jerace that unreasonable delay must be established first, then there will be a bail review. This line of cases persisted for the last 5 years and approximately 6 Supreme Court decisions supported this proposition. Each decision relied on the previous decision.

In November of this year Justin V. Myers argued in the Supreme Court of British Columbia at New Westminster that the Honourable Justice Groves should reconsider this legal issue and endorse the Sarkozi decision as the current law.

“We are not crunching numbers here, we are developing the law.”

This needs to be done in a logical, reasoned and consistent way. We cannot perpetuate error. We need to go back and see where we went wrong so we can make things right.

On November 13, 2014 the Honourable Justice Groves of the Supreme Court of British Columbia at New Westminster, rendered his decision that the Sarkozi approach was the correct approach to be taken. The accused is entitled to a bail review at 90 days, unreasonable delay is only a factor that the Judge may consider in determining whether the Accused should be granted bail. Written reasons have been ordered.

Section 525 of the Criminal Code of Canada reads as follows:

525. (1) Where an accused who has been charged with an offence other than an offence listed in section 469 and who is not required to be detained in custody in respect of any other matter is being detained in custody pending his trial for that offence and the trial has not commenced

(a) in the case of an indictable offence, within ninety days from

(i) the day on which the accused was taken before a justice under section 503, or

(ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision, or

(b) in the case of an offence for which the accused is being prosecuted in proceedings by way of summary conviction, within thirty days from

(i) the day on which the accused was taken before a justice under subsection 503(1), or

(ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision,

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.

Notice of hearing

(2) On receiving an application under subsection (1), the judge shall

(a) fix a date for the hearing described in subsection (1) to be held in the jurisdiction

(i) where the accused is in custody, or

(ii) where the trial is to take place; and

(b) direct that notice of the hearing be given to such persons, including the prosecutor and the accused, and in such manner as the judge may specify.

Matters to be considered on hearing

(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.

Order

(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 from custody pending the trial of the charge on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsection 515(4) as the judge considers desirable.

Warrant of judge for arrest

(5) Where a judge having jurisdiction in the province where an order under subsection (4) for the release of an accused has been made is satisfied that there are reasonable grounds to believe that the accused

(a) has contravened or is about to contravene the undertaking or recognizance on which he has been released, or

(b) has, after his release from custody on his undertaking or recognizance, committed an indictable offence,

he may issue a warrant for the arrest of the accused.

Arrest without warrant by peace officer

(6) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused who has been released from custody under subsection (4)

(a) has contravened or is about to contravene the undertaking or recognizance on which he has been released, or

(b) has, after his release from custody on his undertaking or recognizance, committed an indictable offence,

may arrest the accused without warrant and take him or cause him to be taken before a judge having jurisdiction in the province where the order for his release was made.

Hearing and order

(7) A judge before whom an accused is taken pursuant to a warrant issued under subsection (5) or pursuant to subsection (6) may, where the accused shows cause why his detention in custody is not justified within the meaning of subsection 515(10), order that the accused be released on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions, described in subsection 515(4), as the judge considers desirable.

Provisions applicable to proceedings

(8) The provisions of sections 517, 518 and 519 apply with such modifications as the circumstances require in respect of any proceedings under this section.

Directions for expediting trial

(9) Where an accused is before a judge under any of the provisions of this section, the judge may give directions for expediting the trial of the accused.

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