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Commentary & Notable Paragraphs from The Supreme Court Of Canada Decision R. v. St-Cloud [2015] S.C.J. No. 27

Commentary & Notable Paragraphs from The Supreme Court Of Canada Decision

R v. St-Cloud [2015] S.C.J. No. 27

 

The following are notable parts of the decision from the Supreme Court of Canada in R. v. St-Cloud.

It is an exhaustive and detailed decision on the tertiary ground and the use of the tertiary ground. The SCC has opened the door for a broader use of the tertiary ground in interpreting previous more restrictive approaches determined at the appellate court level from various jurisdictions.

Much of the language and observance of previous jurisprudence creates guidance as to how to navigate and discuss this ground from a Crown and Defence perspective moving forward.

HELD: Appeal allowed. The scope of s. 515(10)(c) Cr.C. had unduly been restricted by the courts in some cases. This ground for detention was not necessarily limited to exceptional circumstances, to the most heinous of crimes or to certain classes of crimes. The interpretation of s. 515(10)(c) Cr.C. had also been truncated by a misunderstanding of the meaning of the word “public” used in the provision’s French version. The “public” were reasonable, well informed members of the community, but not legal experts with in depth knowledge of the criminal justice system. Since a decision whether to order the pre-trial release of an accused involved a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 Cr.C. to review such a decision was not open-ended. Exercising this power would be appropriate in only three situations: (1) where there was admissible new evidence; (2) where the impugned decision contained an error of law; or (3) where the decision was clearly inappropriate. In the last of these situations, a reviewing judge could not simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It was only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge could intervene. The Superior Court judge made several errors that justified reviewing his entire decision. The Crown’s case appeared to be strong, since the incident was videotaped and there was eyewitness testimony. The offence was objectively very serious, being an aggravated assault for which the maximum sentence was 14 years, one of the most severe in the Criminal Code. St-Cloud was an active participant in the extremely brutal assault. The fact that the assault was committed against a bus driver, a civil servant who worked in the community to ensure the well-being of the public, made the offence even more heinous. Also relevant were the nature and severity of the injuries sustained by the driver, and in particular the long-term effects and the impact on his career and his personal life. In light of all relevant circumstances required to be weighed by s. 515(10)(c) Cr.C., St-Cloud’s detention was necessary to maintain confidence in the administration of justice. The detention order was restored.

Court Summary:

S was charged with one count of aggravated assault under s. 268 of the Criminal Code for having assaulted a bus driver together with two other individuals. The Crown opposed the interim release of S. The justice of the peace who heard the initial application for release found that detention was necessary on the basis of s. 515(10)(b) and (c) Cr.C., that is, because the interim detention of S was necessary for the protection or safety of the public, and to maintain confidence in the administration of justice. The justice who heard the second application for release on completion of the preliminary inquiry found that the detention of S was still justified under s. 515(10)(c). S then applied under s. 520 Cr.C. for a review by a Superior Court judge, who determined that the detention of S was not necessary under s. 515(10)(c) and ordered his release.

Held: The appeal should be allowed and the detention order restored.

 

 

Notable Paragraphs

1    The repute of our criminal justice system rests on the deeply held belief of Canadians that the right to liberty and the presumption of innocence are fundamental values of our society that require protection. However, that repute also depends on the confidence citizens have that persons charged with serious crimes will not be able to evade justice, harm others or interfere with the administration of justice while awaiting trial. The risk that one of these events might tarnish the repute of the justice system was recognized by Parliament in enacting s. 515(10)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr.C.“), under which the interim detention of an accused may be ordered where that is necessary to ensure the attendance of the accused in court or to guarantee the protection or safety of the public.

2    Moreover, Parliament judged that there are circumstances in which releasing an accused person could undermine the repute of the justice system, and this led it to provide, in s. 515(10)(c) Cr.C., for a third ground for interim detention, maintaining confidence in the administration of justice. Thus, Parliament recognized that there are circumstances in which allowing a person charged with a serious crime to be released into the community pending trial in the face of overwhelming evidence might suggest to the public that justice has not been done: see R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 26.

