Regina v. Hall; Attorney General of Canada et al.,
Intervenors* [Indexed as: R. v. Hall]
50 O.R. (3d) 257
[2000] O.J. No. 3188
Docket No. C33149
Court of Appeal for Ontario
Osborne A.C.J.O., Finlayson and Labrosse JJ.A.
September 1, 2000
* An appeal from the following judgment of the Court of Appeal for Ontario to the Supreme Court of Canada (McLachlin C.J., L’Heureux-Dub, Gonthier, Bastarache, Binnie, Iacobucci, Major, Arbour and LeBel JJ.) was dismissed October 10, 2002. The full text of the appeal is available at [2002] S.C.J. No. 65 (2002 SCC 64) in the SCJ database.
Criminal law — Bail — Detention before trial — Accused challenging constitutionality of tertiary ground in s. 515(10) (c) of Criminal Code allowing for detention based on “other just cause” — Tertiary ground not void for vagueness nor overbroad — Section 515(10)(c) not violating s. 11(e) of Charter — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10)(c) — Canadian Charter of Rights and Freedoms, s. 11(3).
The accused, who was charged with first degree murder, sought to be released from custody pending his trial. The judge who heard his bail application was satisfied that his detention was not necessary to ensure his attendance in court or for the protection or safety of the public. However, relying on s. 515(10)(c) of the Criminal Code, R.S.C. 1985, c. C-46, he concluded that the accused’s detention was necessary in order to maintain confidence in the administration of justice. The accused brought an application for habeas corpus and an application for release pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms and s. 52 of the Constitution Act, 1982. He sought to have s. 515(10)(c) of the Code declared unconstitutional. The application was dismissed. The accused appealed.
Held, the appeal should be dismissed.
Section 11(e) of the Charter guarantees that reasonable bail will not be denied “without just cause”. Just cause will exist if the denial of bail can occur only in a narrow set of circumstances and if the denial is necessary to promote the proper functioning of the bail system. Section 515(10)(c) limits the denial of bail to a narrow set of circumstances and provides for the denial of bail for a purpose related to the proper functioning of the bail system. In using the broad language “without just cause”, the drafters of the Charter intended to leave it open to Parliament to develop grounds which could justify detention beyond the first and second grounds, now set out in s. 515(10)(a) and (b), provided that any further basis for detention met the “just cause” constitutional standard. The drafters of the Charter did not intend to limit the grounds for detention to the first and second grounds.
To operate effectively, the administration of justice must have the confidence of a reasonably informed public, which accepts the presumption of innocence and the need to release accused persons pending trial, unless their detention is necessary. The need to maintain confidence in the administration of criminal justice is a value which falls within the ambit of “just cause” in s. 11(e) of the Charter.
The term “confidence in the administration of justice” has been given a workable meaning by the courts. It is significant that Parliament did not simply provide in s. 515(10)(c) that an accused could be detained where “necessary in order to maintain confidence in the administration of justice”. First, for an accused to be detained under any of s. 515(10)(a), (b) or (c) the accused’s detention must be “necessary”. Second, Parliament went on to provide guidance by identifying specific factors to be considered by judges when dealing with bail applications. By providing a list of relevant factors to be considered in s. 515(10)(c), Parliament has provided sufficient direction to afford guidance for informed legal debate. Section 515(10)(c) is not void for vagueness.
Since the bail system is one of the many components of the criminal justice system, it follows that decisions on bail have the real capacity to affect confidence in the administration of justice and in the bail system itself. Maintaining confidence in the administration of justice is not a value extraneous to the bail system.
The impugned provisions of s. 515(10)(c) do not represent a re-enactment of the “public interest” ground for detention rejected by the Supreme Court of Canada as being unconstitutionally vague.
