Beruflich Dokumente
Kultur Dokumente
________________________________________________________________________
Table of Contents
I. INTRODUCTION ........................................................................................................... 3
II. BACKGROUND ............................................................................................................ 4
III. ISSUES ......................................................................................................................... 4
IV. THE LAW .................................................................................................................... 5
A. Statutory interpretation .............................................................................................. 5
B. Criminal Code section 525—mandatory pre-trial detention reviews ........................ 5
C. R v Myers .................................................................................................................... 7
V. THE POSITIONS OF THE PARTIES .......................................................................... 8
A. The Crown.................................................................................................................. 8
B. The Defence ............................................................................................................... 9
VI. ANALYSIS................................................................................................................. 10
A. Does section 525 provide for ongoing detention hearings every 90 days on the same
file? ............................................................................................................................... 10
(i) The Charter Statement ......................................................................................... 10
(ii) The wording of section 525 ................................................................................ 11
(iii) Criminal Code sections 520 and 521 bail reviews............................................. 13
B. Does either party bear an onus of persuasion at the detention review hearing? ...... 14
C. Is an accused entitled to request an adjournment of the section 525 detention
review? .......................................................................................................................... 16
D. Once an accused has waived their right to the section 525 detention review, may
they revoke this waiver later on to have the hearing proceed? ..................................... 17
VII. CONCLUSION ......................................................................................................... 19
3
I. INTRODUCTION
[1] This case addresses how the courts are to interpret and apply section
525 of the Criminal Code.1 Section 525 provides for mandatory
detention reviews.
[2] The accused, Nuyalia Tunnillie, has two active files before the Court.
A justice of the peace denied his bail request and he was remanded
into pre-trial custody on the first file. He has consented to his remand
on the second file. On 27 May 2020, the sentence administrator at the
Baffin Correctional Centre (BCC) filed a notice with the Court
triggering a mandatory judicial review of Mr. Tunnillie’s detention. He
did so citing section 525 of the Criminal Code.
[3] Crown and Defence counsel, however, do not agree whether the
accused is, in fact, entitled to the section 525 detention review. This
difference in opinion stems from their different interpretations of the
wording of section 525. The lawyers have asked me to rule on the
correct interpretation of section 525, and whether Mr. Tunnillie is
entitled to a detention review.
[4] The lawyers also have asked me to rule on three other related issues
which remain unclear:
[5] The legislation does not address these issues, and these issues have
not been decided in Nunavut. I agreed, therefore, to hear submissions
on these issues as they are all relevant to the conduct of this hearing.
[6] Each lawyer filed written submissions for my review, and I heard oral
argument on July 10. I thank counsel for their helpful submissions.
These are my reasons for decision.
II. BACKGROUND
[7] In Nunavut, BCC notifies the Court each month which detained
inmates will be entitled to a section 525 detention review hearing. The
Nunavut Court of Justice has designated days every month to deal
with these mandatory detention reviews. I now will briefly describe Mr.
Tunnillie’s remand situation.
[8] On the first file,2 Mr. Tunnillie was arrested on 10 December 2019 and
was remanded into pre-trial detention after a bail hearing on 12
December. BCC notified the Court on 10 March 2020 that Mr.
Tunnillie was entitled to a section 525 detention review. However, on
20 March 2020, Mr. Tunnillie’s lawyer filed with the Court Mr.
Tunnillie’s express written waiver of his right to the section 525
detention review. The 27 May 2020 notice, then, is the second section
525 detention review notice filed by BCC in relation to Mr. Tunnillie on
this file.
[9] On the second file,3 the charges were sworn on 30 March 2020 while
Mr. Tunnillie was on remand for the first file. On 30 March, an order
for removal was issued requiring Mr. Tunnillie to attend court for his
first appearance on this matter on 16 June 2020. It appears from the
record that the question of bail on this file has not yet been
addressed. Mr. Tunnillie’s 20 March 2020 waiver does not apply to
this second file.
III. ISSUES
[11] I will now turn to the law which I must apply to this case.
A. Statutory interpretation
[12] Entire books have been written parsing the nuances involved in the
various ways judges try to understand what a particular statute
means. The fundamental role of the interpreting judge is quite clear,
though. I must try to honour the intentions of Parliament.
[13] In this context, Defence counsel has submitted that I may discern
Parliament’s intention from the contents of a Charter Statement tabled
in the House of Commons by the Justice Minister on second reading
of Bill C-75.5 I will return to this submission in my analysis.
[14] Canada has a national statutory bail system. Parliament has codified
bail and possible pre-trial detention in Part 16 of the Criminal Code.