4    The ground for detention in s. 515(10)(c) Cr.C. requires that an effort be made to strike an “appropriate balance between the rights of the accused and the need to maintain justice in the community”: Hall, at para. 41. In addition, judges must adopt the perspective of the public in determining whether detention is necessary. What the word “public” means is not always easy to understand. These difficulties no doubt explain why s. 515(10)(c) Cr.C. has generated so much discussion among legal experts and led to inconsistent results across the country.

6    This appeal is the first time this Court has been called upon to determine the extent of the power provided for in ss. 520 and 521 Cr.C. to review decisions with respect to detention or to interim release. Since a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 Cr.C. to review such a decision is not open-ended. I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene.

27    Since the enactment of the Canadian Charter of Rights and Freedoms (“the Charter“) in 1982, any person charged with an offence has the right “not to be denied reasonable bail without just cause”: s. 11(e). This Court has stated that s. 11(e) creates “a basic entitlement to be granted reasonable bail unless there is just cause to do otherwise”: R. v. Pearson, [1992] 3 S.C.R. 665, at p. 691. Section 11(e) has two distinct components: (1) the right to “reasonable bail” in terms of quantum of any monetary component and any other conditions that might be imposed; and (2) the right not to be denied bail without “just cause”.

28     In R. v. Morales, [1992] 3 S.C.R. 711, this Court struck down the component of s. 515(10)(b) Cr.C. that authorized pre-trial detention on the ground that detaining the accused was necessary in the “public interest”. The Court held that this wording was vague and imprecise and that it authorized a “standardless sweep” allowing a “court [to] order imprisonment whenever it [saw] fit”: p. 732.

31    In 2008, Parliament amended s. 515(10)(c) Cr.C. so as to make it consistent with the Court’s decision in Hall: Tackling Violent Crime Act, S.C. 2008, c. 6, s. 37(5). That version of s. 515(10)(c) Cr.C., which is still in force today, is the one at issue in this appeal:

 

  • (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

 

  • the apparent strength of the prosecution’s case,
  • the gravity of the offence,
  • the circumstances surrounding the commission of the offence, including whether a firearm was used, and

 

  • the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

The remainder of s. 515(10) Cr.C. is reproduced, together with other relevant statutory provisions, in the appendix at the end of these reasons.

 

  • Principles from Hall

32    The central issue in Hall was the constitutionality of s. 515(10)(c) Cr.C. However, the Court provided some guidance on how to interpret this provision.

 

  • Basis for Section 515(10)(c) Cr.C.

33    McLachlin C.J., writing for the majority of the Court, explained that in some circumstances it may be necessary to deny an accused bail, even where there is no risk he or she will not attend trial or may reoffend or interfere with the administration of justice: Hall, at para. 25. According to the Chief Justice, “[w]here justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter”: para. 26. Yet, she wrote, “[p]ublic confidence is essential to the proper functioning of the bail system and the justice system as a whole”: para. 27, citing Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689..

34    McLachlin C.J. also explained that s. 515(10)(c) Cr.C. creates not a ground for detention that might be characterized as “residual” in the sense that it applies only as a last resort, but one that is separate and distinct:

 

  • Bail denial to maintain confidence in the administration of justice is not a mere “catch-all” for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories. The same facts may be relevant to all three heads… . But that does not negate the distinctiveness of the three grounds. [Emphasis added.]

 

  • (Hall, at para. 30)

 

  • Test Under Section 515(10)(c) Cr.C.

35    The Chief Justice did not elaborate at length on the analysis to be conducted by a justice who must determine whether s. 515(10)(c) Cr.C. applies. However, I will reproduce the following remarks:

 

  • Section 515(10)(c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public’s confidence in the administration of justice. Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10)(c) — the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment… .

 

  • This, then, is Parliament’s purpose: to maintain public confidence in the bail system and the justice system as a whole… . Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice… . [T]he provision does not authorize a “standardless sweep” nor confer open-ended judicial discretion. Rather, it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. In sum, it is not overbroad. [Emphasis added.]

