Section 525 Detention Review (Until December 18, 2019): Difference between revisions
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===Evidence=== | |||
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.<ref> | |||
{{supra1|Myers}}{{at|49}} | |||
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==Justification for Detention== | ==Justification for Detention== | ||
{{seealso|Grounds for Release}} | {{seealso|Grounds for Release}} | ||
Revision as of 13:56, 16 July 2019
General Principles
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).[1]
Section 525 states:
- Time for application to judge
525. (1) Where an accused who has been charged with an offence other than an offence listed in section 469 [exclusive jurisdiction offences] 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 [Compelling detainee to appear before a justice], or
- (ii) where an order that the accused be detained in custody has been made under section 521 [Crown-requested bail review] or 524 [review of release on breach], or a decision has been made with respect to a review under section 520 [Accused-requested bail review], 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 [Crown-requested bail review] or 524 [review of release on breach], or a decision has been made with respect to a review under section 520 [Accused-requested bail review], 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.
...
- 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.
...
R.S., 1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90; 1994, c. 44, s. 49; 1997, c. 18, s. 61.
[annotation(s) added]
– CCC
- Purpose
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".[2] It should "facilitate the obtaining of bail and the review of bail applications when originally refused".[3]
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."[4]
The section provides "oversight of delays in the trial process even where the defence does not desire a bail review hearing".[5]
- 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.[6] 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".[7]
- Threshold Requirements for a Review
There is no requirement that there be an "unreasonable delay" before a review can take place.[8]
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].[9]
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. Myers, supra, at para 37 </ref>
- Applicable Offences
The relevant offence must be one other than an offence under 469.[10]
- 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".[11] Those who "do not contest their initial detention" should not be "punished for doing so" by being deprived of a s. 525 hearing.[12]
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.[13]
- Expiration of Time Period
Should the time period lapse without a review of detetion, the detention does not automatically become unlawful.[14]
Failure of the hearing to proceed on the scheduled date does not result in a loss of jurisdiction.[15]
- History
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".[16]
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.[17]
- ↑ R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 35
- ↑
R v Gill, 2005 CanLII 22214 (ON SC), [2005] OJ No 2648 (S.C.J.) (QL), per Hill J, at para 3
- ↑ Gill, ibid., at para 3
- ↑ Fraser Regional Correctional Centre v Canada (Attorney General), [1993] 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)...")
- ↑
See s. 525
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, ibid., at para 39 to 40
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
Procedure
- Automatic Scheduling of Hearings
There is no requirement for the detainee to request the hearing to take place.[1] The detainee, informed of their rights and the purpose of the provision, may "opt-out" of the hearing if they wish.[2]
- Show Cause Procedure Applies
525...
- Provisions applicable to proceedings
(8) The provisions of sections 517 [Order directing matters not to be published for specified period], 518 [Inquiries to be made by justice and evidence during show cause hearing] and 519 [Release of accused] apply with such modifications as the circumstances require in respect of any proceedings under this section.
...
- Burden
The onus is upon the same party who had the onus that the initial bail hearing.[3]
- Early Trial Dates
525...
- 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.
...
- Directions for expediting proceedings
526 Subject to subsection 525(9), a court, judge or justice before which or whom an accused appears pursuant to this Part may give directions for expediting any proceedings in respect of the accused.
R.S., 1985, c. C-46, s. 526; R.S., 1985, c. 27 (1st Supp.), s. 91.
– CCC
- ↑ R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, 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
Timing of Hearing
- "Forthwith"
The meaning of "forthwith" is equivalent to "as soon as practicable". This will depend on the circumstances of each case.[1]
- 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.[2]
- ↑ Vukelich v British Columbia (Director of The Vancouver Pre-Trial Centre), 1993 CanLII 800 (BC CA), per curiam (5:0)
- ↑ R v Ferreira, 1981 CanLII 327 (BC CA), per Taggart JA, at para 6
Notice
525...
- 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.
...
Evidence
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.[1]
- ↑ Myers, supra, at para 49
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".[1] 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).[2]
The justifications enumerated under s. 515(10) consist of:
515...
- Justification for detention in custody
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
- (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
- (b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
- (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
- (i) the apparent strength of the prosecution’s case,
- (ii) the gravity of the offence,
- (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
- (iv) 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.
– CCC
Release
525...
- 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.
Breach of Section 525 Release
- Authority to Arrest on Breach of s. 525 Release Order
525...
- 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.