Section 525 Detention Review (Until December 18, 2019)

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General Principles

See also: Bail 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).[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 [taking person before justice after arrest], or
(ii) where an order that the accused be detained in custody has been made under section 521 [crown-requested bail review] or 524 [procedure relating to breach of conditions], 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) [duty to take a detainee 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 [procedure relating to breach of conditions], 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


Note up: 525(1) and (3)

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]

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".[4]

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."[5]

The section provides "oversight of delays in the trial process even where the defence does not desire a bail review hearing".[6]

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.[7] 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".[8]

Threshold Requirements for a Review

There is no requirement that there be an "unreasonable delay" before a review can take place.[9]

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].[10]

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.[11]

Applicable Offences

The relevant offence must be one other than an offence under 469.[12]

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".[13] Those who "do not contest their initial detention" should not be "punished for doing so" by being deprived of a s. 525 hearing.[14]

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.[15]

Expiration of Time Period

Should the time period lapse without a review of detetion, the detention does not automatically become unlawful.[16]

Failure of the hearing to proceed on the scheduled date does not result in a loss of jurisdiction.[17]

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".[18]

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.[19]

  1. R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 35
  2. R v Gill, 2005 CanLII 22214 (ON SC), [2005] OJ No 2648 (S.C.J.) (QL), per Hill J, at para 3
  3. Gill, ibid., at para 3
  4. Myers, supra, at para 55
  5. 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
  6. R v Sawrenko, 2008 YKSC 27 (CanLII), per Veale J, at para 26
  7. 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. ")
  8. Myers, supra, at para 47
  9. 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
  10. 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)...")
  11. Myers, supra, at para 37
  12. See Absolute Jurisdiction Offences)
    Includes offences such as Homicide
  13. 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.")
  14. 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])
  15. Ex Parte Srebot, 1975 CanLII 1288 (BC CA), per Farris CJ
  16. 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)
  17. R v Gagliardi, 1981 CanLII 341 (BC CA), per Seaton JA, at paras 13 to 16
  18. Myers, supra, at para 21
  19. Myers, supra, at para 36

Procedure

Where the accused is represented by counsel, the hearing may be a "brief formality" or may be waived altogether.[1]

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".[2]

Automatic Scheduling of Hearings

There is no requirement for the detainee to request the hearing to take place.[3] The detainee, informed of their rights and the purpose of the provision, may "opt-out" of the hearing if they wish.[4]

Burden

The onus is upon the same party who had the onus that the initial bail hearing.[5]

Expediting the Trial

Section 525(9) permits the reviewing judge to expediate the trial during the s. 525 hearing.

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.
...
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.

CCC


Note up: 525(9)

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


Note up: 526

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.[6]

Other factors to be considered on a "forward-looking basis" include:[7]

  • "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.[8] 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.[9]

  1. R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 61
  2. Myers, ibid., at para 61
  3. 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.")
  4. 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.")
  5. R v Sarkozi, 2010 BCSC 1410 (CanLII), per Gaul J -- review of conflicting case law on question of burden
  6. R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 59
  7. Myers, supra, at para 60
  8. Myers, supra, at para 60
  9. Myers, supra, at para 60

Default Rules of Procedure

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.
...
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.

CCC


Note up: 525(8)

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]

  1. Vukelich v British Columbia (Director of The Vancouver Pre-Trial Centre), 1993 CanLII 800 (BC CA), per curiam (5:0)
  2. 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.

...
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.

CCC


Note up: 525(2)

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]

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".[2]

Where there has not been an initial bail hearing, the s. 525 detention review should be conducted as if it was a bail hearing.[3]

  1. R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 49
  2. 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.")
  3. 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

See also: Grounds for Release

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


Note up: 515(10)

  1. R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 45
  2. Myers, supra, at paras 45 to 46

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".[1]

The delay to be considered includes delay that has already passed as well as the delay anticipated.[2]

The main consideration is proportionality. This would include:[3]

The judge may consider in the analysis whether either party was responsible for "unreasonable" delay.[4]

  1. R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 50
  2. Myers, supra, at para 50
  3. 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).
  4. Myers, supra, at para 54

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.
...
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.

CCC


Note up: 525(4)

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.
...
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.

CCC


Note up: 525(5), (6) and (7)

See Also