Section 525 mandates a judicial pre-trial detention review for all
persons who are denied bail. As I just noted, Parliament revised
section 525 along with other parts of the Criminal Code last autumn.
Just what the revised section actually means is at the heart of this
decision. The revised section 525 now in force, subsections (1)-(5),
reads as follows:
525 (1) The person having the custody of an accused — who has been
charged with an offence other than an offence listed in section 469,
who is being detained in custody pending their trial for that offence
and who is not required to be detained in custody in respect of any
other matter — shall apply to a judge having jurisdiction in the place
in which the accused is in custody to fix a date for a hearing to
determine whether or not the accused should be released from custody,
if the trial has not commenced within 90 days from
(a) the day on which the accused was taken before a justice
under section 503; or
The person shall make the application immediately after the expiry of
those 90 days.
(1.1) However, the person having the custody of the accused is not
required to make the application if the accused has waived in writing
their right to a hearing and the judge has received the waiver before
the expiry of the 90-day period referred to in subsection (1).
(3) The judge may cancel the hearing if the judge receives the
accused’s waiver before the hearing.
(5) If, following the hearing, the judge is not satisfied that the
continued detention of the accused in custody is justified within the
meaning of subsection 515(10), the judge shall make a release order
referred to in section 515.
C. R v Myers
[17] Last year, the Supreme Court of Canada examined at length the then
existing version of section 525 and it outlined what it called “the
correct approach”6 to these detention review hearings. The Court
highlighted that the purpose of section 525 is to prevent an accused
person from “languishing” on remand, and to ensure their prompt
trial.7 As we shall see, Myers assists us to resolve issues one and
three. However, Myers does not address the issues of onus,
adjournment, and waiver.
A. The Crown
[18] On issue one, the Crown says that section 525 does not state
expressly that an accused is entitled to ongoing detention reviews
every 90 days. “Parliament’s silence”, he continued, is “very telling”.
He contrasted section 525 to section 520 which does provide for
possible subsequent bail reviews (under other circumstances). The
Crown also contrasted section 525 with the regime in the Immigration
and Refugee Protection Act which is also federal legislation.8 This
latter Act expressly provides for ongoing detention reviews every 30
days. Parliament’s experienced legislative drafters know how to
provide for successive reviews. Parliament did not include such a
regime in section 525. Therefore, the Crown concluded, Mr. Tunnillie
– and any detained accused – is only entitled to one section 525
detention hearing.
[19] The Crown also referred to several cases where courts across
Canada have reached that conclusion.9
[20] On issue two, the Crown submits that there is no onus on either party
at the detention review hearing, citing the Ontario case R v G.F.10
This trial level Ontario case says the section places a statutory
obligation on the judge to make an independent decision whether the
continued custody of the accused is justified. The question of an onus
is thus irrelevant to this independent judicial detention review.
[22] On issue four, the Crown says that the accused is no longer eligible
for a hearing once he has filed an express written waiver. To find
otherwise would open up the possibility of lengthy adjournments
which do not help move cases along to timely resolution.
8 Written Representations of the Crown, filed with the Court on 4 July 2020 at paras 27-29.
9 R v McCallum, 2013 ABQB 175 [McCallum]; R v Oake, 2019 NWTSC 2; R v Ibanez, 2020
BCSC 233; R v Doczi, 2020 BCSC 951; R v Scott, 2020 NBQB 89.
10 R v G.F., 2020 ONSC 3389 [G.F.].
9
B. The Defence
[23] On issue one, Defence counsel stated that Parliament did, in fact,
intend for section 525 detention reviews to be held every 90 days.
She cited only one authority to justify her submission – a Charter
Statement filed by the Minister of Justice in the House of Commons
on 29 March 2018 relating to Bill C-75.11 The introductory explanation
to the Charter Statement sets out the reasons for tabling such a
document. In the context of this decision, two points stand out:
[24] Defence counsel acknowledged that section 525 does not expressly
provide for continuing detention reviews. But, she quoted from the
Charter Statement to highlight the following statement:
This Bill would amend the provisions for mandatory judicial reviews
of pre-trial detention orders, so that these reviews must occur every 90
days for all accused persons.13
11 Among many other things, Bill C-75 contained the proposed amendment to section 525 which
was eventually passed by Parliament into law.
12 Charter Statement – Bill C-75: An Act to Amend the Criminal Code, Youth Criminal Justice Act
and other Acts and to make consequential amendments to other Acts at 1. The references to the
Charter refer to the Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act
1982 (UK), 1982, c 11.
