Section 525 Detention Review
Where a detained accused's trial has been delayed beyond a certain duration, the court must review bail.Section 525 authorizes an automatic review of the terms of detention where the trial has been delayed a period of more than 90 days (for indicatble offences) or 30 days (for summary offences).
Section 525 states:
The purpose of s. 525 is to "is to prevent the accused from languishing for lengthy periods of time in custody and to ensure a prompt trial". It should "facilitate the obtaining of bail and the review of bail applications when originally refused".
It is also meant to be an "independent safeguard function that is particularly important for unrepresented individuals, who may not have had the means, the capacity or the awareness to apply for a s. 520 review".
The is accomplished by requiring "the Court to monitor the continued detention or the accused to ensure that he is not needlessly detained, and to ensure that there is no unreasonable delay in proceeding with the trial."
The section provides "oversight of delays in the trial process even where the defence does not desire a bail review hearing".
- Detention Review vs Bail Review
The purpose of a review application under s. 520 [by accused] or 521 [by crown] is to review a prior order. The purpose of a detention review under s. 525 is a review of the detention itself. Detention review is not, however, a reconducted bail hearing. The reviewing judge must "show respect" for the findings of fact of the initial judge and balance factors "in light of the time that has already elapsed and any other relevant considerations".
- Threshold Requirements for a Review
There is no requirement that there be an "unreasonable delay" before a review can take place.
The jail or prison detaining an accused is required under s. 525(1)(a)(i) to apply to the "judge immediately upon expiration of 90 days" from the day that he was initially taken before a justice under s. 503 [Compelling detainee to appear before a justice].
Under s. 525(1)(a)(ii), where a "new" detention order is made—or where an "old" detention order is renewed—under s. 520 [accused-request review], 521 [crown-request review], or 524 [review of release on breach], the "clock" will recommence from the date that the order is made.
- Applicable Offences
The relevant offence must be one other than an offence under 469.
- Applicable Detainees
The right to a Detention review under s. 525 is available to detainees, including those "who have not had a full bail hearing". Those who "do not contest their initial detention" should not be "punished for doing so" by being deprived of a s. 525 hearing.
Section 525 applies to those ordered detained under s. 515 on any of the three grounds of detention. It does not apply for those granted release but had simply not satisfied the conditions of release.
- Expiration of Time Period
Should the time period lapse without a review of detetion, the detention does not automatically become unlawful.
Failure of the hearing to proceed on the scheduled date does not result in a loss of jurisdiction.
In 1972, s. 525 was introduced in the Bail Reform Act, SC 1970-71-72 c. 37. Its purpose was to "avoid unnecessary pre-trial arrest and detention", ensure the accused "is not unnecessarily held in custody until his trial", "ensure an early trial for those who have been detained in custody pending trial", and "provide statutory guidelines for decision making" to avoid "discretionary injustice".
The amendment to s. 525 made in 1997 introduced reference to s. 520 [accused-requested bail review] in order to remove the possibility that a bail review and detention review can happen in short succession.
- R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 35
R v Gill, 2005 CanLII 22214 (ON SC),  OJ No 2648 (S.C.J.) (QL), per Hill J, at para 3
- Gill, ibid., at para 3
- Myers, supra, at para 55
- Fraser Regional Correctional Centre v Canada (Attorney General),  BCJ No. 2348 (S.C.), 1993 CanLII 354 (BC SC), per Clancy J, at para 4
- R v Sawrenko, 2008 YKSC 27 (CanLII), per Veale J, at para 26
- Myers, supra, at para 47 ("The question in the s. 525 review — whether the continued detention of the accused is justified — is somewhat different in nature than the question at the initial bail hearing or in a review under s. 520 or 521. While ss. 520 and 521 exist for the purpose of reviewing a prior order, a review under s. 525 is more properly characterized as a review of the detention itself. ")
- Myers, supra, at para 47
- Myers, supra, at para 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.") see also at para 32
Myers, supra, at para 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)...")
- Myers, supra, at para 37
See Absolute Jurisdiction Offences)
Includes offences such as Homicide
- Myers, supra, at para 43 ("In my view, there is no principled basis for holding that individuals in this situation [those in custody beyond 90 days without show cause hearing] are not entitled to a hearing under s. 525. In theory, every accused person in custody will have been “taken before a justice under section 503” within the meaning of s. 525(1) and is therefore entitled to a hearing under s. 525.") and at para 62 ("Accused persons who have not had a full bail hearing are nonetheless entitled to one under s. 525.")
