R. v. Hall, 2002 SCC 64, [2002] 3 SCR 309

R. v. Hall, [2002] 3 S.C.R. 309, 2002 SCC 64

David Scott Hall                                                                                               Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

The Attorney General of Canada, the Attorney General

of Quebec, the Criminal Lawyers’ Association (Ontario)

and the Association des avocats de la défense de Montréal                      Interveners

Indexed as:  R. v. Hall

Neutral citation:  2002 SCC 64.

File No.:  28223.

2002:  April 23; 2002:  October 10.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for ontario

Constitutional law — Charter of Rights  — Right to bail — Presumption of innocence — Vagueness — Whether part of s. 515(10) (c) of Criminal Code  authorizing denial of bail “on any other just cause being shown” infringing presumption of innocence and right “not to be denied reasonable bail without just cause” — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 11(e)  — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10) (c).

Constitutional law — Charter of Rights  — Right to bail — Vagueness —  Whether part of s. 515(10) (c) of Criminal Code  authorizing denial of bail in order “to maintain confidence in the administration of justice” infringing  right “not to be denied reasonable bail without just cause” — Canadian Charter of Rights and Freedoms, s. 11(e)  — Criminal Code, R.S.C. 1985, c. C‑46, s. 515(10) (c).

Constitutional law — Charter of Rights  — Remedy — First part of s. 515(10) (c) of Criminal Code  authorizing denial of bail “on any other just cause being shown” inconsistent with Charter  rights — Second part of s. 515(10)(c) authorizing denial of bail “to maintain confidence in the administration of justice” constitutional — Appropriate remedy — Constitution Act, 1982, s. 52  — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10) (c).

Criminal law — Judicial interim release — Justification for detention in custody — Accused denied bail under s. 515(10) (c) of Criminal Code  in order “to maintain confidence in the administration of justice” — Whether bail judge erred in denying bail on that basis — Whether s. 515(10)(c) of Criminal Code  unconstitutional — Canadian Charter of Rights and Freedoms, s. 11(e)  — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10) (c).

In 1999, a woman’s body was found with 37 wounds to her hands, forearms, shoulder, neck and face.  Her assailant had tried to cut off her head.  The murder caused significant public concern and a general fear that a killer was at large. Based on compelling evidence linking the accused to the crime, he was charged with first degree murder.  He applied for bail.  The bail judge held that  pre-trial detention was not necessary “to ensure . . . attendance in court” nor for the “safety of the public” (s. 515(10) (a) and (b) of the Criminal Code ).  He denied bail, however, under s. 515(10)(c) in order “to maintain confidence in the administration of justice” in view of the highly charged aftermath of the murder, the strong evidence implicating the accused, and the other factors referred to in para. (c).  A superior court judge dismissed the accused’s habeas corpus application challenging the constitutionality of s. 515(10)(c).  The Court of Appeal affirmed the decision.

Held (Iacobucci, Major, Arbour and LeBel JJ. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Bastarache and Binnie JJ.:  Determining the constitutionality of denying bail in order to maintain confidence in the administration of justice requires considering s. 515(10)(c) as a whole.  The portion of s. 515(10)(c) permitting detention “on any other just cause being shown” is unconstitutional.  Because the impugned phrase confers an open‑ended judicial discretion to refuse bail, it is inconsistent with both s. 11( e )  of the Canadian Charter of Rights and Freedoms , which guarantees a right “not to be denied reasonable bail without just cause”, and the presumption of innocence.  It is a fundamental principle of justice that an individual cannot be detained by virtue of a vague legal provision.  Parliament must lay out narrow and precise circumstances in which bail can be denied.  The impugned phrase is not justified under s. 1  of the Charter .  Its generality impels its failure of  the proportionality branch of the Oakes test.  To the extent the phrase is inconsistent with the Charter , it is void.  The next phrase in s. 515(10)(c) (“without limiting the generality of the foregoing”) is also void since it only confirms the generality of the preceding phrase.

The balance of s. 515(10)(c), which authorizes the denial of bail in order “to maintain confidence in the administration of justice”, is valid.  It provides a basis for denying bail not covered by s. 515(10)(a) and (b).  Although the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available because public confidence is essential to the proper functioning of the bail system and the justice system as a whole.

Denial of bail “to maintain confidence in the administration of justice” having regard to the factors set out in s. 515(10)(c) complies with s. 11( e )  of the Charter .  This ground  is narrower and more precise than the old public interest ground which was struck down as vague in 1992 and provides an intelligible standard for debate and for the exercise of discretion.  The means chosen do not go further than necessary to achieve Parliament’s purpose of maintaining  public confidence in the bail system and the justice system as whole.  Parliament has hedged the provision with important safeguards:  a judge can only deny bail if satisfied that, in view of the four specified factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice.  The provision is not overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community.

The appropriate remedy in this case is to sever the phrase “on any other just cause being shown, and without limiting the generality of the foregoing,”.  The balance of s. 515(10)(c) can stand alone as a functioning whole without doing damage to Parliament’s intention.

The bail judge in this case considered the relevant factors and held that it was necessary to deny bail in order to maintain public confidence in the justice system. There is no error in his reasoning.

Per Iacobucci, Major, Arbour and LeBel JJ. (dissenting):  At the heart of a free and democratic society is the liberty of its subjects and our justice system must minimize unwarranted denials of liberty.  In the criminal law context, this freedom is embodied generally in the right to be presumed innocent until proven guilty and specifically in the right to bail.  Under s. 11( e )  of the Charter , “[a]ny person charged with an offence has the right . . . not to be denied reasonable bail without just cause”.  The reference to “just cause” requires that bail is to be denied only in a narrow set of circumstances and where necessary to promote the proper functioning of the bail system.  It cannot be denied for a purpose extraneous to the bail system. Section 515(10)(c) must thus be scrutinized in light of these constitutional requirements.

Fear that a bail judge will be unable to protect the public without s. 515(10)(c) is without reasonable foundation.  There is no evidence that the bail system was lacking in any way before the introduction of the provision in 1997, five years after the “public interest” ground for denying bail had been struck down as unconstitutionally vague.  The Crown could not raise even a convincing hypothetical scenario that would require pre‑trial detention for reasons not contemplated by s. 515(10)(a) or (b). The wording of s. 515(10)(b) is broad enough to encompass threats to “the protection or safety of the public” other than from an accused and including public unrest and vigilantism.

Section 515(10)(c) must be assessed as a whole.  Its structure belies piecemeal analysis.  To ignore the words at the heart of the provision and to focus only on the single listed example disregards the required analysis.  For the purposes of argument, however, the two components of s. 515(10)(c) are assessed separately.  Even if these components are considered independently, neither can withstand constitutional scrutiny.

It is impossible to hold that the phrase “any other just cause” provides for the denial of bail under a narrow set of circumstances.  The phrase is deliberately open-ended and is more vague than the old “public interest” ground for denying bail because it fails to specify even a particular basis upon which bail may be denied.  This open‑ended judicial discretion to deny bail does not promote the proper functioning of the bail system.  The broader the terms under which bail may be denied, the more the  presumption of innocence — the raison d’être of the bail system — is compromised.

Nor does the “confidence in the administration of justice” component of s. 515(10)(c) provide a sufficiently precise standard.  The specific factors listed in s. 515(10)(c) provide little more than a facade of precision.  Whether the phrase “maintain confidence in the administration of justice” has been given a workable standard by courts and/or Parliament in other contexts, in the context of s. 515(10)(c) it is impermissibly vague because of the failure to establish a plausible and valid ground for denying bail that would serve the proper administration of the bail system and that is not already covered under the more specific grounds in s. 515(10)(a) and (b).  Without such an independent ground, the listed factors, by themselves, point to a denial of bail on the mere two‑fold basis of a serious crime and a strong prima facie case; however, it does not promote the proper functioning of the bail system to detain an accused on this basis alone, when the accused is not a flight risk and does not pose a threat to public safety.  Section 515(10)(c) essentially revives the old “public interest” ground and invokes similarly vague notions of the public image of the criminal justice system.  It is ripe for misuse and allows irrational public fears to be elevated above an accused’s Charter  rights.  In this case, the bail judge erred in considering the subjective fears of the public after determining there was no risk of flight nor any threat to the public.  The reaction of the public may assist in determining the threat posed by the accused’s released under the public safety ground, but that is not what was decided in this case.  The problem with s. 515(10)(c) is that it allows the subjective fears of the public and ill‑informed emotional impulses extraneous to the bail system to form a sole basis for denying bail.

Section 515(10)(c) cannot be saved under s. 1  of the Charter .  First, the respondent did not identify a pressing and substantial objective furthered by the provision.  Section 515(10)(c) is difficult to justify as “pressing and substantial”,  especially given the respondent’s failure to identify particular circumstances where s. 515(10)(c) would validly operate.  In enacting s. 515(10)(c), Parliament did not appear motivated by evidence of deficiencies in the bail system.  No provision similar to s. 515(10)(c) exists in comparable legal systems.  Second, s. 515(10)(c) fails the proportionality stage of the Oakes test.  It authorizes detention for reasons not in furtherance of, and with no rational connection to, the proper functioning of the bail system.  The broad discretion granted in s. 515(10)(c) cannot be viewed as minimally impairing the accused’s s. 11(e) right and permits detentions in a much broader array of circumstances than necessary.  There is no proportionality between the deleterious and the salutary effects of s. 515(10)(c).  Pre‑trial detention has concrete and profound deleterious effects on the accused that outweigh any potential salutary effects that might exist.

The only available remedy is to strike down s. 515(10)(c) in its entirety.  Although the section may encompass instances where bail could be denied without offending s. 11(e), this Court cannot sufficiently narrow the scope of that section without seriously intruding into the legislative sphere.  In this regard, even if the administration of justice portion of the provision were constitutional, s. 515(10)(c) could not be read down to include only this portion.  The second component of s. 515(10)(c) is but an example of denying bail “on any other just cause”.  To convert a single example of an explicitly open‑ended rule into the rule itself substantially changes the significance of the provision and contravenes Parliament’s clear intention not to limit the generality of “any other just cause”.

Cases Cited

By McLachlin C.J.

Applied:  R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Oakes, [1986] 1 S.C.R. 103; referred to:  R. v. Gottfriedson (1906), 10 C.C.C. 239; Re N. (1945), 87 C.C.C. 377; R. v. MacDougal (1999), 138 C.C.C. (3d) 38; R. v. Dakin, [1989] O.J. No. 1348 (QL); R. v. Rondeau (1996), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Smith, [2001] A.J. No. 501 (QL), 2001 ABPC 76; R. v. Coles, [1999] B.C.J. No. 3107 (QL); R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Nguyen (1997), 119 C.C.C. (3d) 269; Schachter v. Canada, [1992] 2 S.C.R. 679.

By Iacobucci J. (dissenting)

R. v. Rose (1898), 18 Cox C.C. 717; R. v. Phillips (1947), 32 Cr. App.  R. 47; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Rondeau (1996), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155; R. v. MacDougal (1999), 138 C.C.C. (3d) 38; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Re Powers and The Queen (1972), 9 C.C.C. (2d) 533; R. v. Dakin, [1989] O.J. No. 1348 (QL); R. v. Nguyen (1997), 119 C.C.C. (3d) 269; R. v. Oakes, [1986] 1 S.C.R. 103; S v. Dlamini, 1999 (4) SA 623; R. v. Rezaie (1996), 112 C.C.C. (3d) 97; Schachter v. Canada, [1992] 2 S.C.R. 679; Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Mills, [1999] 3 S.C.R. 668.