13 Defence counsel’s Written Submissions, filed with the Court on 4 July 2020 at 9.
14 Ibid at 10.
15 Section 515(10) of the Criminal Code, supra note 1, outlines the only circumstances which
[27] On issue three, Defence counsel said it is open to the Court to grant
adjournments of the detention review. In practice, she stated that
judges of this Court have recently adjourned several detention
reviews sine die – or without a fixed return date – when the Defence
has not been ready to put a reasonable bail package forward.
VI. ANALYSIS
[30] I will first discuss Defence counsel’s submission that the Charter
Statement should persuade me that Parliament intended there to be
ongoing 90-day detention reviews. I shall then discuss the clear
wording of section 525. Lastly, I will consider whether section 525 is
consistent with the remainder of Canada’s statutory bail regime.
[32] I conclude that I cannot place any weight upon the document. The
document may have been a statement of ministerial intent at the time
it was tabled, but it bears no relation to the section that Parliament
passed. As the English judge Lord Denning once remarked in a
similar case:
[35] The wording of section 525 is clear. In layman’s terms, subsection (1)
specifically lists five events which trigger a mandatory detention
review. 90 days after the triggering event, the jailer must notify the
court and the court must then conduct a detention review. The
presiding judge must determine whether the continuing detention of
the accused is justified. The judge must release the accused if their
continued detention cannot be justified. If the judge concludes that the
detention ought to continue, he merely affirms the existing detention
order. In this latter instance, the judicial affirmation of the existing
detention order does not constitute a new detention order, and the
renewal is not another triggering event.
[36] Furthermore, subsection (1) does not call for ongoing 90-day
detention reviews. I must not guess or speculate whether this
absence of an ongoing detention review mechanism may have been a
Parliamentary oversight.
17Cited in Ruth Sullivan, Statutory Interpretation, 3rd ed (Toronto: Irwin Law, 2016) [Sullivan] at
263-264.
12
[37] I believe a correct reading of Myers supports this view. In the words of
the Chief Justice:
[38] Mr. Tunnillie was brought before a justice of the peace after his arrest
and the justice of the peace denied him bail after a bail hearing on 12
December 2020. The 90-day clock started counting down that day
which led to the March 2020 filing by his jailer of its section 525
notice. That is exactly the scenario outlined in the quote above from
Myers. As it happened, Mr. Tunnillie waived his right to the detention
review, and no new detention order was issued by the Court.
[43] Apart from section 525, Mr. Tunnillie enjoys an ongoing right to have
his detention reviewed. Pursuant to Criminal Code section 520(1), an
accused may apply to a judge to review a bail order “at any time
before the trial of the charge”.21 Furthermore, section 520(8) states
that once such a bail review has been held, another review cannot be
requested by the accused, without leave of the court, until 30 days
have gone by.
[44] Criminal Code section 521 extends an equivalent right of bail review
to the Crown.
20 Ibid at 43.
21 Criminal Code, supra note 1, s. 520(1). Generally, the accused must show a material change
in circumstances since the bail order was made.
14
[48] A court may deny an accused bail and remand him into custody only
in three circumstances: if remand is necessary to get the accused to
attend court, or it is necessary for the safety or protection of the
public, or to maintain public confidence in the justice system.22
Depending on the surrounding circumstances, the onus – or burden of
persuasion – at a bail hearing or bail review may lie either with the
Crown or the Defence. Section 525 makes no reference to whether
either party bears an onus at the detention review.
[49] There is indeed “considerable debate in the case law”23 on this topic.
The proposition that there is no onus at the detention review is based
on a certain reading of Myers. The G.F. case noted by both counsel
sets out the position nicely:
[50] As I noted earlier, Myers did not discuss or decide the onus issue. I
remind myself that I am considering a statutory regime, and that I
must consider the overall purpose and scheme of the entire regime.
22 Criminal Code, supra note 1, ss. 515(10)(a), (b), and (c). These criteria are known as the
primary, secondary, and tertiary grounds.
23 Hon. Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed (Toronto: Thomson Reuters,
[51] Prior to Myers, several cases in different provinces held that the onus
at the detention hearing is the same as at the initial bail hearing.25
Post Myers, an Ontario trial level judge has ruled that where an
accused has not had a bail hearing, the onus at the detention review
is what it would have been had the bail hearing been held. There are
Ontario cases which say that where there has been a bail hearing, the
onus at the detention hearing lies with the Defence to establish,
among other things, a change in circumstances or the existence of
new evidence.26 G.F. is authority for the proposition that there is no
onus. Given our federal system, none of these cases are binding law
in Nunavut.
[52] This issue has not been considered before in Nunavut, and I must try
to resolve it.
25 R v Thorsteinson, 2006 MBQB 184; R v Russell, 2016 NLTD(G) 208, 136 W.C.B. (2d) 73.
26 These cases are discussed in G.F., supra note 10 at para 16, and Trotter, supra note 23 at 8,
54-55.
