Every St Cloud has a silver lining

St Cloud, along with two others, was alleged to have been the perpetrator of a violent and vicious assault against a City of Montreal bus driver. The incident was video recorded by the onboard surveillance system. Notwithstanding the intervention of passengers the attack continued- the driver was left with serious long-term injuries.

St Cloud sought bail. The Crown bore the onus. At the time of the initial bail hearing the medical prognosis for the victim was uncertain- he remained in hospital. The bail hearing Judge found that the Crown had discharged their onus on the secondary ground but nonetheless went on to consider whether detention was warranted on the tertiary ground.

The bail hearing judge explained that the tertiary ground “calls for an analysis of whether, at the end of the day, after all the circumstances are considered ... there is a reasonable collective expectation that interim release must be denied to maintain public confidence in the administration of justice.” [@para 13]

The bail hearing judge concluded in light of the videotape and all of the circumstances a public who is well-informed, dispassionate and reasonable would conclude that St Cloud’s detention was warranted on the tertiary ground.

At the conclusion of the preliminary hearing St Cloud made a renewed bid for his release.  The preliminary hearing judge concluded that in order to hear the application St Cloud first had to demonstrate a material change in circumstance- the judge accepted that a new release plan financially backed by the accused’s parents and the possibility of employment were sufficient for the Court to consider the application.

The preliminary hearing judge concluded that the new plan reduced the applicant’s risk of re-offending however on the tertiary ground the court concluded that the initial bail hearing judge was correct to detain on the basis that releasing St Cloud would erode the public’s confidence in the administration of justice. [@para 18]

St. Cloud applied pursuant to section 520 of the Code to the Superior Court for a review of the preliminary hearing judge’s denial of bail. Martin J concluded that both the initial bail hearing judge and the preliminary hearing judge had erred in their interpretation of the tertiary ground as they failed to consider that the crime although “repugnant, heinous and unjustifiable” was in fact explainable. [@para 23]

The Crown appealed: 2015 SCC 27 and the Supreme Court of Canada reviewed the correct approach to the tertiary ground for the first time the high court’s decision in R v Hall2002 SCC 64.

Wagner J writing for the Court first reviewed R v Hall and noted three significant areas of misinterpretation which have emerged in the jurisprudence post-Hall.

First, the facts in Hall were of a particularly heinous crime. A murder of a young woman who sustained 37 slash wounds during her attack.  The tertiary however does not require that the crime be heinous or horrific in order for the accused to be detained. In fact as Wagner J explained of Hall, “[t]he Court’s description of the crime as horrific, heinous and unexplained was simply an observation, a description of the facts considered by the Court in its analysis of s. 515(10) (c) Cr.C. It cannot be read as imposing conditions or prerequisites.” [@para 46]

Second, the Court in Hall referred to the crime as unexplained. This was of course a mere statement of fact about the circumstances of the case and not as Wagner J explained in St Cloud a criterion to be considered in applying the tertiary ground.

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). Apart from the fact that the provision itself does not even refer to such a criterion, I consider the concept ambiguous and confusing. What is meant by an “unexplainable” crime? Is it a crime against a random victim? A crime that could be committed only by a person who is not rational? An especially horrific crime?
Moreover, many crimes may be “explainable” in one way or another; for example, it may be that the assailant was provoked by the victim or that he or she had a mental illness or was intoxicated. From this perspective, the “unexplainable” crime criterion is of little assistance. [@paras 47-48]

Third, the infrequent application of the tertiary ground as a basis for detention is not a precondition to its application. As Wagner J explained, it is a consequence not a condition precedent.

I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice. How would such a criterion be assessed? Should justices consider how many cases have been heard (in their jurisdictions, in Canada, in the last year, etc.) and, at the same time, ensure that cases of detention based on s. 515(10) (c) will remain “rare” if they order detention in the cases before them? Should a justice review the cases in which detention has been ordered and determine whether the facts of the case before him or her are the same (or nearly the same) as the facts of those cases? In any event, it seems to me that a “rareness” of circumstances criterion would prompt justices to engage in a comparative exercise and thus to move away from the careful examination of the circumstances of individual cases that the situation requires. In my opinion, a comparative approach such as this could potentially undermine the public’s confidence in the administration of justice. [@para 52]

The Court then helpfully summarized the principles that must guide courts in applying the tertiary ground:

  • Section 515(10) (c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.
  • Section 515(10) (c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
  • The four circumstances listed in s. 515(10) (c) Cr.C. are not exhaustive.
  • A court must not order detention automatically even where the four listed circumstances support such a result.
  • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
  • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
  • No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. 
  • This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10) (c).
  • To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter  values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
  • This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [@para 87]

In light of the principles articulated above and the Superior Court’s erroneous reliance on the ‘explainable’ nature of the crime, the Court concluded that detention order should be restored.