Statutes and Regulations Cited

Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30.

Bail Reform Act, S.C. 1970-71-72, c. 37, s. 5.

Canadian Charter of Rights and Freedoms , ss. 1 , 11( e ) .

Constitution Act, 1982 , s. 52 .

Criminal Code, R.S.C. 1970, c. C-34, s. 457(7)(a), (b).

Criminal Code , R.S.C. 1985, c. C-46 , ss. 486(1) , 515(10)  [am. 1997, c. 18, s. 59], 522.

Criminal Code, S.C. 1953-54, c. 51, s. 463(1) [am. 1960-61, c. 43, s. 16], (3).

Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 59.

Authors Cited

Canada. Canadian Committee on Corrections.  Toward Unity: Criminal Justice and Corrections.  Ottawa:  Queen’s Printer, 1969.

Canada.  National Council of Welfare.  Justice and the Poor:  A National Council of Welfare Publication.  Ottawa:  The Council, 2000.

Canada.  Senate.  Standing Senate Committee on Legal and Constitutional Affairs.  Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs,  Issue No. 60, 2nd Sess., 35th Parl., April 21, 1997, p. 60:30.

Friedland, Martin L.  Detention before Trial:  A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts.  Toronto:  University of Toronto Press, 1965.

Ontario.  Commission on Systemic Racism in the Ontario Criminal Justice System.  Report of the Commission on Systemic Racism in the Ontario Criminal Justice System.  Toronto:  The Commission, 1995.

Packer, Herbert L.  The Limits of the Criminal Sanction.  Stanford:  Stanford University Press, 1968.

Stuart, Don.  “Hall:  The Ontario Court of Appeal Ducks Broader Issues in Upholding the New Public Interest Bail Provision” (2000), 35 C.R. (5th) 219.

Trotter, Gary T.  The Law of Bail in Canada, 2nd ed.  Scarborough, Ont.:  Carswell, 1999.

APPEAL from a judgment of the Ontario Court of Appeal (2000), 136 O.A.C. 20, 147 C.C.C. (3d) 279, 35 C.R. (5th) 201, 77 C.R.R. (2d) 1, 50 O.R. (3d) 257, [2000] O.J. No. 3188 (QL), affirming a judgment of the Superior Court of Justice, [1999] O.J. No. 4565 (QL), dismissing the accused’s application for habeas corpus and relief and upholding the constitutionality of s. 515(10) (c) of the Criminal Code .   Appeal dismissed, Iacobucci, Major, Arbour and LeBel JJ. dissenting.

John Norris, for the appellant.

Eric H. Siebenmorgen, for the respondent.

Peter DeFreitas and Robert W. Hubbard, for the intervener the Attorney General of Canada.

Jacques Blais and Juli Drolet, for the intervener the Attorney General of Quebec.

Louis P. Strezos, for the intervener the Criminal Lawyers’ Association (Ontario).

Christian Desrosiers and Martin Vauclair, for the intervener the Association des avocats de la défense de Montréal.

The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Bastarache and Binnie JJ. was delivered by

The Chief Justice—

I.  Introduction

1                                   On May 3, 1999, Peggy Jo Barkley-Dube’s body was found on the kitchen floor of her home in the city of Sault Ste. Marie.  The cause of death was massive hemorrhage from approximately 37 separate slash wounds to her hands, forearms, shoulder, neck and face.  Her neck had been cut to the vertebrae and medical evidence indicated that the assailant intended to cut her head off. 

2                                   On June 4, 1999, the appellant, the victim’s husband’s second cousin, was charged with first degree murder.  Compelling evidence linked him to the crime.  Areas in the victim’s home contained traces of the appellant’s blood. Footprint impressions containing the victim’s blood and matching the type of running shoes worn by the appellant were found in her dining room and kitchen. The same footprint impressions had been left by the appellant in his parents’ home.  A surveillance video from a convenience store showed the appellant on the night of the homicide wearing shoes matching those seized from his parents’ home.  The appellant admitted to police that he had been in the convenience store that night but denied that he had been wearing the shoes.

3                                   The murder received much media attention and caused significant public concern.  A police officer testified that there was a general sense of fear that there was a killer at large, and the victim’s father testified that his wife and three other daughters were very fearful.

4                                   The appellant applied for bail.  The Criminal Code , R.S.C. 1985, c. C-46, s. 515(10)  provides that bail may be denied in three situations:

(a)  where the detention is necessary to ensure [the accused’s] 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 substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c)  on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.  [Emphasis added.]

5                                   Bolan J. held that the evidence did not support denying bail on the first two grounds.   He was satisfied that the accused’s community and family ties, plus the ample security proposed, would ensure that the accused would appear for his trial should he be released on bail.  He was also satisfied that there was no reason to think the accused would commit an offence while on release and that bail conditions could be imposed which would eliminate this risk.  He found, however, that the accused’s detention was necessary to maintain confidence in the administration of justice in view of the highly charged aftermath of the murder, the strong evidence implicating the accused, and the other factors referred to in s. 515(10)(c).

6                                   Fear prevailed in the community.  As Bolan J. put it:

This City, like any other small cities, looks to its courts for protection.  The feelings of the community have been expressed by certain witnesses.  Some people are afraid, and some people have voiced their concerns.  This is a factor which I will accordingly take into consideration when I assess the third ground.

7                                   Moreover, the offence was grievous:

There is no higher or worse crime in this country than first degree murder.  It is the pinnacle of evil in our society.  It is so evil that a conviction carries a life sentence with no parole eligibility for 25 years, subject to judicial review after 15 years.  Insofar as the circumstances of the case are concerned, they can only be described as horrific.

8                                   Finally, the Crown’s case was strong.  Bolan J. stated:

This . . . forensic evidence makes the Crown’s case very compelling.  We have the evidence of an expert, someone who made a scientific study, who says that the print in the victim’s blood came from a pair of shoes owned by the accused and found in the accused’s father’s residence.  Putting it another way, the shoe fits the print.

9                                   Taking all these factors into account, Bolan J. concluded:

I am satisfied that the accused has showed good cause for release under grounds one and two, however, under the third ground his detention is necessary in order to maintain confidence in the administration of justice.

10                               The denial of bail was upheld on superior court review (Caputo J.) and in the  Ontario Court of Appeal (per Osborne A.C.J.).  Both courts upheld s. 515(10)(c) as constitutional and supported Bolan J.’s order.  The appellant was convicted and was sentenced for second degree murder on November 10, 2000.  However, the issue raised by his bail application continues to be important, if not for him, for others charged with offences and for the Canadian public.

11                               The issue in this case is whether Bolan J. erred in denying bail on the basis that this was necessary “to maintain confidence in the administration of justice”. The appellant argues that the provision of the Criminal Code  on which the order was based is unconstitutional on the ground that it violates the presumption of innocence and the right not to be denied reasonable bail except for “just cause” guaranteed by the Canadian Charter of Rights and Freedoms .  Emphasizing the opening reference to “other just cause”, the appellant asserts that the third ground is unnecessary and represents an attempt to revive the old public interest ground for denying bail which was held unconstitutional on the ground that it constituted a “standardless sweep”: R. v. Pearson, [1992] 3 S.C.R. 665, and R. v. Morales, [1992] 3 S.C.R. 711.  

12                               Any bail provision that confers an open-ended judicial discretion to refuse bail is unconstitutional, and it is a fundamental principle of justice that an individual cannot be detained by virtue of a vague legal provision.  For these reasons, I agree that the opening phrase of s. 515(10)(c), read as conferring a broad discretion to deny bail for “just cause”, is unconstitutional.  However, the balance of s. 515(10)(c), which permits denial of bail where necessary to maintain confidence in the administration of justice, plays a vital role in preserving the bail system and the good administration of justice, and is neither unduly vague nor overbroad. 

II.  Analysis

1.  Legislative Background

13                               Section 11( e )  of the Charter  provides that “[a]ny person charged with an offence has the right . . . not to be denied reasonable bail without just cause”.  The right conferred is “a basic entitlement to be granted reasonable bail unless there is just cause to do otherwise”:  Pearson, supra, at p. 691.  This entitlement rests on the presumption that an accused person is innocent until found guilty at trial.  However, s. 11(e) also recognizes that, notwithstanding the presumption of innocence,“just cause” may exist for denying liberty to an accused person pending trial.

14                               What is “just cause” for denying bail?  To understand this, we must go back to the history of bail in Canada.  In 1869, the Federal Government enacted legislation making bail discretionary for all offences: see An Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30.  Bail was therefore left to the discretion of the judge.  Although the primary determinant for denying bail was the need to compel the accused’s attendance, courts also considered other factors such as the nature of the offence, the severity of the penalty, the evidence against the accused, and the character of the accused: see, for example, R. v. Gottfriedson (1906), 10 C.C.C. 239 (B.C. Co. Ct.); Re N. (1945), 87 C.C.C. 377 (P.E.I.S.C.). 

15                               In 1972 the law of bail was recodified: Bail Reform Act, S.C. 1970-71-72 , c. 37.  The Act identified two branches for refusing bail: (1) where the accused’s detention was necessary to ensure his attendance in Court; or (2) where detention was “necessary in the public interest or for the protection or safety of the public” against the accused re-offending or interfering with the administration of justice.  The use of “or” in the second branch led to the view that there were in effect three grounds for denying bail: (1) ensuring appearance at trial; (2) protection against criminal offences pending trial; and (3) the “public interest”.  These grounds were originally enacted as s. 457(7) (a) and (b) of the Criminal Code , and later became s. 515(10)(a) and (b). 

16                               In 1992, this Court first considered the application of s. 11( e )  of the Charter  to the law of bail in the cases of Pearson and Morales, supra.  In Pearson, Lamer C.J., for the majority, held that s. 11(e) contained two distinct elements: (1) the right to “reasonable bail” in terms of quantum of any monetary component and other applicable restrictions; and (2) the right not to be denied bail without “just cause”.  He interpreted the term “just cause” as meaning that bail could only be denied (1) in a narrow set of circumstances, where (2) denial was necessary to promote the proper functioning of the bail system.

17                               In Morales, supra, the Court considered the constitutionality of the reverse onus provisions in s. 515(6)(a) and (d),  narcotics provisions of the Criminal Code , as well as the validity of s. 515(10)(b).  The Court unanimously upheld the reverse onus provisions, as well as the portion of s. 515(10)(b) related to an accused further offending while on bail.  However, the majority struck down the portion of s. 515(10)(b) that authorized pre-trial detention if it was in the “public interest”, on the ground that it was vague, imprecise, and authorized a  “standardless sweep” that would permit a “court [to] order imprisonment whenever it sees fit” (p. 732).

18                               Five years after the “public interest” provision for denying bail was struck down, Parliament replaced it with s. 515(10)(c) which, after citing that bail could be denied “on any other just cause being shown”, permits a judge to deny bail where this is necessary to maintain confidence in the justice system, having regard to all the circumstances of the case, and in particular to four criteria.  Parliament took to heart the Court’s criticism in Morales that the “public interest” ground was too vague and wanted to replace it with a provision giving more specific guidance.  The record states: 

As a result of representations made by a number of jurisdictions, we have attempted to substitute the public interest heading with a more precise set of criteria which would permit a judge to consider detention on more specific criteria.  We think that we have accomplished that task and that judges will be able to make informed decisions.  What we are proposing is neither too vague nor too imprecise. [Emphasis added.]

