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.