On May 15, 2015, the Supreme Court of Canada released its decision R. v. St-Cloud. This is the first of a three part series studying and outlining the case. The court was analyzing the reasons to justify someone's detention in custody, specifically the third reason listed in the Criminal Code. It is commonly referred to as the tertiary ground and it is found in s. 515(10)(c): "if the detention is necessary 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 offence,
- the circumstances surrounding the commission of the offence, including whether a firearm was used, and
- the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more."
The Supreme Court considered the tertiary ground in the 2002 decision R. v. Hall, and it refers to that earlier decision throughout this one. The Supreme Court reminded us that the Charter of Rights and Freedoms guarantees us all the right to "not be denied reasonable bail without just cause." This court held this means two things: "(1) the right to “reasonable bail” in terms of quantum of any monetary component and any other conditions that might be imposed; and (2) the right not to be denied bail without “just cause" at paragraph 27.
The court also clarified that in order for the tertiary ground to be relied upon, the crime does not have to be horrific, heinous, or unexplained. Justice Wagner held, "In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide justices in their analysis under s. 515(10) (c)" at paragraph 47. Also, the rarity of a certain crime is not something to consider because the court held "I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice" at paragraph 52.
Finally, the court interpreted "all of the circumstances" to potentially include other aspects besides the ones listed in the Criminal Code. It is not an exhaustive list, but the court did list the following at paragraph 71:
- the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant
- the status of the victim and the impact on society of a crime committed against that person
- the fact that the trial of the accused will be held at a much later date.
Overall, it seems like the Supreme Court is trying to open the door for judges to rely upon the tertiary ground in more cases. That may have been the original intent of Parliament when the legislation was enacted, but the way judges in provincial and superior courts have interpreted the law over time may have slowly changed how we thought the tertiary ground was supposed to work. It was obviously an issue important enough that the court heard the case in the first place. We now have to wait and see how it has an impact on a day to day basis when we apply for a client's release from custody.
- Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)
- How a bail hearing works in Manitoba (MichaelDyck.ca)
- What is an undertaking? (TomRees.ca)
- Ontario Court of Appeal revokes bail after contact breach (TomRees.ca)
- Michael Sona is released on bail pending appeal (TomRees.ca)
- About bail (TomRees.ca)
About the author
Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.