(F. Bobiasz, testifying for the Department of Justice before the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 60, 2nd Sess., 35th Parl., April 21, 1997, at p. 60:30)

2.  The Scope of the Analysis

19                               Before considering the arguments, it is necessary to determine whether the constitutionality of the entirety of s. 515(10)(c) should be determined, or whether the analysis can be confined to the portion of para. (c) dealing with denial of bail to maintain confidence in the administration of justice.  The Court of Appeal took the view that the bail judge proceeded under the latter portion, making it unnecessary to decide whether the broad opening phrase “on any other just cause being shown” was unconstitutional.

20                               Read grammatically in its ordinary sense, s. 515(10)(c) suggests that Parliament intended two things.  First, to grant a broad discretion to deny bail for “any other just cause”.  Second, to single out a particular case in which Parliament felt denial of bail might be appropriate — where detention is necessary to maintain confidence in the administration of justice.

21                               In my view, we should not decide the constitutionality of the second part of para. (c) and leave the first unconsidered.  First, although Bolan J. focused on maintaining confidence in the administration of justice, he arguably based his decision on the whole of s. 515(10)(c).  Second, it is difficult to see how the first part could constitutionally stand if severed from the remainder, since on its face it would constitute the open-ended discretion and standardless sweep ruled unconstitutional in Pearson and Morales, supra.  There is therefore no reason to separate the two portions and leave the opening phrase for another day.  Finally, appeals on this provision are rare given the transitory nature of bail and the constitutional questions place the ambit of the entire provision before us; these factors suggest that we should consider the constitutionality of s. 515(10)(c) as a whole.  I therefore propose to consider the constitutionality of s. 515(10)(c) as a whole.

3.  Constitutionality of Bail Denial for “Any Other Just Cause”

22                               The first phrase of s. 515(10)(c) which permits denial of bail “on any other just cause being shown” is unconstitutional.  Parliament cannot confer a broad discretion on judges to deny bail, but must lay out narrow and precise circumstances in which bail can be denied: Pearson and Morales, supra.  This phrase does not specify any particular basis upon which bail could be denied.  The denial of bail “on any other just cause” violates the requirements enunciated in Morales, supra, and therefore is inconsistent with the presumption of innocence and s. 11( e )  of the Charter .  Even assuming a pressing and substantial legislative objective for the phrase “on any other just cause being shown”, the generality of the phrase impels its failure on the proportionality branch of the Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103).  Section 52  of the Constitution Act,1982 , provides that a law is void to the extent it is inconsistent with the Charter .  It follows that this phrase fails.  The next phrase in the provision, “without limiting the generality of the foregoing”, is also void, since it serves only to confirm the generality of the phrase permitting a judge to deny bail “on any other just cause”.

23                               However, this does not mean that all of s. 515(10)(c) is unconstitutional.  The loss of the above phrases leaves intact the balance of s. 515(10)(c), which is capable of standing alone grammatically and in terms of Parliament’s intention.  Whatever the fate of the broad initial discretion para. (c) seems to convey, Parliament clearly intended to permit bail to be denied where necessary to maintain confidence in the administration of  justice, having regard to the four specified factors.  This leaves the question of whether this latter part of s. 515(10)(c), considered on its own, is unconstitutional.

4.      Constitutionality of the Provision for Denying Bail Where Necessary to Maintain   Confidence in the Administration of Justice

(a)  The Function of this Provision

24                               Underlying much of the accused’s argument is the suggestion that the first two grounds for denying bail suffice and that a third ground serves only to permit the denial of bail for vague and unspecified reasons.  Accepting this argument, Iacobucci J. concludes, at para. 86, that “the fear that a situation may arise where the bail judge is unable to provide for the protection of the public without relying on the residual ground is without reasonable foundation”.

25                               Yet it seems to me that the facts of this case, as well as the facts in such cases as R. v. MacDougal (1999), 138 C.C.C. (3d) 38 (B.C.C.A.), and the pre-Morales case of R. v. Dakin, [1989] O.J. No. 1348 (QL) (C.A.), offer convincing proof that in some circumstances it may be necessary to the proper functioning of the bail system and, more broadly of the justice system, to deny bail even where there is no risk the accused will not attend trial or may re-offend or interfere with the administration of justice. Bolan J., on strong and cogent evidence, concluded that bail could not be denied on either of these grounds.  But he also found that detention was necessary to maintain confidence in the administration of justice. The crime was heinous and unexplained.  The evidence tying the accused to the crime was very strong.  People in the community were afraid.  As Proulx J.A., speaking of a similarly inexplicable and brutal murder stated in R. v. Rondeau (1996), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155 (C.A.), at p. 480 C.C.C., [translation] “[t]he more a crime like the present one is unexplained and unexplainable, the more worrisome bail becomes for society”.  The provision at issue serves an important purpose — to maintain confidence in the administration of justice in circumstances such as these.

26                               Therefore, Parliament provided for denial of bail where paras. (a) and (b) of s. 515(10) are not met but the judge, viewing the situation objectively through the lens of the four factors stipulated by Parliament, has decided that there is “just cause” for refusing bail.  To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the public’s confidence in the administration of justice.  Where justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter.  When the public’s confidence has reasonably been called into question, dangers such as public unrest and vigilantism may emerge.

27                               Public confidence is essential to the proper functioning of the bail system and the justice system as a whole: see Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689. Indeed, public confidence and the integrity of the rule of law are inextricably intertwined.  As Hall J.A. stated in MacDougal, supra, at p. 48:

To sustain the rule of law, a core value of our society, it is necessary to maintain public respect for the law and the courts.  A law that is not broadly acceptable to most members of society will usually fall into desuetude: witness the unhappy prohibition experiment in the United States.  Courts must be careful not to pander to public opinion or to take account of only the overly excitable, but I believe that to fail to have regard to the provisions of s. 515(10)(c) in the relatively rare cases where it can properly be invoked would tend to work against maintaining broad public confidence in the way justice is administered in this country. [Emphasis added.]

28                               My colleague Iacobucci J. acknowledges these arguments, but dismisses them for two reasons.  First, he suggests at para. 83 that s. 515(10)(b) — the second ground — “is broad enough to encompass any type of threat to ‘the protection or safety of the public’”.  Although the initial part of para. (b) speaks generally of “detention . . . necessary for the protection or safety of the public”, the remainder of the paragraph and the jurisprudence on the second ground see it as directed to whether the accused is likely to commit crimes while on bail or is otherwise likely to interfere with the proper administration of justice: see for example Morales, supra; Rondeau, supra; R. v. Smith, [2001] A.J. No. 501 (QL), 2001 ABPC 76, and R. v. Coles, [1999] B.C.J. No. 3107 (QL) (Prov. Ct.).  To extend the second ground to general public protection is in effect to concede the ground the Crown contends for, but without the qualifying language and factors Parliament has set out in s. 515(10)(c).  Second, my colleague states at para. 85 that “[e]ven if it were possible to imagine rare and isolated situations where it would be justifiable to deny bail for reasons other than those set out in paras. (a) and (b), we are not here dealing with such narrow specific grounds, but instead with a broad, open-ended provision”.  With respect, it seems to me that we are indeed dealing with such narrow and specific grounds — the narrow facts of this appeal and the specific words of para. (c) that permit bail to be denied where denial is necessary to maintain confidence in the administration of justice having regard to the four factors specified by Parliament.

29                               The appellant argues that this Court in Morales and Pearson emphasized the first two grounds for bail denial, suggesting that other grounds must be seen as suspect.  However, Morales, supra, made clear that the grounds for bail denial are not frozen.  Indeed, such a suggestion runs counter to common sense and law.  Parliament may make any law for bail denial it wishes, provided the law meets the constitutional requirements  of the Charter .

30                               Bail denial to maintain confidence in the administration of justice is not a mere  “catch-all” for cases where the first two grounds have failed.  It represents a separate and distinct basis for bail denial not covered by the other two categories.  The same facts may be relevant to all three heads.  For example, an accused’s implication in a terrorist ring or organized drug trafficking might be relevant to whether he is likely to appear at trial, whether he is likely to commit further offences or interfere with the administration of justice, and whether his detention is necessary to maintain confidence in the justice system.  But that does not negate the distinctiveness of the three grounds.

31                               I conclude that a provision that allows bail to be denied on the basis that the accused’s detention is required to maintain confidence in the administration of justice is neither superfluous nor unjustified.  It serves a very real need to permit a bail judge to detain an accused pending trial for the purpose of maintaining the public’s confidence if the circumstances of the case so warrant.  Without public confidence, the bail system and the justice system generally stand compromised.  While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available.

(b)  Is the Ground for Denying Bail Unconstitutionally Vague or Overbroad?

32                               This brings us to the main issue — whether denying bail “to maintain confidence in the administration of justice” having regard to the factors set out in s. 515(10)(c), complies with s. 11( e )  of the Charter , which provides that bail may be denied only for “just cause”.

33                               The appellant says that maintaining confidence in the administration of justice is vague and overbroad, and amounts to substituting a new phrase for the ground of “public interest” which the Court held unconstitutional in Morales, supra.  However, the ground of maintaining confidence in the administration of justice as articulated in para. (c) is much narrower and more precise than the old public interest ground.  The term “public interest” is imprecise and “has not been given a constant or settled meaning by the courts”: Morales, supra, at p. 732.  The articulated ground of maintaining confidence in the administration of justice, by contrast, relies on concepts held to be justiciable and  offers considerable precision.

34                               The test for impermissible vagueness is whether the law so lacks precision that it fails to give sufficient guidance for legal debate: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 638-40.  The test sets a high threshold: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 68.  Laws are of necessity general statements that must cover a variety of situations.  A degree of generality is therefore essential, and is not to be confused with vagueness, which occurs when the law is so imprecise that it does not permit legal debate about its meaning and application.  As noted in Morales, supra, at p. 729:  “To require absolute precision would be to create an impossible constitutional standard”.

35                               The phrase “proper administration of justice” was held to provide an intelligible standard and hence not overbroad in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, in the context of preserving openness in the administration of justice.  In that case, La Forest J. defined the phrase as including a discretionary power of the courts to control their own process.  At para. 59, he states:

The phrase “administration of justice” appears throughout legislation in Canada, including the Charter .  Thus, “proper administration of justice”, which of necessity has been the subject of judicial interpretation, provides the judiciary with a workable standard. 

36                               If the phrase “administration of justice”  is sufficiently precise, it must follow that the phrase “necessary in order to maintain confidence in the administration of justice”, amplified by a direction to consider four specified factors, is not unconstitutionally vague.   The inquiry is narrowed to the reasonable community perception of the necessity of denying bail to maintain confidence in the administration of justice, judicially determined through the objective lens of “all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment”.  Even where a standard viewed alone is impermissibly vague, such factors may save it: Nova Scotia Pharmaceutical Society, supra.