 

  • (Hall, at paras. 40-41)

 

  • (3) Principles That Must Guide the Analysis

 

39    It is true that some decisions reflect a strict application of s. 515(10)(c): see, e.g., R. v. Thomson (2004), 21 C.R. (6th) 209 (Ont. S.C.J.); R. v. B. (A) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.J.); R. v. Pichler, 2009 ABPC 24; R. v. Teemotee, 2011 NUCJ 17. This approach has also been adopted by some appellate courts. For example, the British Columbia Court of Appeal and the Ontario Court of Appeal have stated that the use of s. 515(10)(c) is justified only in rare or exceptional circumstances: R. v. Bhullar, 2005 BCCA 409, at paras. 62 and 65; R. v. Brotherston, 2009 BCCA 431, 71 C.R. (6th) 81, at paras. 30 and 35; R. v. LaFramboise (2005), 203 C.C.C. (3d) 492 (Ont. C.A.), at para. 30. A variant of this prerequisite is that s. 515(10)(c) must be used “sparingly”: LaFramboise, at para. 30; R. v. D. (R.), 2010 ONCA 899, 273 C.C.C. (3d) 7, at paras. 51-53. The Saskatchewan Court of Appeal has also held that s. 515(10)(c) requires that there be “something more”, something in addition to the four factors set out in it: R. v. Blind (1999), 139 C.C.C. (3d) 87 (Sask. C.A.), at para. 16. Although the latter case predated this Court’s decision in Hall, this statement has been reiterated since Hall, including by the Ontario Court of Appeal: LaFramboise, at para. 38. In a judgment subsequent to LaFramboise, the Ontario Court of Appeal found instead that the words “something more” were simply a way to convey the need to use s. 515(10)(c) sparingly: D. (R.), at para. 53. However, it expressed the view that the third ground for detention is not limited to the most heinous of offences and can be invoked even if the community has not experienced the same horror and fear as was the case in Hall.

40    I see two reasons — one based on legislation and the other on the case law — why Canadian appellate courts may have adopted such interpretations.

46    I am of the opinion that some courts have misinterpreted this Court’s decision in Hall. First of all, the Court’s comments must be viewed in the context of that case and analyzed in light of the case’s very specific circumstances: the crime was an extremely horrific one. It was therefore natural for the Court to take this into account when applying s. 515(10)(c) Cr.C. The Court’s description of the crime as horrific, heinous and unexplained was simply an observation, a description of the facts considered by the Court in its analysis of s. 515(10)(c) Cr.C. It cannot be read as imposing conditions or prerequisites.

47    In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide justices in their analysis under s. 515(10)(c). Apart from the fact that the provision itself does not even refer to such a criterion, I consider the concept ambiguous and confusing. What is meant by an “unexplainable” crime? Is it a crime against a random victim? A crime that could be committed only by a person who is not rational? An especially horrific crime?

48    Moreover, many crimes may be “explainable” in one way or another; for example, it may be that the assailant was provoked by the victim or that he or she had a mental illness or was intoxicated. From this perspective, the “unexplainable” crime criterion is of little assistance.

49    The application of a criterion based on the notion of an “unexplainable” crime could also lead to undesirable conclusions. Crimes that are truly heinous and horrific might not satisfy it. Such a criterion could therefore give the public the impression that justices are “justifying” certain crimes, that is, crimes that are “explainable”. Although this Court used the words “unexplained and unexplainable” in Hall in referring to the murder at issue in that case, its decision was based, first and foremost, on the brutal and heinous nature of the crime, the strong evidence tying the accused to the crime and the fact that people in the community were afraid: para. 25. In any event, the drift in the case law since Hall and the reasons I have stated demonstrate the need to limit recourse to such a criterion. As much as possible, it would also be wise for justices hearing applications for release to avoid attaching such a label to the circumstances of the alleged crimes that come before them so as not to give the public the impression that they are “justifying” them.

50    Furthermore, I agree with the appellant that detention may be justified only in rare cases, but that this is simply a consequence of the application of s. 515(10)(c) and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision.

52    I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice. How would such a criterion be assessed? Should justices consider how many cases have been heard (in their jurisdictions, in Canada, in the last year, etc.) and, at the same time, ensure that cases of detention based on s. 515(10)(c) will remain “rare” if they order detention in the cases before them? Should a justice review the cases in which detention has been ordered and determine whether the facts of the case before him or her are the same (or nearly the same) as the facts of those cases? In any event, it seems to me that a “rareness” of circumstances criterion would prompt justices to engage in a comparative exercise and thus to move away from the careful examination of the circumstances of individual cases that the situation requires. In my opinion, a comparative approach such as this could potentially undermine the public’s confidence in the administration of justice.

