R v Myers: The Importance of Safeguards Against Unnecessary Pre-Trial Detention
One of the most impactful and controversial aspects of criminal procedure today is if and when an accused receives bail. Almost half of the residents of provincial jails are persons in pre-trial custody (Statistics Canada). Pre-trial custody can significantly impact an accused’s capacity to raise a defence. It can also harm their physical and mental well-being and may cause an accused to lose their means of supporting themselves (R v Hall, 2002 SCC 64, para 59). Despite the well-recognized negative effects of pre-trial custody, if and when an accused receives bail – also called judicial interim release – is controversial. The Premier of Ontario has expressed concerns about the judicial interim release of accused persons charged with gun offences and has allocated millions of dollars to prohibit those charged with firearms offences from receiving bail (CBC & Globe and Mail). Ontario’s Premier has also taken the position that Canada’s bail regime needs to be reformed, which the Federal government disputes (CBC & Globe and Mail).
It is in this context that the Supreme Court of Canada (“SCC”) decided R v Myers, 2019 SCC 18 [Myers]. Myers mirrors the contemporary discussions around bail, as it concerns an accused who is charged with committing gun crimes. The unanimous decision by the Court sets out when an accused in pre-trial custody is entitled to a review of the necessity of their detention, pursuant to s. 525 of the Criminal Code, RSC 1985, c C-46 [Criminal Code].
Corey Myers was charged with numerous firearms and motor vehicle offences, which arose from a high-speed car chase. At the time of the car chase, he was out on bail for other charges. While incarcerated, he plead guilty to the offences that he had been out on bail for and served the duration of his sentence. After completing his sentence, Mr. Myers sought to have his detention reviewed because he was only being detained in pre-trial custody on the new firearms and motor vehicle offences. The court of first instance declined to release the accused. After a period of 90 days had elapsed, the accused once again applied to have his detention reviewed under s. 525 of the Criminal Code (Myers, paras 5-12).
The Court in Myers was tasked with deciding when persons are entitled to a review of their detention per s. 525 of the Criminal Code. Section 525 says that an accused is entitled to a review of their detention after 90 days if they are charged with an indictable offence, or after 30 days if they are charged with a summary offence. However, the question before the Court was if there are any other threshold requirements – besides the passage of time – that must be met before an accused can have their detention reviewed under s. 525. The Court also goes out of its way to address how these bail reviews ought to be conducted.
Appellate History: Competing Interpretations of Section 525
Myers is the cumulation of a legal battle between two competing interpretations of s. 525. The parties took the position that the panel must decide between one of two lines of authority:
- If an accused wants a review of their detention, they must first show that there has been an unreasonable delay in getting to trial, as a threshold condition. If there has been no unreasonable delay, then no detention review will be granted per s. 525 of the Criminal Code.
- If an accused wants a review of their detention, there is no unreasonable delay threshold. Unreasonable delay is only one of many factors to consider if the detention still remains necessary (Myers, para 17).
After considering both lines of authority, the Supreme Court of British Columbia accepted the former interpretation. It held that an accused must show either a) that there was an unreasonable delay caused by the Crown or b) that the passage of time has impacted the original justification for the accused’s detention (Myers, para 11).
The SCC’s Take
The Court decided unanimously, applying the modern approach to statutory interpretation, that there is no unreasonable delay threshold condition that must be met for a detention review. Rather, the jailer has the responsibility of immediately applying for a detention review if it has been 90 days (or 30 days in the case of a summary offence) since an accused in pre-trial custody first appeared before a justice. If an intervening detention order was made after an accused’s first appearance, then the time period starts from the date of that intervening detention order. Therefore, the only threshold condition for a detention review under s. 525 is that the applicable time period has passed since the last detention decision was made (Myers, para 62).
The accused need not apply or elect for a s. 525 detention review. It is an “automatic procedure” that the jailer and judge are required to preform (Myers, para 44). A jailer must apply for a detention review immediately after the 90 or 30 days has passed. At that point, a judge is required to hold a hearing at the earliest opportunity (Myers, para 62). The jailer cannot send letters to the accused that place the burden on him or her to request a detention review (Myers, para 44). In that way, the jailer cannot avoid or delay conducting a detention review by requiring accused persons to take steps before it is obligated to apply for a hearing.
The Court also offered some details on how detention reviews should be conducted. The issue to be decided at a detention review is only if the accused’s detention is still justified by one or more of the three reasons for pre-trial custody in s. 515(10) of the Criminal Code. The justice may take into account any of the following: new evidence, a change in circumstances of the accused, the impact the passage of time has had since the last detention decision, the rationales offered for the initial detention order, and if there has been an unreasonable delay which has caused the continued detention to no longer be proportionate with the offence the accused is charged with (Myers, para 63). If, for whatever reason, there was no initial detention decision, the justice is responsible for conducting one. On the other hand, when there has been a prior detention decision the justice cannot simply uncritically “rubber-stamp” it (Myers, para 55).
Myers became moot before it reached the Court, as the accused plead guilty to two of the firearms and motor vehicle offences and the rest were withdrawn. The Court, however; notes that a detention hearing should have been applied for promptly after the 90 days of pre-trial detention and then scheduled without delay (Myers, paras 13, 65).
The SCC Maintains an Accessible Safeguard Against Unnecessary Pre-Trial Detention
The Court ought to be lauded for interpreting s. 525 of the Criminal Code in a way which protects and promotes the presumption of innocence and mitigates the harms of pre-trial detention. This is particularly striking given the need for courts to become more efficient. The SCC could have limited an accused persons access to bail review by imposing an additional threshold condition, such as requiring unreasonable delay. Doing so, given the many persons in pre-trial custody, would certainly have reduced the workload of courtrooms across the country.
Despite the potential benefit of limiting detention reviews, the Court made the right decision. Pre-trial detention is an exception to the rule that requires the Crown prove that an accused violated the law, before they are deprived of their liberty. This facet of the presumption of innocence is advanced by maintaining that pre-trial detention only continues when it is absolutely necessary. Accessible regular detention reviews achieve this end. Detention reviews protect against the possibility that the justification for a detention has become irrelevant, because of the passage of time. It also offers a modest safeguard against poorly reasoned detention orders by enabling reviewing justices to overturn them. Further, the devastating effects of pre-trial custody which I noted at the beginning of this blog post are mitigated by the regular review and discontinuation of unnecessary detentions. The Court should be praised for interpreting s. 525 of the Criminal Code in a way that recognizes its importance as an accessible safeguard against unnecessary detention.