37                               The appellant argues that the factors set out in s. 515(10)(c) cannot be sufficient because cases under the old “public interest” criterion had identified similar factors, which were insufficient to save the public interest grounds for the denial of bail in Morales, supra.  However, reference to factors in cases cannot be equated to a legislative direction to consider specific factors.  Moreover, “public interest” is a broader and vaguer ground than “maintain confidence in the administration of justice”.  The latter is but one aspect of the former.

38                               The result is that the ground based on maintaining confidence in the administration of justice is more narrowly defined than the “public interest” standard in Morales, supra.  The operative concept is identified and criteria delineate a basis for the exercise of the discretion.  The direction to consider all the circumstances does not render a provision unconstitutionally vague. In my opinion, the phrase does not result in a “standardless sweep”.  Like the Court of Appeal of Ontario and the Court of Appeal of British Columbia in MacDougal, supra, I am satisfied that the stated standard meets the test of providing an intelligible standard for debate. 

39                               This leaves the argument that the ground for denial of bail is overbroad, or of whether the means chosen by the state go further than necessary to accomplish its objective: see R. v. Heywood, [1994] 3 S.C.R. 761, at pp. 792-93.  The meaning of a law may be plain, yet the law may be overbroad: Heywood, supra, at pp. 792-93. It is important that a bail provision not trench more than required on the accused’s liberty and the presumption of innocence.  Denial of bail must be confined to a “narrow set of circumstances” related to the proper functioning of the bail system: Pearson and Morales, supra.

40                               Section 515(10)(c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice.  As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public’s confidence in the administration of justice. Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10)(c)  —  the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment.  Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.

41                               This, then, is Parliament’s purpose: to maintain public confidence in the bail system and the justice system as a whole.  The question is whether the means it has chosen go further than necessary to achieve that purpose.  In my view, they do not.  Parliament has hedged this provision for bail with important safeguards.  The judge must be satisfied that detention is not only advisable but necessary.  The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice.  Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified.  The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified.  At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.  In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), 119 C.C.C. (3d) 269, the reasonable person making this assessment must be one properly informed about “the philosophy of the legislative provisions, Charter  values and the actual circumstances of the case” (p. 274).  For these reasons, the provision does not authorize a “standardless sweep” nor confer open-ended judicial discretion.  Rather, it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community.  In sum, it is not overbroad.

5.  Application

42                               The bail judge, Bolan J., noting the high level of concern in the community, and considering the relevant factors including the strength of the Crown’s case and the gravity and horrific nature of the crime, held that it was necessary to deny bail to the appellant in order to maintain public confidence in the justice system.   I see no error in Bolan J.’s reasoning.

6.  Remedy

43                               Since the introduction of the Charter , courts have engaged in a constitutional dialogue with Parliament.  This case is an excellent example of such dialogue.  Parliament enacted legislation that permitted a judge to detain an accused person where detention was “necessary in the public interest” .  This Court considered this language and determined that the portion of s. 515(10)(b) that authorized pre-trial detention for reasons of public interest was unconstitutional.  At p. 742 of Morales, supra, Lamer C.J. severed the “public interest” ground from the rest of s. 515(10)(b) because the provision could still function as a whole.  After considering this Court’s reasons in Pearson and Morales, supra,  Parliament replaced the “public interest” ground with new language.

44                               Section 515(10)(c) contains two separate phrases.  The first phrase confers a broad discretion on  judges to deny bail for “any other just cause”.  As stated above, this phrase is inconsistent with the presumption of innocence and s. 11( e )  of the Charter . As such, it is void under s. 52  of the Constitution Act, 1982 .  However, the second phrase, which provides an example of “any other just cause”, is capable of standing alone without doing damage to Parliament’s intention: see Schachter v. Canada, [1992] 2 S.C.R. 679.  As such, the “just cause” component of s. 515(10)(c) can be severed and the balance of the provision, which states that judges can deny bail in order “to maintain confidence in the administration of justice”, can stand as a functioning whole.

III.  Conclusion

45                               I would dismiss the appeal.  The phrase in s. 515(10)(c) that permits the denial of bail  “on any other just cause being shown and, without limiting the generality of the foregoing,” is unconstitutional and should be severed from the paragraph.  The portion of the paragraph that permits a judge to deny bail “where the detention is necessary in order to maintain confidence in the administration of justice” is constitutionally valid.

46                               I would, therefore, answer the constitutional questions as follows:

1.    Does s. 515(10) (c) of the Criminal Code , R.S.C. 1985, c. C-46 , infringe s. 11( e )  of the Canadian Charter of Rights and Freedoms ?

Answer: Yes, in part.  The phrase “on any other just cause being shown and, without limiting the generality of the foregoing” infringes s. 11( e )  of the Canadian Charter of Rights and Freedoms .

2.    If Question 1 is answered affirmatively, is the infringement demonstrably justified in a free and democratic society pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

Answer:      No.

The reasons of Iacobucci, Major, Arbour and LeBel JJ. were delivered by

Iacobucci J.  (dissenting) —

I.  Introduction

47                               At the heart of a free and democratic society is the liberty of its subjects.  Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

48                               In the context of the criminal law, this fundamental freedom is embodied generally in the right to be presumed innocent until proven guilty, and further in the specific right to bail.  When bail is denied to an individual who is merely accused of a criminal offence, the presumption of innocence is necessarily infringed.  This is the context of this appeal, one in which the “golden thread” that runs through our system of criminal law is placed in jeopardy.  And this is the context in which laws authorizing pre-trial detention must  be scrutinized. 

49                               Section 11( e )  of the Canadian Charter of Rights and Freedoms  calls particularly on courts, as guardians of liberty, to ensure that pre-trial release remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstances where the fundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societal interest.

50                               The duty to protect individual rights lies at the core of the judiciary’s role, a role which takes on increased significance in the criminal law where the vast resources of the state and very often the weight of public opinion are stacked against the individual accused.  Courts must not, therefore, take lightly their constitutional responsibility to scrutinize the manner by which the legislature has authorized the detention of the accused in the absence of a conviction.

51                               In my view, when the impugned s. 515(10) (c) of the Criminal Code , R.S.C. 1985, c. C-46 , is held up to the appropriate constitutional standard, a standard which takes into account the fundamental importance of the presumption of innocence, it is impossible to justify the sweeping discretion to abrogate the liberty of the accused that this section affords.  Unlike the Chief Justice, whose reasons I have had the benefit of reading, I conclude that s. 515(10)(c) cannot withstand Charter  scrutiny and must be struck down in its entirety.  As I discuss in these reasons, this conclusion is dictated by principle, precedent, and policy.

52                               I will begin my analysis with a brief overview of the background of the modern bail system, and then move on to discuss the interpretation that this Court has given to s. 11( e )  of the Charter .  Finally, I assess s. 515(10)(c) in light of these constitutional standards, concluding that the provision is contrary to s. 11(e) and cannot be saved by s. 1  of the Charter .

II.  Issues 

53                               The issues in this case are in the form of the following constitutional questions:

1.                 Does s. 515(10) (c) of the Criminal Code , R.S.C. 1985, c. C-46 , infringe s. 11( e )  of the Canadian Charter of Rights and Freedoms ?

2.                 If Question 1 is answered affirmatively, is the infringement demonstrably justified in a free and democratic society pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

III.  The Concept of Bail

54                               The right to bail is enshrined in s. 11( e )  of the Charter  which stipulates that bail may only be denied where there is “just cause” to do so.  In order to give meaning to this rather amorphous phrase, one must examine the historical underpinnings of bail, as well as some of the more recent developments which have helped to formulate the modern Canadian bail system.

55                               Originally, at common law, the sole reason for denying bail was to ensure the attendance of the accused at trial: R. v. Rose (1898), 18 Cox C.C. 717 (Cr. Cas. Res.); G. T. Trotter, The Law of Bail in Canada (2nd ed. 1999), at p. 6.  In R. v. Phillips (1947), 32 Cr. App. R. 47, the English Court of Appeal recognized that bail could also be denied where there was a high probability that the accused would commit an offence while on bail.  As a result, there came to be two separate and distinct common law grounds for denying bail: to ensure the accused’s attendance in court, and to protect the public.

56                               Before 1972, the law of bail was a highly discretionary matter.  It was presumed that an accused person would be detained prior to trial unless he or she applied for bail under  s. 463(1) of the Criminal Code, S.C. 1953-54, c. 51 (as amended by S.C. 1960-61, c. 43, s. 16), and s. 463(3) gave virtually no guidance to the bail judge charged with determining whether to detain an accused committed for trial:

463. . . .

(3) The judge or magistrate may, upon production of any material that he considers necessary upon the application, order that the accused be admitted to bail . . . .

57                               In the 1960’s, several studies of the Canadian bail system were undertaken.  These included the groundbreaking work of Professor M. L. Friedland, Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (1965).  In this empirical study of the bail system as it was implemented in the Toronto Magistrates’ Courts, Professor Friedland made several important observations and corresponding recommendations.  After summarizing his factual findings, he concluded, at p. 172, that:

The factual material set out in the previous chapters is sufficient to demonstrate that the release practices before trial which exist for cases tried in the Toronto Magistrates’ Courts operate in an ineffective, inequitable, and inconsistent manner.

More specifically, he stated at p. 175:

[T]he bail system as it operates in the Toronto Magistrates’ Courts falls far short of any reasonable standard.  Little, if any thought is given to the purposes to be accomplished by the granting or denying of bail.  The present system is unfortunately often subverted into a form of punishment before trial.

58                               Of particular significance for the purposes of this appeal was his discovery of a clear relationship between custody pending trial and the trial itself.  Not only was custody likely a factor in inducing guilty pleas, but also, those who were not in custody during trial were more likely to be acquitted than those who were in custody, and, if convicted, were more likely to receive lighter sentences.  These alarming findings caused him to conclude that “[t]he prejudicial effects on the accused of custody pending trial demand that the system which determines whether or not he will be released pending trial be a well-considered one” (p. 175). 

59                               Although it is generally accepted and acknowledged that the denial of bail has a detrimental effect on the presumption of innocence and liberty rights of the accused, it is less often recognized that pre-trial detention can also have serious practical effects on the accused’s ability to raise a defence, and can thereby have a second, more indirect, prejudicial effect on the accused’s liberty rights and the criminal justice system as a whole.  H. L. Packer, in his classic work on the subject, The Limits of the Criminal Sanction (1968), points out some of the difficulties faced by an accused who is detained before trial (at pp. 214-15):

An accused person who is confined pending trial is greatly impeded in the preparation of his defense.  He needs to be able to confer on a free and unrestricted basis with his attorney, something that is notoriously hard to do in custody.  He may be the most likely person to interview and track down witnesses in his own behalf — something he cannot do if he’s in jail.  His earning capacity is cut off; he may lose his job; his family may suffer extreme economic hardship.  And all these things may happen before he is found to be guilty.  Furthermore, the economic and other deprivations sustained as a result of pre-trial confinement all act as coercive measures that inhibit the accused person’s will to resist.  He is rendered more likely to plead guilty, and, as a result, to waive the various safeguards against unjust conviction that the system provides.  When this happens on a large scale, the adversary system as a whole suffers because its vitality depends on effective challenge.

These prejudicial effects that pre-trial detention can have on the accused’s ability to raise a defence appear to be borne out by the findings of Professor Friedland, noted above.  Moreover, since Professor Friedland’s study, the connection between pre-trial detention and conviction has been pointed out by several authors and studies: see Trotter, supra, at pp. 31-50; Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995), at pp. 113-16; Justice and the Poor: A National Council of Welfare Publication (2000), at pp. 28-50.