54    In conclusion, the application of s. 515(10)(c) is not limited to exceptional circumstances, to “unexplainable” crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime, but it must prove — except in the cases provided for in s. 515(6) — that the detention of the accused is justified to maintain confidence in the administration of justice.

 

  • Circumstances Set Out in Section 515(10)(c) Cr.C.

55    Section 515(10)(c) expressly refers to four circumstances that must be considered by a justice in determining whether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each of these circumstances — or factors — and consider their combined effect. This is a balancing exercise that will enable the justice to decide whether detention is justified.

56    It must be kept in mind that, at this stage of criminal proceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution’s case or the possibility of a lengthy term of imprisonment.

 

64    First of all, since I have found that no crime is exempt from the possible application of s. 515(10)(c) Cr.C., it is self-evident that the words “lengthy term of imprisonment” do not refer only to a life sentence.

68    Section 515(10)(c) could not be worded more clearly: it refers to “all the circumstances, including … .” In my opinion, Parliament would have worded this provision differently (although I will not comment on the validity of such a wording) if it had intended a detention order to be automatic where the four listed circumstances weigh in favour of such an order. In fact, Parliament intended the opposite. As the Chief Justice stated in Hall, a justice dealing with an application for detention based on s. 515(10)(c) must consider all the relevant circumstances, but must focus particularly on the factors Parliament has specified: para. 41. The automatic detention argument also seems to be inconsistent with the following statement by the Chief Justice, at para. 41:

 

  • At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. [Emphasis added.]

69    Moreover, the automatic detention argument disregards the fact that the test to be met under s. 515(10)(c) is whether the detention of the accused is necessary to maintain confidence in the administration of justice. The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination. The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.

70    Finally, it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales, at p. 728. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11(e) of the Charter: Pearson, at p. 691. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter (Hall, at para. 13). These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.

 

Meaning of “Public”

72    I should point out that although the French version of s. 515(10)(c) refers to “la confiance du public” (public confidence) — “sa dÈtention est nÈcessaire pour ne pas miner la confiance du public envers l’administration de la justice, compte tenu de toutes les circonstances, notamment les suivantes…” — the word “public” does not actually appear in the provision’s English version. However, this Court has confirmed that detention under this provision is based on the need to maintain public confidence in the administration of justice: Hall, at para. 41. This means that the justice’s balancing of all the circumstances under s. 515(10)(c) must always be guided by the perspective of the “public”.

73    In Mordue, the Ontario Court of Appeal provided an interesting analysis of the relationship between “public confidence” for the purposes of s. 515(10)(c) and the “safety of the public” factor set out in s. 515(10)(b):

 

  • Public fear and concern about safety, while relevant, are not the exclusive considerations in assessing the public’s confidence in the administration of justice. The effect of the accused’s release on confidence in the administration of justice must be considered more broadly.

 

  • Limiting the analysis of confidence in the administration of justice to the public’s safety concerns results in the tertiary ground amounting to little more than a recapitulation of the secondary ground… .

 

  • Here, the bail judge placed decisive weight on the quality of the respondent’s bail arrangements. By doing so, he erred by not considering whether the tertiary ground established a separate and distinct basis for denying bail. Having quite appropriately considered the level of public concern about safety in this case, the bail judge erred by not going on to consider the effect the release of the respondent would have more broadly on the public confidence in the administration of justice. [Emphasis added; paras. 23-25.]

74    In Hall, this Court explained that the “public” in question consists of reasonable members of the community who are properly informed about “the philosophy of the legislative provisions, Charter values and the actual circumstances of the case”: para. 41, quoting R. v. Nguyen (1997), 119 C.C.C. (3d) 269 (B.C.C.A.), at para. 18.

77   Although the “public interest” ground was subsequently held to be unconstitutional, these passages remain helpful in underscoring the fact that the word “public” used in the context of the new s. 515(10)(c) does not mean Canadians who tend to react impulsively. This being said, although it is true that the public in question consists of reasonable, well-informed persons, and not overly emotional members of the community, it seems to me that some of the decisions have rendered the word “public” meaningless in this context. Parliament made an express choice by using the word “public” in the French version of s. 515(10)(c) in requiring that the courts take confidence in the administration of justice into account in deciding whether an accused should be detained pending trial. It referred not to legal experts or judges, but to the “public”. Meaning must therefore be given to this legislative choice. Public confidence cannot be equated with the confidence of legal experts in the administration of justice. The Canadian public — even its most knowledgeable members — cannot be expected to have the same level of legal knowledge as judges or lawyers. That would distort the meaning of the word “public”. It would also disregard the purpose of this provision, which is to maintain public confidence in the administration of justice.