R. v. MacDougal (1999), 178 D.L.R. (4th) 227, 67 C.R.R. (2d) 17, 138 C.C.C. (3d) 38, 27 C.R. (5th) 340 (B.C.C.A.); R. v. Morales, [1992] 3 S.C.R. 711, 144 N.R. 176, 12 C.R.R. (2d) 31, 77 C.C.C. (3d) 91, 17 C.R. (4th) 74; R. v. Pearson, [1992] 3 S.C.R. 665, 144 N.R. 243, 12 C.R.R. (2d) 1, 77 C.C.C. (3d) 124, 17 C.R. (4th) 1, apld Other cases referred to Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, 182 N.B.R. (2d) 81, 139 D.L.R. (4th) 385, 203 N.R. 169, 463 A.P.R. 81, 39 C.R.R. (2d) 189, 110 C.C.C. (3d) 193, 2 C.R. (5th) 1; MacKeigan v. Hickman, [1989] 2 S.C.R. 796, 94 N.S.R. (2d) 1, 61 D.L.R. (4th) 688, 100 N.R. 81, 247 A.P.R. 1, 50 C.C.C. (3d) 449, 72 C.R. (3d) 129 (sub nom. MacKeigan v. Royal Commission (Marshall Inquiry)); R. v. Conway, [1989] 1 S.C.R. 1659, 34 O.A.C. 165, 96 N.R. 241, 40 C.R.R. 1, 49 C.C.C. (3d) 289, 70 C.R. (3d) 209; R. v. Dakin, [1989] O.J. No. 1348 (Ont. C.A.); R. v. E. (B.) (1999), 68 C.R.R. (2d) 189, 139 C.C.C. (3d) 100, 29 C.R. (5th) 57 (Ont. C.A.); R. v. Farinacci (1993), 86 C.C.C. (3d) 32, 25 C.R. (4th) 350, 18 C.R.R. (2d) 298, 109 D.L.R. (4th) 97 (Ont. C.A.); R. v. Heywood, [1994] 3 S.C.R. 761, 120 D.L.R. (4th) 348, 174 N.R. 81, 24 C.R.R. (2d) 189, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133; R. v. Nova Scoti a Pharmaceutical Society, [1992] 2 S.C.R. 606, 114 N.S.R. (2d) 91, 93 D.L.R. (4th) 36, 139 N.R. 241, 313 A.P.R. 91, 10 C.R.R. (2d) 34, 74 C.C.C. (3d) 289, 43 C.P.R. (3d) 1, 15 C.R. (4th) 1; Reference re Criminal Code ss. 193 and 195.1(1)(c) (Manitoba), [1990] 1 S.C.R. 1123, 68 Man. R. (2d) 1, 109 N.R. 81, [1990] 4 W.W.R. 481, 48 C.R.R. 1, 56 C.C.C. (3d) 65, 77 C.R. (3d) 1; Reference re Electoral Boundaries Commission Act (Saskatchewan), [1991] 2 S.C.R. 158, 94 Sask. R. 161, 81 D.L.R. (4th) 16, 127 N.R. 1, [1991] 5 W.W.R. 1, 5 C.R.R. (2d) 1 (sub nom. Provincial Electoral Boundaries (Saskatchewan) (Re), Carter v. Saskatchewan (Attorney General)); Valente v. R., [1985] 2 S.C.R. 673, 14 O.A.C. 79, 24 D.L.R. (4th) 161, 64 N.R. 1, 19 C.R.R. 354, 23 C.C.C. (3d) 193, 49 C.R. (3d) 97, 37 M.V.R. 9
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 1, 11(e), 24(1) Constitution Act, 1982, s. 52 Criminal Code, R.S.C. 1985, c. C-46, ss. 486(1), 515(10), 784(3) Criminal Law Improvement Act, 1997, S.C. 1997, c. 18
APPEAL from an order dismissing an application for habeas corpus and for remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms and s. 52 of the Constitution Act, 1982.
John R. Norris, for appellant.
Eric H. Siebenmorgen, for respondent.
Peter De Freitas, for Attorney General of Canada, intervenor. Louis P. Strezos, for Criminal Lawyers’ Association of Ontario, intervenor.
The judgment of the court was delivered by
OSBORNE A.C.J.O.: —
Overview
[1] The appellant was charged with first degree murder [See Note 1 at end of document] and sought to be released from custody pending his trial. His application for bail was heard by the Honourable Mr. Justice Bolan who was satisfied that the appellant’s detention was not necessary to ensure his attendance in court or for the protection or safety of the public. However, relying on s. 515(10)(c) of the Criminal Code, R.S.C. 1985, c. C-46, he concluded that the appellant’s detention was necessary in order to maintain confidence in the administration of justice. He thus dismissed the appellant’s application for bail. In doing so, he considered the strength of the Crown’s case, and the gravity of the offence, including the circumstances of its commission. He also referred to fear that had been expressed by the general Sault Ste. Marie community.