- Myers, supra, at para 43 (" I would echo the view that those who, for whatever reason, do not contest their initial detention should not be punished for doing so, by depriving them of the potential benefits of s. 525 hearings, especially where their liberty and constitutional right to a trial within ‘a reasonable time’ is implicated..." [quotation marks removed])
Ex Parte Srebot, 1975 CanLII 1288 (BC CA), per Farris CJ
Vukelich v British Columbia (Director of The Vancouver Pre-Trial Centre), 1993 CanLII 800 (BC CA), per curiam (5:0), at para 39
R v Pomfret, 1990 CanLII 11035 (MB CA), per Huband JA (3:0) cf. Burton v. British Columbia (Director of Surrey Pre-Trial Centre), 1993 CanLII 1438 (BC CA), per Hinds JA (3:0)
R v Gagliardi, 1981 CanLII 341 (BC CA), per Seaton JA, at paras 13 to 16
- Myers, supra, at para 21
- Myers, supra, at para 36
Where the accused is represented by counsel, the hearing may be a "brief formality" or may be waived altogether.
Where the detainee is self-represented "judge must take even greater care to safeguard the liberty of the accused in order to maintain public confidence in the justice system".
- Automatic Scheduling of Hearings
There is no requirement for the detainee to request the hearing to take place. The detainee, informed of their rights and the purpose of the provision, may "opt-out" of the hearing if they wish.
The onus is upon the same party who had the onus that the initial bail hearing.
Expediting the Trial
This discretion should be considered in light of the risk that the case will likely be in violation of the s. 11(b) right against unreasonable delay as well as the risk that the accused may be in a "time-served" position by trial time.
Other factors to be considered on a "forward-looking basis" include:
- "relative complexity of the case",
- "the involvement of co-accused individuals",
- "the completeness of disclosure",
- "problems related to evidence",
- "the presence of any exceptional circumstances" and
- "the typical delay in getting comparable matters to trial in the jurisdiction in question"
The judge may "resolve an outstanding procedural issue" or inquire of counsel of earlier trial dates. However, judges should not be permitted to use s. 525 as a "pretext for judicial micro-management" of a case. "Usually" there should be no inference.
- R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 61
- Myers, ibid., at para 61
- Myers, ibid., at para 44 ("The mandatory obligations to make the application and to fix a date lie with the jailer and the judge, respectively.")
- Myers, ibid., at para 44 ("There may be circumstances in which an accused person, fully informed of his or her rights and the purpose of the provision, will decline what is intended to be an automatic hearing under s. 525. However, the words, the context and the purpose of the provision do not support an interpretation to the effect that s. 525 hearings are an “opt-in” affair.")
- R v Sarkozi, 2010 BCSC 1410 (CanLII), per Gaul J -- review of conflicting case law on question of burden
- R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 59
- Myers, supra, at para 60
- Myers, supra, at para 60
- Myers, supra, at para 60
Timing of Hearing
The meaning of "forthwith" is equivalent to "as soon as practicable". This will depend on the circumstances of each case.
- Calculation of Time Period
Where the accused is subject to multiple detention orders, the 90 day review should take place "forthwith" on the expiration of the later of the detention orders.
Given that s. 525(8) incorporates s. 517, 518, and 519 into the hearing, the Crown may show the "circumstances of the alleged offence" and the judge has "wide discretion" to make enquiries and to receive evidence that is "credible or trustworthy". The judge may also rely on transcripts, exhibits nad reasons given in prior bail hearings or reviews.
Not every case should require the judge to "revisit an initial detention order". In absence of a "basis for judicial intervention", the hearing should not be "protacted and formal".
Where there has not been an initial bail hearing, the s. 525 detention review should be conducted as if it was a bail hearing.
- R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 49
- Myers, ibid., at para 55 ("The need to revisit an initial detention order will not arise in every case, and in the absence of a basis for judicial intervention, there is no need for a s. 525 hearing to become a protracted or formal proceeding.")
- Myers, ibid., at para 56 (Where an initial bail hearing has not been conducted, "the judge is required to conduct the full bail hearing “from the ground up” in accordance with the ladder principle articulated in Antic, taking into account the time the accused has already spent in pre-trial custody. ")
Justification for Detention
The main question for the s. 525 hearing is "whether or not the accused should be released from custody", taking into acount "any unreasonable delay into consideration". The accused should be released if the judge "is not satisfied that the continued detention of the accused in custody is justified" under s. 515(10).
The justifications enumerated under s. 515(10) consist of:
Delay as a Factor
The reviewing judge must consider the amount of time that has passed in addition to the factors set out in s. 515(10). This includes considering whether the delay "has had ... an impact on the appropriateness or proportionality of the detention", especially being sensitive to whether continued detention "could erode public confidence in the administration of justice".
The delay to be considered includes delay that has already passed as well as the delay anticipated.
The main consideration is proportionality. This would include:
The judge may consider in the analysis whether either party was responsible for "unreasonable" delay.
R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 50
- Myers, supra, at para 50
Myers, supra, at paras 51 to 53
- whether the amount of delay runs the risk of exceeding the sentence they would realistically serve if convicted.
- the need to reduce the risk of "induced guilty pleas", which are "profoundly detrimental to the integrity of the criminal justice system".
- the degree to which "detention is necessary to maintain confidence in the administration of justice" in accordance with s. 515(10)(c).
- Myers, supra, at para 54