Current & Curious: Practical - but perhaps not precise - Interpretation

Tassandra Whyte was charged with accessory after the fact to murder. She wanted to be released on bail pending her trial. She applied for bail and had a hearing in Superior Court; her application was denied and she was detained on the secondary grounds.

Whyte renewed her application for bail in Superior Court, alleging there had been a material change. The changes included her living arrangements and the fact that the trial was now likely to occur some significant distance in the future.

At that second bail hearing the court declined to consider the matter on the basis that it lacked jurisdiction; the court held that a renewed bail application based on change in circumstances could only be heard by the Court of Appeal. .

Whyte sought a review under section 680(1) to the Court of Appeal: 2014 ONCA 268.

The Court of Appeal considered the issue of whether the Superior Court could entertain a second bail hearing. It offered the following overview of the law on this issue:

The relevant practice in Ontario can be summed up as follows:  Where an applicant is detained pursuant to a charge for an offence listed in s. 469 of theCode, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant’s grievance. Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, the proper course is to seek review by a court of appeal under s. 680 of theCode: R. v. Daniels (1997), 35 O.R. (3d) 737 (C.A.), at p. 746. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d) 309, at para. 5; R. v. Klymchuk (2007), 220 C.C.C. (3d) 439 (Ont. S.C.), at pp. 447-48; R. v. Saleh (2007), 252 C.C.C. (3d) 521 (Ont. S.C.). This second avenue reflects the “considerable common sense in returning to the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new or changed information on the issue of interim release”: R. v. Boyle, [2006] O.J. No. 5094 (C.A.), at para. 3.

The availability of this second procedure does not foreclose consideration of a change in circumstances on a s. 680 application, however: see Daniels, at p. 747; Boyle, at paras. 3-4. In other words, the Superior Court of Justice and the Court of Appeal have concurrent jurisdiction to decide whether there has been a material change of circumstances warranting judicial interim release [paras 21-22].

The court then turned to consider what amounts to a “change in circumstances” and noted:

In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material [para 26].

In the present case the court accepted that a change in the trial date, arising from severance of the accused, and other delays, such that the accused may spend more time in custody then they would even if convicted, is a material one. In so concluding the court cited the following comments of Hill J in R v White, 2010 ONSC 3164:

[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted [para 10].

Interpreting section 522 as permitting a second bail hearing where there is not a material change in circumstances is, with respect, not the most compelling work of statutory interpretation. Indeed, in the past there has been divide about the proper interpretation. The Court of Appeal has clearly endorsed, the “purposive” [read practical] interpretation which permits successive bail hearings in Superior Court (rather than reviews at the Court of Appeal) where there is a material change. Practical, indeed, but precisely interpreted?

At any rate, at least in Ontario, there is no ambiguity; section 522 permits successive bail hearings in Superior Court where there is a material change in circumstances.