60                               In light of his findings, one of Professor Friedland’s main recommendations was to curtail the discretionary aspect of bail decisions (at p. 186):

It is important that the practice [of denying bail for reasons other than ensuring attendance in court], if permissible, be carefully controlled because of the harmful consequences of custody and the possible misuse of inarticulated, vague criteria.  This study does not argue that all persons should be released pending trial.  It does, however, argue strenuously for definite, clear, and unequivocal criteria to be used in denying bail. 

This study of how bail provisions are actually applied at the ground level should serve as a warning on the dangers inherent in allowing for broad discretion in denying bail.

61                               In 1969, the Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969) (the “Ouimet Report”) also recommended significant changes to the bail system.  In particular, the Ouimet Report recommended, at p. 99, that bail be denied only under the following conditions:

Pre-trial detention, in the view of the Committee, can only be justified where it is necessary in the public interest:

(i)  To ensure the appearance of the accused at his trial.

(ii) To protect the public pending the trial of the accused.

Pre-trial detention is justified where it is necessary to prevent criminal misconduct by the accused pending his trial.  The offences sought to be prevented may be offences similar to those in respect of which the accused has been arrested, or may be offences related to his trial such as:

(a) The destruction of evidence or the tampering with witnesses.

(b) Otherwise attempting to pervert the course of justice.

                                                                   . . .

In accordance with the views which the Committee has expressed in Chapter 2, society is not warranted in inflicting greater harm on a person — although his guilt is ultimately established — than is absolutely necessary for the protection of society. [Emphasis in original.]

Like Professor Friedland, the Committee also recommended that pre-trial detention be governed by specific criteria (Ouimet Report, at pp. 108-9).

IV.  The Legislative Treatment of Bail

62                               Parliament responded to these calls for reform in 1972 with the Bail Reform Act, S.C. 1970-71-72, c. 37.  The Act replaced the presumption of pre-trial detention with the presumption of release based on an undertaking to attend at court for trial.  The Act also eliminated the inflexible all-or-nothing approach by giving the bail judge the ability to grant release subject to conditions.  Most importantly, the Act adhered to the suggestions made in the studies cited above by stipulating specific criteria for denying pre-trial bail.  Thus, s. 515(10)  of the Criminal Code , R.S.C. 1985, c. C-46 , read as follows:

515. . . .

(10) For the purposes of this section, the detention of an accused in custody is justified only on either of the following grounds:

(a) on the primary ground that his detention is necessary to ensure his attendance in court in order to be dealt with according to law; and

(b) on the secondary ground (the applicability of which shall be determined only in the event that and after it is determined that his detention is not justified on the primary ground referred to in paragraph (a)) that his detention is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or  interfere with the administration of justice.

It is interesting to note that, while the Ouimet Report recommended that bail only be denied where it was in the public interest to do so, the Report defined the public interest in terms of the existing common law criteria for denying bail, namely, (1) ensuring the accused’s attendance in court, and/or (2) preventing criminal misconduct by the accused.  In contrast, the Bail Reform Act appeared to establish “public interest” as an independent ground for denying bail, in addition to the traditional common law criteria.

63                               In 1992, in R. v. Morales, [1992] 3 S.C.R. 711, which I discuss in more detail below, this Court struck down the “public interest” component of s. 515(10)(b) as unconstitutionally vague and thus contrary to s. 11( e )  of the Charter  and unjustifiable under s. 1. 

64                               After a five-year delay, Parliament responded to Morales by amending s. 515(10) under the Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 59, to read as follows:

515. . . .

(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, 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) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

The amendment involved two significant changes.  First, Parliament removed the language indicating an ordering of the grounds, with the result that bail may now be denied independently under any of paras. (a), (b) or (c).  In addition, para. (c) of s. 515(10), the paragraph at issue in this appeal, was added as a third ground authorizing pre-trial detention.

65                               In my view, this brief overview of the recent history of the law of bail in Canada demonstrates the full circle that Parliament has taken with respect to the legislative bases for denying bail.  Section 515(10)(c) currently operates as a broad residual category which allows for the denial of bail for reasons other than ensuring the attendance of the accused in court and preventing criminal activity.  As I will discuss, the vague moniker of “any other just cause” represents a Parliamentary regression to a situation similar to that which existed prior to the enactment of the Bail Reform Act in 1972, when bail was a matter of fairly unrestricted judicial discretion.  It was this state of affairs which prompted the studies and reforms referred to above, and which should provide a valuable lesson to Parliament of the dangers of this discretionary approach.  However, the advent of the Charter , which brought with it the constitutionalization of the presumption of innocence and the right to bail, makes it this Court’s duty to oversee the legislative activity in this area, and ensure its adherence to these fundamental rights.

V.  The Constitutional Interpretation of Section 11(e): Pearson and Morales

66                               The scope of s. 11(e) was considered by this Court for the first time in Morales and its companion case R. v. Pearson, [1992] 3 S.C.R. 665, and these cases laid the groundwork for interpreting s. 11(e) by setting out the constitutional principles underlying this right.  Morales is particularly instructive for the purposes of this appeal, as it dealt specifically with s. 515(10). 

67                               In Pearson, Lamer C.J., speaking for the majority of the Court, held that ss. 11(d) and 11(e) were parallel rights in that they served to define the procedural content of the substantive s. 7 right to be presumed innocent at the trial and bail stages of the criminal process, respectively.  As well, he held that the “just cause” component of s. 11(e) serves as a constitutional standard under which bail is granted or denied, whereas the “reasonable bail” portion governed the terms of bail.

68                               With respect to the proper context in which to discuss the scope of s. 11(e), Lamer C.J. made the following general observations, at p. 691:

Most of the current bail provisions in the Criminal Code  were enacted in the Bail Reform Act, S.C. 1970-71-72, c. 37.  The Bail Reform Act established a basic entitlement to bail.  Bail must be granted unless pre-trial detention is justified by the prosecution. . . . Section 11(e) creates a basic entitlement to be granted reasonable bail unless there is just cause to do otherwise.

. . . In general, a person charged with an offence and produced before a justice, unless he or she pleads guilty, is to be released on an undertaking without conditions.  However, the Crown is to be given a reasonable opportunity to show cause why either detention or some other order should be made. . . .

69                               The most important constitutional legacy of these cases for the purposes of this appeal is the structure and definition which was given to the term “just cause”.  Lamer C.J. held that the “just cause” requirement entailed the following two conditions: (1) that bail could only be denied in a narrow set of circumstances, and (2) that a denial of bail must be necessary to promote the proper functioning of the bail system, and cannot be undertaken for any purpose extraneous to the bail system: Pearson, supra, at p. 693; Morales, supra, at p. 726.  He noted that the first condition meant that “[t]he basic entitlement of s. 11(e) cannot be denied in a broad or sweeping exception”:  Pearson, at p. 694.

70                               The holding of the majority of this Court in Pearson and Morales was not an act of ordinary statutory interpretation.  In those cases, the Court was called upon to shape the content of a Charter  right, and it has spoken clearly in setting out the fundamental constitutional elements of s. 11(e).  As a result, the two requirements which must be met in order for bail to be denied, namely (1) a narrow set of circumstances, and (2) promoting the proper functioning of the bail system, have become the constitutional guideposts of the phrase “just cause” in s. 11( e )  of the Charter .  As such, the mandate of the Court in this case is to scrutinize s. 515(10)(c) in light of these two constitutional requirements.

71                               In Morales, as mentioned above, the provision in question was s. 515(10)(b).  The constitutionality of both the “public interest” and “public safety” components of para. (b) was raised, and the Court dealt with each ground separately. 

72                               Given the “narrow set of circumstances” requirement, Lamer C.J. observed that “there cannot be just cause for the denial of bail where the statutory criteria for denial are vague and imprecise” (p. 727), or permit a “standardless sweep” (p. 728) and he noted the important role played by the vagueness principle in the context of bail (at p. 728):

In my view the principles of fundamental justice preclude a standardless sweep in any provision which authorizes imprisonment.  This is all the more so under a constitutional guarantee not to be denied bail without just cause as set out in s. 11(e).  Since pre-trial detention is extraordinary in our system of criminal justice, vagueness in defining the terms of pre-trial detention may be even more invidious than is vagueness in defining an offence. [Emphasis added.]

73                               Lamer C.J. held further, at p. 729, that the fact that a vague provision authorizes judicial discretion as opposed to arbitrary law enforcement was irrelevant:

A standardless sweep does not become acceptable simply because it results from the whims of judges and justices of the peace rather than the whims of law enforcement officials.  Cloaking whims in judicial robes is not sufficient to satisfy the principles of fundamental justice.

74                               In order to satisfy the vagueness test, the provision in question had to be “capable of being given a constant and settled meaning by the courts” (p. 730).  Lamer C.J. canvassed cases which had denied bail under the “public interest” ground, and, at pp. 731-32, concluded that this term did not delineate a sufficiently precise standard:

In my view, these authorities do not establish any “workable meaning” for the term “public interest”.  On the contrary, these authorities demonstrate the open-ended nature of the term. . . . In my view, these authorities demonstrate that the term “public interest” has not been given a constant or settled meaning by the courts.  The term provides no guidance for legal debate.  The term authorizes a standardless sweep, as the court can order imprisonment whenever it sees fit.  According to Nova Scotia Pharmaceutical Society, supra, at p. 642, such unfettered discretion violates the doctrine of vagueness:

What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled.  Once more, an impermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements.

As currently defined by the courts, the term “public interest” is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.

Nor would it be possible in my view to give the term “public interest” a constant or settled meaning.  The term gives the courts unrestricted latitude to define any circumstances as sufficient to justify pre-trial detention.  The term creates no criteria to define these circumstances.  No amount of judicial interpretation of the term “public interest” would be capable of rendering it a provision which gives any guidance for legal debate.

75                               After concluding that the “public interest” ground was impermissibly vague, and therefore in breach of s. 11(e), Lamer C.J. found that it could not be justified under s. 1 for much the same reason.  The first stage of the test was satisfied, given the extremely important two-fold objective of s. 515(10)(b): to prevent those who have been arrested from committing criminal offences and from interfering with the administration of justice.  However, Lamer C.J. found that none of the three components of the proportionality test was met.  First, there was no rational connection between the measure and the objectives because the provision was too vague to provide any means to determine which accused would be most likely to commit offences or interfere with the administration of justice.  Second, the vagueness of the provision merged with overbreadth in that it permitted far more pre-trial detention than required to meet the objectives.  Finally, the authorization of excessive pre-trial detention implied that proportionality was also lacking.

76                               In contrast, the “public safety” component of s. 515(10)(b) was found to be constitutionally valid.  First, Lamer C.J. found at p. 737, that the ground was sufficiently narrow for the following reasons:

I am satisfied that the scope of the public safety component of s. 515(10)(b) is sufficiently narrow to satisfy the first requirement under s. 11(e).  Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail.  Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”.  Moreover, detention is justified only when it is “necessary” for public safety.  It is not justified where detention would merely be convenient or advantageous.