[2] Following Bolan J.’s decision denying the appellant bail, the appellant commenced habeas corpus proceedings and an application for his release pursuant to s. 24(1) of the Charter and s. 52 of the Constitution Act, 1982. In his application he sought to have s. 515(10)(c) of the Criminal Code declared unconstitutional. The Honourable Mr. Justice Caputo dismissed the appellant’s application. He concluded that s. 515(10)(c) does not contravene s. 11(e) of the Charter and is not vague or overbroad. This appeal is from Caputo J.’s order and raises the issue of the constitutionality of that part of s. 515(10)(c) which provides for the detention of an accused person in circumstances where the judge before whom a bail application is heard concludes that detention is necessary “in order to maintain confidence in the administration of justice” (s. 515(10)(c)).
Factual Background
[3] The body of Peggy Jo Barkley-Dube was found on the morning of May 3, 1999 on the kitchen floor of her home in a residential area of Sault Ste. Marie. Ms. Dube was pronounced dead at the scene. The cause of her death was determined to be a massive haemorrhage due to a number of lacerations. The forensic pathologist who conducted the autopsy noted 37 separate slashing type wounds to Ms. Dube’s hands, forearms, shoulder, neck and face. Her neck had been cut completely through to the vertebrae. There was medical evidence that the person who assaulted Ms. Dube had intended to cut her head off.
[4] The appellant, a close acquaintance and second cousin of the deceased’s husband, was arrested on June 4, 1999 and charged with the first degree murder of Ms. Dube. He has been in custody since then.
[5] The circumstantial evidence against the appellant as set out at his June 16, 1999 bail hearing included the following:
— a number of areas in the deceased’s home, including the basement, contained traces of the appellant’s blood;
— several footprint impressions, all from the same type of running shoe, containing the deceased’s blood were found in the dining room and kitchen of the deceased’s residence.
According to two experts, some of the footprints had been left by the appellant’s shoes which were discovered under a table in the back corner of the basement workshop area used by the appellant in his parents’ home;
— a surveillance video from a local convenience store showed the appellant on the night of the homicide, wearing white running shoes with black marking on the toes and soles that matched the markings on running shoes seized from his parents’ home;
— the appellant admitted to the police that he had been in the convenience store on the night of the homicide, but said that he had been wearing black running shoes.
[6] At the time of his arrest, the appellant was 27 years old, married with two children. He was employed in the delicatessen department of a local grocery store. He was about to start new employment in Ottawa. There was evidence at the bail hearing that the appellant is a loving husband and father, with no history of violence, mental illness or psychological problems. He has no criminal record.
[7] The deceased’s death received considerable media attention in Sault Ste. Marie. The evidence disclosed that there was great public concern about the brutal homicide. The police officer in charge of the investigation testified that there was a general sense of fear in Sault Ste. Marie that the person who had committed such a heinous crime could be at large. The deceased’s father testified that his wife and three other daughters were petrified and fearful since the murder.
Section 515(10)(c)
[8] In R. v. Morales, [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91, the Supreme Court of Canada held that the “public interest” component of what was then s. 515(10)(b) of the Criminal Code did not represent a constitutional basis upon which to detain accused persons pending their trial because the “public interest” ground for detention was impermissibly vague and overbroad.
[9] After Morales, until June 1997, the denial of bail could only be justified on the basis that the accused’s detention was necessary to ensure that the accused would attend court when required to do so, or to protect the public.
[10] On April 25, 1997, Parliament responded to Morales by revisiting the grounds upon which an accused could be denied bail pending trial. At that time Parliament passed the Criminal Law Improvement Act, 1997, S.C. 1997, c. 18, an omnibus Act that amended a number of sections of the Criminal Code and related legislation. It introduced s. 515(10)(c) to replace the unconstitutional “public interest” ground for detention. The section now provides:
515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order 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 nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
[11] It is apparent that s. 515(10)(c) provides that an accused may be detained under the broad umbrella of “just cause” where detention is “necessary in order to maintain confidence in the administration of justice.” The new section directs the bail judge to consider all the circumstances, including:
— the strength of the Crown’s case;
— the gravity of the nature of the offence;
— the circumstances surrounding the commission of the offence; and
— the potential for a lengthy term of imprisonment if the accused is convicted.