27 2008 YKSC 27 at para 30.
16
[56] The onus of persuasion or onus of proof at the detention review falls
on the same party that had the onus at the hearing that resulted in the
original or reviewed detention order (or who would have had the onus
at the bail hearing).
[58] The section 525 detention review regime does not include any
reference to adjournments. However, the Supreme Court of Canada
has provided some guidance on this point. Once the jailer has filed its
section 525 notice, the court must schedule the hearing date “without
delay” to the “first available date.”28 As the hearing is mandated by
statute, the court has no authority not to hold the hearing in a timely
fashion. The Court in Myers continued that only “occasionally and in
limited circumstances” may the judge exercise discretion to adjourn
the detention hearing.29
[61] Defence counsel says Mr. Tunnillie needs some time to respond
properly to the detention review. In my view, the interests of justice
are clearly served by granting Mr. Tunnillie’s request for an
adjournment on the second file. The first part of the two-part-test is
satisfied. The real issue invokes the second part of the test. How long
may the Court adjourn and thereby delay the detention review?
[62] The second part of the Myers test says that any adjournment must
conform to the purposes of the detention review regime. As we have
seen, the purpose of the regime is to ensure that an accused does not
fall through the cracks while sitting on remand, and that the judge act
as a case manager to ensure that the case proceeds along to a timely
resolution. To that end, it appears only logical that any adjournment
ought to be a reasonably short one so as not to undermine the
purpose of the timely detention review process.
[63] I will not try to define what, or what may not, constitute a reasonably
short adjournment. These determinations can only be made in
response to the circumstances of the individual case. In Mr. Tunnillie’s
case, I am prepared to grant an adjournment up to 30 days before the
detention review may be held. I would not be inclined to go beyond
that time for the reasons I have already stated above, and because
Mr. Tunnillie always has the benefit of a potential section 520 bail
review.
[65] Section 525 is silent on this issue which was not considered in Myers.
I look to the legislation itself and the implications of section 525(1.1) to
find the answer.
18
[66] In Nunavut, the practice has developed where BCC, for example, files
its section 525 notice with the Court close to or at the very same time
as it sends the notice to Defence and Crown counsel. This may
explain why the waiver form drafted by counsel for the Legal Services
Board contains a place to record the court file number. Once the
Court receives the notice, the Court must schedule the detention
review. So, practically, we have the situation where Mr. Tunnillie has
filed his written waiver after the jailer has filed its notice, so the Court
is seized with the matter. While the merits of this practice were not
argued before me, the present practice seems to conform with the
legislation.
[68] But, is the waiver permanent if the matter gets before the court?
Counsel were unable to provide any case law where this issue has
been discussed. As a matter of principle, a revocable waiver
potentially could lead to long or indefinite adjournments. These
possibilities fly directly in the face of Parliament’s clear purpose to
have the mandatory section 525 safety net detention review held as
close as possible to 90 days after an accused is denied bail.
[69] Therefore, I rule that Mr. Tunnillie’s express waiver of his right to the
detention review filed on 20 March 2020 was irrevocable.
VII. CONCLUSION
[70] Section 525 forms one part of the comprehensive statutory bail
regime enshrined in the Criminal Code. Parliament intended section
525 to act as an early safety net to ensure that an accused subject to
pre-trial detention does not fall through the cracks. 90 days after he is
brought before a justice of the peace after arrest, or 90 days after a
subsequent remand, an accused must be brought before a judge. In
most cases, section 525 acts as a one-time32 systems check to
ensure that an accused’s case is moving along appropriately.
[72] Mr. Tunnillie irrevocably waived his right to his detention review on file
one on 20 March 2020. There has been no subsequent detention
order and therefore no subsequent triggering event. For these
reasons, I find that Mr. Tunnillie is not entitled to another section 525
detention review. I strike file one from the docket.
[73] Mr. Tunnillie, however, is entitled to have his bail status determined
on the second file. Myers is binding authority which mandates the
detention review judge to conduct a detention-review-cum-bail-
hearing if one has not yet been held.33
___________________
Justice P. Bychok
Nunavut Court of Justice
32 As Alan D. Gold noted in The Practitioner’s Criminal Code 2020 (Toronto: LexisNexis, 2020) at
849, before the amendments in Bill C-75, “In normal circumstances, there is only one application
available under s. 525 of the Code, with no application 90/30 days thereafter. However, there
may be anomalies…”. For a discussion of these possible anomalies, see McCallum, supra note 9
at paras 47-48.
33 Myers, supra note 4 at para 56.