The “public safety” ground was also found to be necessary to promote the proper functioning of the bail system, because the system does not function properly if an accused interferes with the administration of justice or commits an offence that endangers the public while on bail.  As such, if there is substantial likelihood that the accused will tamper with the administration of justice, or commit an offence if released, it furthers the objectives of the bail system to deny bail (p. 737).

77                               Gonthier J. dissented from the conclusion of Lamer C.J., finding that the “public interest” ground, although broad, was not impermissibly vague and thus did not infringe s. 11( e )  of the Charter .

78                               In Pearson, the Court examined the constitutional validity of s. 515(6)(d), a reverse onus provision which, for certain offences involving the distribution of narcotics, ordered the accused to be detained subject to the accused showing cause why detention was not justified.  Again speaking for the majority of the Court, Lamer C.J. held that s. 515(6)(d) did not offend s. 11( e )  of the Charter .  First, given the small number of offences to which the provision applied, and the opportunity for the accused to demonstrate that detention is not justified, the section applied only to a narrow set of circumstances.  In addition, the specific characteristics of the offences listed under s. 515(6)(d) justified differential treatment in the bail process.  Lamer C.J. noted that drug trafficking usually involved a sophisticated commercial setting which created huge incentives for an offender to continue criminal behaviour even after arrest and release on bail, as well as a marked danger that the accused would abscond.  In light of these risks, he found s. 515(6)(d) to be necessary to promote the proper functioning of the bail system, and not to be undertaken for any purpose extraneous to the bail system.

79                               McLachlin J. (as she then was) dissented from the conclusion of Lamer C.J.  It was her position that, since the narcotics offences to which s. 515(6)(d) referred covered both large-scale and small-scale traffickers, it was overly broad.  In the view of McLachlin J., the risks identified by Lamer C.J. and used to justify the purpose of s. 515(6)(d) did not apply to “small-time” traffickers.  Thus, the provision could result in the denial of bail to these individuals in the absence of just cause.  With respect to s. 1, although she recognized the importance of the objectives of avoiding repeat offences and absconding, she found s. 515(6)(d) to go further than necessary by including both large-scale and small-scale traffickers within its ambit.  Accordingly, McLachlin J. would have held the impugned provision to be unconstitutional.

VI.  The Provision in Dispute — Section 515(10)(c)

80                               This appeal deals only with the final paragraph of s. 515(10):

(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

A.  The Legislative Context

81                               After the “public interest” component of s. 515(10)(b) was struck down by this Court in Morales, pre-trial detention could be justified only under one of the two traditional grounds, namely, ensuring the accused’s attendance in court or protecting the safety of the public.  As already mentioned, s. 515(10) was eventually amended to add the tertiary ground in dispute here.  The other major change was the removal of the primary/secondary structure of the provision.  As a result, bail can now be denied under any one of paras. (a), (b), or (c) of s. 515(10) without consideration of the other paragraphs. 

82                               As noted above, Parliament waited five years before reacting to Morales by amending s. 515(10), and it is significant that the respondent was unable to point to any evidence that during these five years the pre-trial detention scheme was lacking in any way.  Indeed, the only justification for the creation of the tertiary ground that the respondent was able to suggest was that “courts should have the exceptional power to deny bail in limited circumstances not covered by the existing legislation” (respondent’s factum, at para. 21).  However, in the absence of evidence of any deficiencies in the bail system during the five years after the Morales decision, the argument that bail judges require this residual category loses much of its force.  Although the lack of an empirical foundation for the provision says nothing, in and of itself, as to its validity under s. 11( e )  of the Charter  (but it does arise in the s. 1 analysis), it is important to bear in mind the context underlying this appeal, namely, that for five years there was no indication that the bail system was in need of a tertiary ground in addition to the two traditional grounds for denying bail.

83                               On a more theoretical level, in oral argument, counsel were hard pressed to raise even a convincing hypothetical scenario which called for pre-trial detention for reasons other than those listed in paras. (a) and (b).  On the facts of this case, given that the accused was charged with a seemingly inexplicable and brutal murder, the bail judge might have been justified in denying bail under the second ground on the basis that, without any apparent motive for the crime, there was a substantial risk of re-offence.  As pointed out by Proulx J.A. in R. v. Rondeau (1996), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155 (C.A.), at p. 480 C.C.C., in the context of a similarly inexplicable and brutal murder, [translation] “[t]he more a crime like the present one is unexplained and unexplainable, the more worrisome bail becomes for society”.  Counsel also referred to a hypothetical scenario where granting bail in respect of a highly publicized crime could cause public unrest or rioting.  Again, however, in my view, the wording of s. 515(10)(b) is broad enough to encompass any type of threat to “the protection or safety of the public”, not just a threat from the accused.  The provision states that detention is justified where it is necessary for the protection or safety of the public, having regard to all the circumstances.  This includes, but is clearly not limited to, a consideration of the substantial likelihood that the accused will re-offend or interfere with the administration of justice. 

84                               While the cases cited by the Chief Justice in this regard focus on whether the accused is likely to commit crimes while on bail or otherwise interfere with the proper administration of justice, none of the cases foreclose the possibility of considering the “protection or safety of the public” independently of the accused’s likelihood of re-offending or interfering with the administration of justice.  In fact, the Quebec Court of Appeal’s statement in Rondeau, supra, at p. 478 C.C.C., that [translation] “[t]he serious risk of recidivism targeted by Parliament in s. 515(10) is only one of the considerations pertinent to the resolution of . . . whether or not detention is necessary for the protection or safety of the public” (emphasis added), strongly suggests that the section is not limited to an analysis of whether the accused is likely to commit crimes or interfere with the administration of justice while released on bail.  The reason why the jurisprudence cited by the Chief Justice centres on an examination of factors aimed at determining whether the accused will re-offend or otherwise impede the administration of justice is obvious: in the vast majority of cases, the threat to “the protection or safety of the public” will arise directly from the pre-trial release of the accused, rather than from more remote fears of “public unrest and vigilantism”.  That is not to say, however, that s. 515(10)(b) is not sufficiently broad to cover these latter scenarios.

85                               Even if it were possible to imagine rare and isolated situations where it would be justifiable to deny bail for reasons other than those set out in paras. (a) and (b), we are not here dealing with such narrow specific grounds, but instead with a broad, open-ended provision.  It should also be remembered that bail is not an all-or-nothing proposition.  The bail judge has the discretion to grant bail under particular terms and conditions which are tailored to meet the facts of an individual case.  This flexibility goes a long way to narrow the situations where detention is required.  Finally, as pointed out in Rondeau, where an accused is charged with murder, s. 515(10) is read in light of s. 522 such that the burden of proof is shifted onto the accused to show cause why pre-trial detention is not necessary with respect to the grounds listed under s. 515(10). 

86                               As a result of the above factors, in my view, the fear that a situation may arise where the bail judge is unable to provide for the protection of the public without relying on the residual ground is without reasonable foundation.

B.  Section 515(10)(c) Must be Read and Assessed as a Whole

87                               Although I agree with the view of the Chief Justice that s. 515(10)(c) must be read and assessed as a whole, I respectfully disagree that the section can be read down to sever simply the unconstitutional portion of the provision.

88                               It bears repeating that the structure of the provision is one which belies a piecemeal analysis.  The wording of para. (c) is clear.  Bail may be denied for “any other just cause”, one example of which, “without limiting the generality of the foregoing” (emphasis added), is where detention is necessary to maintain confidence in the administration of justice.  It is clear that the essential intent of Parliament in enacting s. 515(10)(c) was to provide for open-ended judicial discretion, and the parties in effect argued the appeal on this basis.  It therefore falls on this Court to scrutinize this grant of discretion.  To ignore the words that lie at the heart of this provision and focus only on the single listed example is, with respect, to disregard the required analysis.

89                               As also noted by the Chief Justice, I observe that the constitutional questions stated by the Court refer to s. 515(10)(c) in its entirety, and that the Court has had the benefit of full written and oral submissions on both the “just cause” and “maintain confidence in the administration of justice” components of the provision.  In addition, since the words “any other just cause” are deliberately open-ended and discretionary, a factual foundation would be of little assistance.  It should be remembered that while it may not be appropriate for the Court to address a constitutional question neither squarely raised nor fully argued by the parties to a case, generally the Court ought not to avoid such questions when they are clearly put before the Court with adequate argument on the issues involved by the parties, as is the case here. 

90                               In this regard, I agree with the following comments of Professor Don Stuart which, although in reference to the Ontario Court of Appeal decision in this case, apply equally well here:

Surely if the issue is vagueness or overbreadth, then the whole section is to be considered, otherwise the consideration would be blinkered and distorted?  On the narrow approach of the Ontario Court, the umbrella clause will only be reviewable where a bail judge expressly rests on it.  Reasons given at show cause hearings are often enigmatic and the approach in Hall may well insulate the section from proper review.  Courts are the guardians of the constitution and should not be bending over backwards to sidestep fully developed and presented Charter  challenges. 

(D. Stuart, “Hall: The Ontario Court of Appeal Ducks Broader Issues in Upholding the New Public Interest Bail Provision” (2000), 35 C.R. (5th) 219, at p. 220)

C.  Application of Section 11(e) of the Charter  to Section  515(10)(c)

91                               Although I adhere to the view that s. 515(10)(c) must be read and considered in its entirety, for the purposes of argument I will assess the two components of the provision separately.  In my opinion, even if these two parts are considered independently, neither can withstand constitutional scrutiny.

(1) “Any Other Just Cause”

92                               As discussed, in Morales, this Court held that a restriction on the s. 11(e) right to bail will be valid if it meets the following two conditions:

(1)  bail is denied only in a narrow set of circumstances; and,

(2)  the denial of bail is necessary to promote the proper functioning of the bail system, and is not undertaken for any purpose extraneous to the bail system.

I will discuss the application of each of these conditions in turn as they apply to the “any other just cause” component of s. 515(10)(c).

(a) Narrow Set of Circumstances

93                               In my view, it is impossible to hold that the words “any other just cause” provide for the denial of bail under a narrow set of circumstances as required by Morales.  The phrase falls considerably more afoul of the vagueness doctrine than the old “public interest” ground because it fails even to specify a particular basis upon which bail may be denied.                      

94                               When one looks at the plain language of the provision, it is self-evident that the deliberate open-endedness of the phrase “on any other just cause being shown and, without limiting the generality of the foregoing” must preclude a finding that the phrase only applies in a narrow set of circumstances.  How can a set be considered narrow when it is explicitly left open with no criteria to govern or limit its exercise?  I agree with the Chief Justice that the phrase “any other just cause” is not sufficiently narrow to meet constitutional standards imposed by Pearson and Morales.

(b) Proper Functioning of the Bail System

95                               It was argued that the phrase “any other just cause” furthers the proper functioning of the bail system by allowing courts to deal with circumstances which have not been foreseen but which make detention necessary, equipping the judiciary with the power it needs to provide for social peace and order in unforeseen circumstances.

96                               In my view, it is an absurdity to argue that the grant of open-ended judicial discretion to deny bail promotes the proper functioning of the bail system when this entire system is premised upon s. 11( e )  of the Charter  and its accompanying requirement that bail only be denied under narrow circumstances.  It must not be forgotten that the raison d’être of the bail system is the presumption of innocence and the general right to bail, and the broader the terms under which bail may be denied, the more this fundamental presumption is compromised. 

