R. v. St-Cloud, 2015 SCC 27 (Criminal law — Interim release — Grounds justifying detention)

Appeal from a decision of the Quebec Superior Court (Martin J.), 2013 QCCS 5021, allowing an application under s. 520 of the Criminal Code for review of a detention order.

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 (cCr.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 (7:0): The appeal should be allowed and the detention order restored.

The ground set out in s. 515(10)(c) of the Criminal Code, that is, that the detention of the accused “is necessary to maintain confidence in the administration of justice”, is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused. It is not a residual ground for detention that applies only where the first two grounds for detention provided for in s. 515(10)(a) and (b) are not satisfied. The scope of s. 515(10)(c) has been unduly restricted by the courts in some cases; this provision must not be interpreted narrowly or applied sparingly. The application of this ground for detention is not limited to exceptional circumstances, to unexplainable crimes, to the most heinous of crimes or to certain classes of crimes. The fact that detention may be justified only in rare cases is but 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. Section 515(10)(c) is worded clearly, and it does not require exceptional or rare circumstances. Nor is the question whether a crime is unexplainable or unexplained a criterion that should guide justices in their analysis under s. 515(10)(c). This concept is ambiguous and confusing. Because many crimes may be explainable in one way or another, the unexplainable crime criterion is of little assistance. The application of a criterion based on the notion of an unexplainable crime could also lead to undesirable conclusions, since crimes that are heinous and horrific might not satisfy it. Such a criterion could give the public the impression that justices are justifying certain crimes, that is, crimes that are explainable.

In determining whether the detention of an accused is necessary to maintain confidence in the administration of justice, the justice must first consider the four circumstances that are expressly referred to in s. 515(10)(c). First of all, the justice must determine the apparent strength of the prosecution’s case. The prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing. The justice must nevertheless consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this circumstance in his or her balancing exercise. The justice must also consider any defence raised by the accused. If there appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of the prosecution’s case.

Next, the justice must determine the objective gravity of the offence in comparison with the other offences in the Criminal Code. This is assessed on the basis of the maximum sentence — and the minimum sentence, if any — provided for in the Criminal Code for the offence.

The justice must then consider the circumstances surrounding the commission of the offence, including whether a firearm was used. Those that might be relevant under s. 515(10)(c) include the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person. If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.

Finally, the fourth circumstance to consider is the fact that the accused is liable for a potentially lengthy term of imprisonment. Although it is not desirable to establish a strict rule regarding the number of years that constitutes a lengthy term of imprisonment, some guidance is required. Because no crime is exempt from the possible application of s. 515(10)(c), the words “lengthy term of imprisonment” do not refer only to a life sentence. Moreover, to determine whether the accused is actually liable for a potentially lengthy term of imprisonment, the justice must consider all the circumstances of the case known at the time of the hearing, as well as the principles for tailoring the applicable sentence. This fourth circumstance is assessed subjectively.

The circumstances listed in s. 515(10)(c) are not exhaustive. The court must consider all the circumstances of each case, paying particular attention to the four listed circumstances. 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. Thus, the court must not order detention automatically even where the four listed circumstances support such a result. Some other circumstances that might be relevant are the personal circumstances of the accused (age, criminal record, physical or mental condition, and membership in a criminal organization), the status of the victim and the impact on society of a crime committed against that person, and the fact that the trial of the accused will be held at a much later date.

The justice’s balancing of all the circumstances under s. 515(10)(c) must always be guided by the perspective of the “public”, that is, of a reasonable person who is properly informed about the philosophy of the legislative provisions, the values of the Canadian Charter of Rights and Freedoms, and the actual circumstances of the case. The person in question is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society’s fundamental values. However, this person is not a legal expert, and, although he or she is aware of the importance of the presumption of innocence and the right to liberty in our society, expects that someone charged with a crime will be tried within a reasonable period of time, and knows that a criminal offence requires proof of culpable intent and that the purpose of certain defences is to show the absence of such intent, the person 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.

Sections 520 and 521 of the Criminal Code do not confer an open‑ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. They establish not a de novo proceeding, but a hybrid remedy. The judge must determine whether it is appropriate to exercise his or her power of review. Exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate.

The four criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759, are relevant to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521. Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. Regarding the first criterion, due diligence, the reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. Such new evidence is not limited to evidence that was unavailable to the accused before the initial hearing. In each case, the reviewing judge will have to determine whether the reason why the accused did not tender such pre‑existing evidence earlier was legitimate and reasonable. As to the second criterion, it will suffice that the evidence be relevant for the purposes of s. 515(10). This criterion will therefore rarely be decisive in the context of an application for review under ss. 520 and 521, since the range of relevant evidence will generally be quite broad. The third criterion — that the evidence must be credible in the sense that it is reasonably capable of belief — must be interpreted in light of the relaxation of the rules of evidence at the bail stage and in particular of s. 518(1)(e) of the Criminal Code, which provides that “the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case”. Finally, the fourth Palmercriterion should be modified as follows: the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c). The new evidence must therefore be significant. If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) as if he or she were the initial decision maker.

It will also be appropriate to intervene if the justice has erred in law or if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.

In this case, the Superior Court judge intervened even though there was no basis for a review, given that there was no change in circumstances and no error of law, and that the initial decision was not clearly inappropriate. When all the relevant circumstances are weighed as required by s. 515(10)(c), the detention of S was necessary to maintain confidence in the administration of justice.

Reasons for decision of the Court delivered by Wagner J.

Neutral Citation : 2015 SCC 27. Court File No. 35626