79    Thus, a reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter. Such a person is undoubtedly aware of the importance of the presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by our Constitution. He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and is aware of the adage that “justice delayed is justice denied”: R. v. Trout, 2006 MBCA 96, 205 Man. R. (2d) 277, at para. 15. Finally, a reasonable member of the public knows that a criminal offence requires proof of culpable intent (mens rea) and that the purpose of certain defences is to show the absence of such intent. A well-known example of this type of defence is the mental disorder defence. The person contemplated by s. 515(10)(c) Cr.C. therefore understands that such a defence, once established, will enable an accused to avoid criminal responsibility. However, it would be going too far to expect the person in question to master all the subtleties of complex defences, especially where there is overwhelming evidence of the crime, the circumstances of the crime are heinous and the accused admits committing it.

80    In short, the person in question in s. 515(10)(c) Cr.C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons.

82    Canadians may in fact think they are very well informed, but that is unfortunately not always the case. Moreover, people can also make their reactions known much more quickly, more effectively and on a wider scale than in the past, in particular through the social media mentioned above, which are conducive to chain reactions. The courts must therefore be careful not to yield to purely emotional public reactions or reactions that may be based on inadequate knowledge of the real circumstances of a case.

83    However, the courts must also be sensitive to the perceptions of people who are reasonable and well informed. This enables the courts to act both as watchdogs against mob justice and as guardians of public confidence in our justice system. It would therefore be dangerous, inappropriate and wrong for judges to base their decisions on media reports that are in no way representative of a well-informed public. Indeed, the Quebec Court of Appeal recognized this risk in its recent decision in R. v. Turcotte, 2014 QCCA 2190:

 

  • [TRANSLATION] The press clippings show how risky it is to rely on this mode of proof. They contain several different opinions that vary in the degree to which they are balanced, objective, moderate or superficial. Many of them contain inaccurate facts or do not mention the essential facts. Most of them say nothing about the legal principles that must be applied in making release decisions. Certain opinions stir up anger and distort the debate. Few accurately report the facts and correctly state the applicable principles. On the whole, it must be acknowledged that they do not satisfy the reasonable person test defined in the case law. [para. 68 (CanLII)]

86    In short, there is not just one way to undermine public confidence in the administration of justice. It may be undermined not only if a justice declines to order the interim detention of an accused in circumstances that justify detention, but also if a justice orders detention where such a result is not justified.

 

  • Conclusion on the Application of Section 515(10)(c) C.

87    I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

 

  • Section 515(10)(c) C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
  • Section 515(10)(c) C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
  • The four circumstances listed in s. 515(10)(c) C. are not exhaustive.
  • A court must not order detention automatically even where the four listed circumstances support such a result.
  • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
  • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
  • No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
  • This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
  • To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
  • This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

88    In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.

89    Having completed the interpretation of s. 515(10)(c) Cr.C., I will now consider the power of review of superior court judges, which enables them to vary release or detention orders made under s. 515(10)(a), (b) or (c) Cr.C.

 

164    Accordingly, the four circumstances set out in s. 515(10)(c) Cr.C. strongly support the detention of the respondent.

167    I believe that a reasonable member of the public who, although not a legal expert, is nonetheless properly informed about the philosophy underlying the legislative provisions, Charter values and the actual circumstances of the case would not understand why the respondent should not remain in custody pending his trial. Such members of the public are not people who would allow themselves to be guided by their emotions and to be swayed by the mob or by incomplete or distorted information. In the face of such a brutal attack that was committed by several people in the middle of the night against a bus driver, a person who was serving the community, and that had serious consequences for the victim’s health and integrity and was captured on a videotape that left no doubt as to the respondent’s active participation in the assault, I believe that the confidence in our justice system of a reasonable member of our society would be undermined if the interim detention of the respondent were not ordered.

 

 

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