(2)  “Necessary in Order to Maintain Confidence in the Administration of Justice”

97                               I turn now to an application of the Pearson and Morales requirements to the “confidence in the administration of justice” component of s. 515(10)(c).

(a) Narrow Set of Circumstances

98                               It is worth repeating the words of Lamer C.J. in Morales, supra, at p. 728, setting out the standard that this condition imposes:

In my view the principles of fundamental justice preclude a standardless sweep in any provision which authorizes imprisonment.  This is all the more so under a constitutional guarantee not to be denied bail without just cause as set out in s. 11(e).  Since pre-trial detention is extraordinary in our system of criminal justice, vagueness in defining the terms of pre-trial detention may be even more invidious than is vagueness in defining an offence.

At first blush, the fact that the provision includes a list of factors to be considered suggests that the confidence in the administration of justice ground is sufficiently precise; however, upon examination, it is difficult to see how the listed factors contribute to a determination of whether confidence in the administration of justice would be promoted by denying bail.  As such, in my opinion, these factors serve as little more than a facade of precision.

99                               The factors listed under s. 515(10)(c) are:  “the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment”.  On their face, these factors seem relevant to a determination of whether bail should be granted or denied; however, one must assume here that the bail decision is not being made in order to ensure the accused attends court or to protect the public, otherwise the decision would be made under either s. 515(10)(a) or (b), which deal specifically with those grounds.  As such, I find it difficult to see how these factors could promote the proper administration of justice when it has already been concluded that it is not necessary to detain the accused in order to ensure the attendance of the accused at trial or to protect the safety of the public.

100                           Although several of these factors have long been thought relevant to bail decisions, initially they were considered as probative only of whether the accused would appear for trial; see Trotter, supra, at pp. 4-8.  In this regard, I note that the Chief Justice states that, at common law, courts “also considered other factors such as the nature of the offence, the severity of the penalty, the evidence against the accused, and the character of the accused” (para. 14).  However, the cases cited in support of this used these factors to determine only whether or not the accused was a flight risk, consistent with the general common law view.  Indeed, it is logical to assume that a strong case for the prosecution and the potential for lengthy imprisonment would serve to increase the risk that the accused will not appear for trial.  In addition, factors such as the gravity of the offence and the circumstances surrounding it are relevant in determining the risk to public safety that the release of the accused poses.  However, once these two risks have been substantially eliminated, to what can these factors point?  As discussed, counsel struggled to posit plausible grounds, aside from those already enumerated in paras. (a) and (b), which would justify pre-trial detention.  In the absence of such grounds, the listed factors are probative of nothing.

101                           Of course, the somewhat tautological argument was put forth that these factors are in fact probative of whether or not confidence in the administration of justice will be promoted by denying bail.  The respondent submitted that since the expression “confidence in the administration of justice” is a well-known phrase, used by both courts and Parliament in a variety of contexts, it delineates a sufficiently narrow and precise standard.  Again, however, I fail to see how confidence in the administration of justice is promoted by detaining an accused who is not at risk of absconding nor a threat to public safety.  On the contrary, to detain an accused in such circumstances solely on the basis that the crime is a serious one and the Crown’s case is strong would serve to undermine confidence in the administration of justice when one bears in mind the importance of the presumption of innocence to the proper administration of justice. 

102                           Thus, with respect, the British Columbia Court of Appeal in R. v. MacDougal (1999), 138 C.C.C. (3d) 38, erred in concluding that the provision provided a sufficiently precise standard.  At p. 48, the court held:

In my judgment, Parliament has not left the legal profession and the judiciary without a road map to use in the interpretation of s. 515(10)(c).  The provisions of the section appear to me to require the Crown at a bail hearing to establish a strong prima facie case of very bad conduct resulting in serious harm or the potential for serious harm.  In such circumstances, there would usually exist a strong likelihood that a significant sentence would be imposed on a person found guilty of such conduct.

Although the terms of the test may appear to define a cogent standard, the problem with this type of analysis is that it allows for pre-trial detention on the basis of nothing more than a serious crime coupled with a strong prima facie case.  Again, however, I am at a loss to comprehend how pre-trial detention in such circumstances, where there is little risk of flight or to public safety, could possibly promote confidence in the administration of justice in the mind of an informed public fully aware of the importance of the presumption of innocence and the right to bail.  As I have stated, something more than simply weighing the listed factors is necessary in order to justify pre-trial detention, and no valid ground to fill this constitutional void has been put forth.

103                           Consequently, I am of the view that this Court’s holding in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (“CBC”), namely that the phrase “proper administration of justice” provided an intelligible standard by which a presiding judge could exclude members of the public from criminal proceedings, cannot be used to support a similar conclusion in the case at bar.  The Court’s holding in CBC was based on its conclusion that, in the context of s. 486(1)  of the Criminal Code , the phrase “proper administration of justice” engaged specific fundamental values such as the ability of courts to control their own process in furtherance of the rule of law, and the power of courts to regulate the publicity of their proceedings in order to protect the innocent and safeguard privacy interests:  see  CBC, supra, at paras. 36-43.  By engaging these specific values, the phrase “proper administration of justice”, in the context of s. 486(1), provided an “intelligible standard . . . according to which the judiciary [could] exercise the discretion conferred”:  CBC, at para. 59.  In contrast, as I have stated, I can find no parallel values engaged by the phrase “maintain confidence in the administration of justice”, as it is found in s. 515(10)(c).  The mere fact that this phrase is well known does not serve to endow it with an intrinsic legitimacy.  On the contrary, the proper approach is to examine the phrase in its statutory context and in light of the specific values engaged:  CBC, at para. 36.  In the context of s. 515(10)(c), the phrase “maintain confidence in the administration of justice” fails to engage any legitimate specific values and thus does not provide the judiciary with an “intelligible standard”.

104                           By enacting s. 515(10)(c), Parliament has essentially revived, albeit with more elaborate wording, the old “public interest” ground that this Court struck down in Morales.  In Re Powers and The Queen (1972), 9 C.C.C. (2d) 533 (Ont. H.C.), at pp. 544-45, the “public interest” ground was defined to include:

. . . the “public image” of the Criminal Code , the Bail Reform Act amendments, the apprehension and conviction of criminals, the attempts at deterrence of crime, and ultimately the protection of that overwhelming percentage of citizens of Canada who are not only socially conscious but law-abiding.

In R. v. Dakin, [1989] O.J. No. 1348 (QL) (C.A.), the same term was described as including “the public’s perception of, and confidence in, the administration of justice”.  In Morales, Lamer C.J. rejected these expressions of “public interest” as relying “on an imprecise notion that the public interest justifies denying bail whenever the public image of the criminal justice system would be compromised by granting bail” (p. 731).  In my view, s. 515(10)(c) invokes similarly vague notions of the public image of the criminal justice system, the only difference being that in s. 515(10)(c) the public image standard is expressed by the phrase “maintain confidence in the administration of justice” as opposed to the term “public interest”. 

105                           In R. v. Nguyen (1997), 119 C.C.C. (3d) 269, McEachern C.J.B.C. (in Chambers) specifically referred to s. 515(10)(c) as the “new definition of public interest” (para. 6) and “the ‘public interest’ requirement” (para. 15).  Professor Trotter, one of the leading experts in this area, comes to a similar conclusion, supra, at pp. 145-46:

Section  515(10)(c) is more detailed and refined than its predecessor [the “public interest” ground].  However, it achieves the same objective — it permits the detention of an accused person based upon the anticipated reaction of the public to the decision, free of any concern about the accused person absconding or re-offending.

106                           Given this underpinning in public perceptions, s. 515(10)(c) is ripe for misuse, allowing for irrational public fears to be elevated above the Charter  rights of the accused.  In the face of a highly publicized serious crime and a strong prima facie case, the importance of the presumption of innocence or the right to bail will not be at the forefront of the minds of most members of the public.  Many individuals will instead accept the factors listed in the provision to be a proxy for the accused’s guilt, and the release of the accused may very well provoke outrage among certain members of the community.  However, this outrage cannot be used by the bail judge as a justification for denying bail, whether or not it is dressed up in administration of justice language.  Indeed, the case at bar aptly illustrates this very pitfall.  Bolan J. said:

This City, like any other small cities, looks to its courts for protection.  The feelings of the community have been expressed by certain witnesses.  Some people are afraid, and some people have voiced their concerns.  This is a factor which I will accordingly take into consideration when I assess the third ground.

107                           With respect, the bail judge erred in considering the subjective fears of members of the public when he had already determined that the accused should not be denied bail for fear of flight or threat to the public.  Although it may well be that the reaction of the public can play a role in determining the threat posed by the accused’s release under the public safety ground, that is not what the bail judge decided in this case.  It is the role of courts to guard the Charter  rights of the accused when they conflict with irrational and subjective public views, even when sincerely held.  The problem with s. 515(10)(c) is that, stripped to its essence, its very purpose is to allow these subjective fears to form the sole basis by which bail is denied.

(b) Proper Functioning of the Bail System

108                           It follows from the above discussion that the listed factors in s. 515(10)(c), taken by themselves, do not promote the proper functioning of the bail system.  Obviously, if the factors lead to a denial of bail which is contrary to the proper administration of justice, which is the view I take, the result cannot be one which promotes the proper functioning of the bail system.  It does not further our pre-trial release scheme to allow irrational fears and inclinations to distort the proper application of bail requirements.  No authority is needed for the proposition that ill-informed emotional impulses are extraneous to our system of bail.

109                           As discussed above, the respondent suggested several specific grounds for denying bail which could fall under the “administration of justice” rubric.  Although some of these suggestions may be seen to promote the proper functioning of the bail system (for example, denying bail in order to protect the accused), the ability to identify one or two isolated examples where the denial of bail may be justified for reasons other than those listed under either (a) or (b) cannot be used as a justification for the broad language of s. 515(10)(c).  It is open to Parliament to legislate to cover these narrow grounds if it deems this to be necessary; however, this is not what this section is aimed at. 

110                           In summary, although in other circumstances the factors listed in s. 515(10)(c) could be viewed as circumscribing a fairly narrow range of circumstances, the lack of a valid ground or purpose to which the factors are aimed at qualifying negates the effect that such factors would otherwise have in narrowing the scope of the section.  As a result, whether or not the phrase “maintain confidence in the administration of justice” has been given a workable standard by courts and/or Parliament in other contexts, in the context of s. 515(10)(c) it is impermissibly vague because of the failure to establish a plausible and valid ground for denying bail that would serve the proper administration of the bail system and that is not already covered under the more specific grounds in s. 515(10)(a) and (b).  Without such an independent ground, the listed factors, by themselves, point to a denial of bail on the mere two-fold basis of a serious crime and a strong prima facie case; however, it does not promote the proper functioning of the bail system to detain an accused on this basis alone, when the accused is not a flight risk and does not pose a threat to public safety. 

111                           As a result, I conclude that s. 515(10)(c) fails both the conditions set out by Lamer C.J. in Morales and thus breaches s. 11( e )  of the Charter .  It is thus necessary to determine whether this breach can be justified under s. 1.