[12] While it took approximately five years after Morales for s. 515(10)(c) to be brought into effect, this was not because the issue was of little importance to legislators. The provision was originally before Parliament at its 1994-95 sitting, in response to proposals at the Uniform Law Conference (“ULC”) of 1993, less than a year after Morales. At the 1993 ULC, the delegations from three provinces (Saskatchewan, Quebec and Ontario) independently proposed amendments to the Criminal Code bail provisions that would add public confidence in the administration of justice as a ground for denying bail.
Saskatchewan and Quebec withdrew their proposals in favour of Ontario’s, which recommended that an amendment be made to the Criminal Code adding a new ground for denying bail: namely, that releasing the accused, in light of the gravity of the offence and the strength of the Crown’s case, would tend to bring the administration of justice into disrepute. Ultimately, this proposal, which was carried unanimously:
That Federal Justice study expeditiously the secondary ground as applied to bail decisions in light of the decision in Pearson and Morales so that recommendations could be made for legislation.
[13] What eventually became s. 515(10)(c) was included in an omnibus bill (C-118). The bill received first reading, but Parliament was prorogued and as a result the bill died. However, when Parliament resumed, the provision was re- introduced as part of Bill C-17, and, as I have said, was duly enacted as part of the Criminal Law Improvement Act.
The Appellant’s Bail Application
[14] Bolan J. found that the appellant’s detention was not necessary to secure his attendance in court or for the protection and safety of the public. However, he concluded that the appellant’s detention was necessary in order to maintain confidence in the administration of justice and, relying on s. 515(10)(c), he dismissed the appellant’s application. As I have noted, he specifically referred to fears and concerns that had been expressed by members in the general Sault Ste. Marie community, the gravity of the offence, the apparent strength of the Crown’s case and the horrific circumstances of the homicide. He felt that the strongest evidence against the appellant came from an expert who said that the footprints in the victim’s blood came from a pair of shoes owned by the appellant and found in the appellant’s father’s residence.
The appellant’s application for habeas corpus and relief under s. 24(1) of the Charter
[15] On August 31, 1999, the appellant applied for habeas corpus and relief pursuant to s. 24(1) of the Charter. He also sought a declaration that s. 515(10)(c) of the Criminal Code violated s. 11(e) of the Charter and was therefore of no force and effect. The appellant raised two issues. First, he submitted that s. 515(10)(c) provides for the denial of bail without “just cause” contrary to s. 11(e) of the Charter, as that constitutional right was defined by the Supreme Court of Canada and, second, that s. 515(10)(c) is impermissibly vague and overbroad and thus provides for the denial of bail without just cause, again contrary to s. 11(e) of the Charter.
[16] Caputo J. ([1999] O.J. No. 4565) held that s. 515(10)(c) of the Criminal Code was not vague or overbroad and thus complies with the “just cause” requirement for the denial of bail in s. 11(e) of the Charter. He relied on R. v. Pearson, [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124 and R. v. Morales, supra, where Lamer C.J.C. held that the restriction on the basic entitlement to bail is constitutionally valid if the following conditions are met:
— Bail is denied only in a narrow set of circumstances.
— The denial of bail is necessary for the proper functioning of the bail system and is not undertaken for any purpose extraneous to the bail system.
Caputo J. concluded that s. 515(10)(c) satisfied the above two part test for just cause as established in Pearson and Morales.
[17] In reaching this conclusion, Caputo J. relied on the British Columbia Court of Appeal’s decision in R. v. MacDougal (1999), 138 C.C.C. (3d) 38, 67 C.R.R. (2d) 17, the first direct challenge to Parliament’s 1997 response to the Supreme Court of Canada judgment in Pearson and Morales. In MacDougal, Hall J.A. concluded that s. 515(10)(c) was not vague or overbroad. He stated that by delineating a list of relevant factors to be considered in s. 515(10)(c), Parliament had provided sufficient direction to afford guidance for informed legal debate.
