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When a defendant has been denied bail: The SCC in R. v. Myers

When a individual is denied bail after a bail hearing or remains in custody waiting the outcome of their legal proceedings, are there any protections to ensure that this person does not languish in jail? Section 525 of the Criminal Code stipulates that when in custody, an accused person is entitled to have their detention reviewed every 90 days. However, over the years, there has been conflicting cases about what this actually means. What is the proper approach to conducting a 90-day detention bail review? Within the last weeks, the Supreme Court of Canada released R. v. Myers, where it specially addressed this question.

Despite the fact that the appellant in Myers had been sentenced and released by the time the Court heard the appeal, given the conflicting caselaw, the Court decided the case to provide the correct approach when conducting a 90-day review.

The Court reiterated the cardinal rule of bail: pre-trial release should be the norm, detention must be the exception. That release should be favoured at the earliest reasonable opportunity and on the least onerous conditions is the governing principle.

Under that framework, the Court recognized that the purpose of s.525 hearing is to prevent accused persons from languishing in pre-trial custody and to be a safeguard for those individuals from remaining in custody too long. It is to ensure ensure a prompt legal proceeding. S.525 gives responsibility to the reviewing judge to consider whether the continued detention of the accused is justified.

The Court further outlined the correct approach when s.525 is engaged:

1. It is the responsibility of the jailer to apply for a detention review hearing immediately upon the expiration of 90 days;

2. Next the court must fix a date for the review of the accused's detention at the earliest opportunity;

3. The reviewing judge may refer to transcripts, exhibits and reasons from the previous bail hearings when conducting the hearing;

4. Both parties may make submissions on the basis of any additioanl credible or trustworthy information which is relevant or material to the analysis and which may not be before the reviewing judge at the time.

5. The reviewing judge must decide: whether the continued detention of the accused in custody is justified under the bail provisions.

S.525 triggers an automatic procedure with mandatory obligations on the jailer and the Court to make the application and fix the date for a hearing. When determining whether the continued detention is justified, the Court identified some factors that the reviewing judge may consider: any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention and the rationale offered for the original detention order.

The Court also noted important guidelines. Firstly, the Court held that if the accused has not had a bail hearing by the time the s.525 hearing takes place, it is for the reviewing judge to hold a bail hearing. The Court also, interestingly, described a residual discretion on the part of the reviewing judge, where a person's detention continues, to taking steps to try and expedite the trial or related proceedings. Whether reviewing judges will choose to exercise this discretion and how this power will manifest itself in s.525 hearings remains to be seen. In the end, it will require some persistence on the part of an accused person who remains in custody to ensure this discretion is not a hollow promise.

While an outline of the correct approach is useful for s.525 hearings going forward, the Court's rejection for a condition precedent or threshold criteria before a s.525 hearing can be held is equally as important. In some previous cases, courts have held that s.525 hearings are for those accused where there has been unreasonable delay, and that this was a precondition for a detention review. The Supreme Court of Canada explained that to require such a precondition is an error of law. The length and impact of the delay on the accused person is a factor to be considered by the reviewing judge when determining whether detention is justified; it is not to be a precondition to have a s.525 hearing 

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When a defendant has been denied bail: The SCC in R. v. Myers | Bayne Sellar Ertel Carter