D.  Section  1 of the Charter 

(1)  Pressing and Substantial Objective

112                           Pursuant to the test set out in R. v. Oakes, [1986] 1 S.C.R. 103, and its progeny, in order for a law that infringes a provision of the Charter  to be justified under s. 1, the onus is on the Crown to identify some pressing and substantial concern that the provision is meant to address.  As an initial matter, I find it difficult to justify as “pressing and substantial” a provision which denies bail under circumstances which cannot be articulated more precisely than “to maintain confidence in the administration of justice”, and certainly not for “any other just cause”.  This is especially so given the failure, discussed above, to identify particular circumstances where s. 515(10)(c) would validly operate.

113                           The respondent argued that the objective of s. 515(10)(c) was that of s. 515 as a whole which is “to create a liberal system for the granting of bail, and to limit pre-trial detention as much as possible, consistent with the needs of the wider administration of justice” (respondent’s factum, at para. 73).  Although this may indeed be a pressing and substantial objective, it still must be shown how a part of s. 515 which breaches the Charter  addresses some pressing concern within the wider context of the bail system. 

114                           The respondent stated that “the objective of allowing courts to respond to unforeseen circumstances . . . addresses concerns which are pressing and substantial in a free and democratic society” (respondent’s factum, at para. 75).  Again, however, since the respondent failed to posit a hypothetical let alone actual scenario where s. 515(10)(c) would be necessary, this hardly qualifies as a pressing and substantial objective.  In addition, in enacting s. 515(10)(c) Parliament did not appear to have been motivated by any evidence of deficiencies in the bail system during the five years post-Morales.

115                           Aside from this lack of an empirical foundation for the section, our attention was not drawn to any provision similar to s. 515(10)(c) in comparable legal systems.  The only enactment in the same vein as s. 515(10)(c) is the South African provision allowing for bail to be denied “where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security”.  This provision was challenged in S v. Dlamini, 1999 (4) SA 623 (CC), as being contrary to the constitutional right to be released from detention if the interests of justice permit, subject to reasonable conditions.  The Constitutional Court of South Africa upheld the provision under the analogue to s. 1 (at p. 659-60):

It would be irresponsible to ignore the harsh reality of the society in which the Constitution is to operate.  Crime is a serious national concern, and a worrying feature for some time has been public eruptions of violence related to court proceedings.  In the present context we are not so much concerned with violent public reaction to unpopular verdicts or sentences, but with such reactions to unpopular grants of bail.  There is widespread misunderstanding regarding the purpose and effect of bail. . . . The ugly fact remains, however, that public peace and security are at times endangered by the release of persons charged with offences that incite public outrage. . . . Experience has shown that organised community violence, be it instigated by quasi-political motives or by territorial battles for control of communities for commercial purposes, does subside while ringleaders are in custody.  Their arrest and detention on serious charges does instil confidence in the criminal justice system and does tend to settle disquiet, whether the arrestees are warlords or druglords.

It is obvious that in Canada no comparable social conditions exist, either currently or in the foreseeable future, which would justify s. 515(10)(c) under s. 1.  Moreover, the provision in question in Dlamini is more narrowly drawn than the provision under appeal here, and indeed seems more akin to the “public safety” ground under s. 515(10)(b).  As a result, in my opinion, the respondent has failed to identify a sufficiently pressing and substantial objective that is furthered by s. 515(10)(c).

(2)  Proportionality

116                           Even if one were to assume that a pressing and substantial objective exists, I find that s. 515(10)(c) also fails the proportionality stage of the Oakes test.  First, it follows from my finding that s. 515(10)(c) is aimed at authorizing pre-trial detention for reasons which are not in furtherance of the proper functioning of the bail system, that there is no rational connection between this provision and the objective identified by the government, which relates to the proper functioning of the bail system.

117                           Secondly, s. 515(10)(c) cannot satisfy the minimal impairment branch of the proportionality stage of the Oakes test.  I fail to see how the broad discretion that s. 515(10)(c) grants to bail judges could be viewed as minimally impairing of the s. 11(e) rights of an accused.  Aside from the fact that paras. (a) and (b) appear to sufficiently address most, if not all, situations where bail ought to be denied, the bail judge also has an infinite array of conditions of release available which can be imposed on the accused in order to restrict the accused’s actions and monitor his or her whereabouts.  Section  515(10)(c), by granting open-ended discretion to the bail judge, authorizes pre-trial detention in a much broader array of circumstances than necessary, and thus is not minimally impairing of the s. 11(e) right to bail.  In order to satisfy the minimal impairment stage of the Oakes test in this context, Parliament must, at a minimum, restrict the denial of bail to a discrete set of grounds.

118                           Finally, there is no proportionality between the deleterious effects of pre-trial detention and the salutary effects of s. 515(10)(c).  Given that there appears to be no pressing and substantial concern that this provision addresses, I question whether the section can produce much in the way of salutary effects.  However, even aside from this, as discussed above, pre-trial detention has concrete and profound deleterious effects on the accused.  Not only does pre-trial detention present a serious imposition on the liberty of the accused and his or her right to be presumed innocent, but also there are demonstrated and troubling correlations between pre-trial detention and both the ability to present a defence and the eventual outcome of the trial.  Moreover, an accused placed on remand is often subjected to the worst aspects of our correctional system by being detained in dilapidated overcrowded cells without access to recreational or educational programs.  The seriousness of this deprivation is recognized by sentencing judges who frequently grant double credit for pre-trial custody: see R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.); Trotter, supra, at pp. 36-39. Such serious prejudicial effects would obviously outweigh the potential salutary effects of this provision if any had been shown.

119                           As a result of the foregoing, I find that s. 515(10)(c) breaches s. 11( e )  of the Charter  and cannot be saved under s. 1.  As such, it is necessary to address the remedies available under s. 52  of the Constitution Act, 1982 .

E.  Remedies

120                           By enacting s. 515(10)(c), the clear intention of Parliament was to provide for an open-ended residual provision allowing for bail to be denied at the discretion of the bail judge, subject to the broad requirement that there be “just cause” to do so.  The fact that this breadth is intentional is made plainly apparent by use of the phrase “without limiting the generality of the foregoing”. 

121                           In Schachter v. Canada, [1992] 2 S.C.R. 679, this Court set out the guidelines for the constitutional remedies of reading in or reading down, noting that courts must refrain from intruding into the legislative sphere beyond what is necessary (p. 707).  In the context of reading down, the Court noted that an illegitimate intrusion is one which has the effect of substantially changing the significance of the remaining part when the offending part is excised (p. 710). 

122                           In this case, the only available remedy is to strike s. 515(10)(c) down in its entirety.  Although the section may encompass instances where bail could be denied without offending s. 11(e), there is no way for this Court to narrow the scope of the section sufficiently without seriously intruding into the legislative sphere.  In this regard, even if the administration of justice portion of the provision were constitutional, as the Chief Justice finds, the section cannot be read down to include only this portion and remain consistent with this Court’s jurisprudence on this point.  The structure of the provision is such that this second component is but a single example of where bail can be denied under the general “any other just cause” rubric.  To take this single example of the explicitly open-ended rule and convert it into the rule itself would be to substantially change the significance of this portion of the provision, and would expressly contravene Parliament’s clear intention not to limit the generality of “any other just cause”.  This would amount to a re-drafting of the section, an exercise which cannot be undertaken by this Court. 

VII.  The Relationship Between the Courts and Legislatures

123                           In Vriend v. Alberta, [1998] 1 S.C.R. 493, the interaction between the various branches of government was described as a dialogue, with the result, at para. 139, that

. . . each of the branches is made somewhat accountable to the other.  The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33  of the Charter ).  This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.

124                           A good example of how this process plays out is found in the cases of R. v. O’Connor, [1995] 4 S.C.R. 411, and R. v. Mills, [1999] 3 S.C.R. 668.  In O’Connor, this Court outlined the common law procedure to be followed by an accused seeking production of therapeutic records in the hands of third parties by setting out a two-step process by which production of such records could be ordered.  The first stage dealt with whether the document sought by the accused ought to be produced to the judge; at the second stage, the trial judge determined whether the record ought to be produced to the accused.  Parliament responded to the O’Connor decision by enacting a legislative production regime.  Although the legislation maintained the basic two-stage structure of the common law regime, it diverged in several major respects. 

125                           In Mills, supra, the constitutionality of this legislation was challenged under ss. 7  and 11( d )  of the Charter .  In response to the argument that the legislation was unconstitutional to the extent that it did not conform to the O’Connor regime, the majority of this Court held (at para. 55) that

. . . it does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament’s law is unconstitutional.  Parliament may build on the Court’s decision, and develop a different scheme as long as it remains constitutional.  Just as Parliament must respect the Court’s rulings, so the Court must respect Parliament’s determination that the judicial scheme can be improved.  To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy: Vriend, supra.

126                           Mills demonstrates the mutual respect between the courts and legislatures that is so fundamental to the concept of constitutional dialogue between these institutions.  In the legislation under consideration in Mills, Parliament duly considered the constitutional standards set out in O’Connor and responded by enacting a production regime which broadly conformed to these standards.  In response, this Court examined this legislative scheme in light of the particular societal concerns faced by Parliament and, with due regard for Parliament’s considered view of how the production regime should be structured, upheld the legislation as constitutional. 

127                           In my view, s. 515(10)(c) demonstrates how this constitutional dialogue can break down.  Although Parliament has responded to this Court’s decision in Morales, it has not done so with due regard for the constitutional standards set out in that case.  On the contrary, Parliament has essentially revitalized the “public interest” ground struck down in that case.  In my respectful view, by upholding the impugned provision, at least in part, my colleague has transformed dialogue into abdication.  The mere fact that Parliament has responded to a constitutional decision of this Court is no reason to defer to that response where it does not demonstrate a proper recognition of the constitutional requirements imposed by that decision. 

128                           Finally, I emphasize that the role of this Court, and indeed of every court in our country, to staunchly uphold constitutional standards is of particular importance when the public mood is one which encourages increased punishment of those accused of criminal acts and where mounting pressure is placed on the liberty interest of these individuals.  Courts must be bulwarks against the tides of public opinion that threaten to invade these cherished values.  Although this may well cost courts popularity in some quarters, that can hardly justify a failure to uphold fundamental freedoms and liberty.

VIII.  Conclusion

129                           For the foregoing reasons, I would allow the appeal.  I note the disposition of the Chief Justice that the application of s. 515(10)(c) in this case is moot, since the appellant has already been convicted.  However, for the purposes of determining the constitutionality of the provision, I would set aside the judgment of the Ontario Court of Appeal, and answer the constitutional questions as follows:

1.    Does s. 515(10) (c) of the Criminal Code , R.S.C. 1985, c. C-46 , infringe s. 11( e )  of the Canadian Charter of Rights and Freedoms ?

Answer: Yes.

2.    If Question 1 is answered affirmatively, is the infringement demonstrably justified in a free and democratic society pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

Answer: No.

Appeal dismissed, Iacobucci, Major, Arbour and LeBel JJ. dissenting.

Solicitors for the appellant:  Ruby & Edwardh, Toronto.

Solicitor for the respondent:  The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of Canada:  The Department of Justice, Toronto.

Solicitor for the intervener the Attorney General of Quebec:  The Department of Justice, Sainte‑Foy.

Solicitor for the intervener the Criminal Lawyers’ Association (Ontario):  J. L. Bloomenfeld, Toronto.

Solicitors for the intervener the Association des avocats de la défense de Montréal:  Desrosiers, Turcotte, Marchand, Massicotte, Montréal.