[18] Caputo J. went on to hold that s. 515(10)(c) satisfied the second Morales test since it provided for the denial of bail for a purpose related to the promotion and proper functioning of the bail system. He concluded that maintaining confidence in the administration of justice is necessary to the proper functioning of the bail system which is an integral component of the criminal justice system. He relied on Cory J.’s observations in MacKeigan v. Hickman, [1989] 2 S.C.R. 796 at p. 846, 94 N.S.R. (2d) 1, that “without public confidence, the courts cannot effectively fulfil their role in society”. He also relied on Le Dain J.’s statement in Valente v. R., [1985] 2 S.C.R. 673 at p. 689, 19 C.R.R. 354, that “without that [public] confidence, the system cannot command the respect and acceptance that are essential to its effective operation.” Finally, he concluded that the rule of law depends on a credible justice system which includes bail.
[19] The appellant appealed to this court pursuant to s. 784(3) of the Criminal Code from the order dismissing his application for habeas corpus and relief under s. 24(1) of the Charter. The constitutional issue which this court must address is whether that part of s. 515(10)(c), on which Bolan J., the bail judge, relied in denying bail, meets the constitutional standard for the denial of bail set out in s. 11(e) of the Charter.
[20] The broad constitutional issue has two distinct, albeit related, components. First, whether s. 515(10)(c) meets the “just cause”, constitutionally mandated standard for the denial of bail and second, whether s. 515(10)(c) is vague or overbroad and thus unconstitutional on that basis.
(a) Statutory Charter provisions
[21] The relevant Charter provisions are:
Canadian Charter of Rights and Freedoms
11. Any person charged with an offence has the right
. . . . .
(e) not to be denied reasonable bail without just cause;
. . . . .
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Constitution Act, 1982
52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
[22] Section 515(10) of the Criminal Code sets out a system of pre-trial release under which an accused must normally be granted bail. There are three statutorily prescribed grounds set out in s. 515(10) under which pre-trial detention of an accused may be justified. The first ground, set out in s. 515(10)(a), is that “detention is necessary to ensure [the accused’s] attendance in court in order to be dealt with according to law”. The second ground, set out in s. 515(10)(b), is that “detention is necessary for the protection or safety of the public, including any victim of or witness to the offences, having regard to all of the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.” The validity of these two grounds for detention is not in issue on this appeal.
[23] The third ground for detention is in issue on this appeal. As noted, it provides for detention if “any other just cause” is shown. Any other just cause in s. 515(10)(c) may include the need to maintain confidence in the administration of justice.
(b) The positions of the appellant, respondent and intervenors
[24] The appellant’s position on the issue of the permissible scope of “just cause” is that there can be “just cause” for pre-trial detention consistent with s. 11(e) of the Charter only if detention is necessary to ensure the accused’s attendance in court or to protect the public. The appellant relies on Pearson and Morales to support this submission which is central to his position on the “just cause” issue. The appellant contends that limiting the grounds for detention to the grounds set out in s. 515(10)(a) and (b) is the only way to ensure that the basis for pre-trial detention could promote the proper functioning of the bail system, the first of the two controlling principles established by Lamer C.J.C. in Pearson and Morales. The appellant also submits that s. 515(10)(c) “is a transparent attempt to revive the public interest component of the former s. 515(10)(b) that was struck down in Morales[ cf1] as unconstitutional.” As part of this submission, the appellant contends that Morales determined that maintaining confidence in the administration of justice did not provide a constitutional basis upon which to deny trial bail.
[25] The appellant also takes issue with Caputo J.’s conclusion that maintaining confidence in the administration of justice was necessary to the proper functioning of the bail system, which he found to be an integral component of the broader criminal justice system. The appellant takes it further in submitting that s. 515(10)(c) permits detention based on factors “at odds not only with the proper functioning of the bail system but with the presumption of innocence itself.” Apart from the just cause issue, the appellant contends that the basis for the denial of bail set out in s. 515(10)(c) is vague and overbroad and thus unconstitutional.
[26] In his vagueness submission, the appellant contends that by authorizing the denial of bail for an accused “on any other just cause being shown,” s. 515(10)(c) does not provide for the denial of bail only in a narrow set of circumstances. However, Caputo J. correctly noted that the phrase “any other just cause,” in s. 515(10)(c) was not used as a basis for Bolan J.’s finding of just cause to detain the appellant. At para. 56, Caputo J. said:
In any event, in this case “any other just cause” was not resorted to as a basis for finding just cause to detain. I will leave it to a higher authority to determine whether if [sic] the offending words “any other just cause are too vague,” the section would be read down. If necessary, I would do so.
[27] Since Bolan J., in dismissing the appellant’s application for release pending his trial, did not resort to “any other just cause” in s. 515(10)(c) as a basis for detaining the accused, I do not think the constitutionality of this part of s. 515(10)(c) should be addressed on this appeal. This is consistent with La Forest J.’s comments in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, 110 C.C.C. (3d) 193 where he stated, at pp. 492-93 S.C.R., p. 201 C.C.C.:
This Court has in the past exhibited a reluctance to consider the constitutionality of legislative provisions in the absence of a proper factual foundation. . . . To accede to the appellant’s contention that other grounds be constitutionally reviewed would require us to conduct such review in the absence of a factual framework, contrary to this Court’s practice. Moreover, it would be dangerous to make a determination of the constitutionality of the other two grounds for exclusion under s. 486(1) by extrapolation from the constitutional review of the proper administration of justice ground; the values and interests invoked may differ depending upon the specific legislative context. It is best, then, to leave to another day the constitutionality of the other two statutory grounds for exclusion, and to focus solely on the ground relied on by Rice Prov. Ct. J., i.e., the proper administration of justice. See also R. v. E. (B.) (1999), 139 C.C.C. (3d) 100 at p. 111, 68 C.R.R. (2d) 189 (Ont. C.A.).
[28] The intervenor, the Criminal Lawyers’ Association (Ontario) (“CLA”), supports the appellant’s submissions on the “just cause” part of the required constitutional analysis. In summary form, the CLA’s position is that to the extent that s. 515(10)(c) authorizes the denial of bail to an accused who satisfies the criteria set out in s. 515(10)(a) and (b) (as the appellant did), s. 515(10)(c) is inconsistent with s. 11(e) of the Charter. The CLA also supports the appellant’s submission that s. 515(10)(c) is vague and overbroad. Both the appellant and the CLA submit that the s. 515(10)(c) limitation on an accused’s rights to bail cannot be justified under s. 1 of the Charter.
[29] The respondent Attorney General of Ontario (“Ontario”) submits that Caputo J. was correct in holding that s. 515(10) (c) of the Criminal Code complies with the “just cause” requirement for the denial of bail in s. 11(e) of the Charter since it provides for the denial of bail for a purpose related to the proper functioning of the bail system and limits the denial of bail to a “narrow set of circumstances”. Ontario contends that neither the Charter nor the Supreme Court of Canada’s decision in Morales have the effect of limiting “just cause” to the primary and secondary grounds for detention set out in s. 515(10)(a) and (b) of the Criminal Code and that that part of s. 515(10)(c) on which Bolan J. relied in denying bail is neither vague nor overbroad.
[30] The Attorney General of Canada (“Canada”), also an intervenor, supports the position of Ontario that Caputo J. did not err in dismissing the appellant’s challenge to the constitutionality of the legislation in question. Like Ontario, Canada submits that the Supreme Court of Canada’s decisions in Pearson and Morales do not preclude Parliament from enacting legislation that imposes a basis for pre-trial detention beyond the traditional primary and secondary grounds (s. 515(10)(a) and (b)). Canada submits that s. 515(10)(c) does not infringe the just cause requirement of s. 11(e) of the Charter and provides the court with a structured discretion that is capable of judicial interpretation. Therefore, Canada submits that the section is neither vague nor overbroad.
Analysis
(i) Does s. 515(10)(c) provide for the denial of bail without just cause?
[31] In Pearson and Morales, the Supreme Court considered the context and application of s. 11(e) of the Charter. The court held in Pearson, at p. 693 S.C.R., p. 143 C.C.C., and confirmed in Morales at p. 726 S.C.R., p. 99 C.C.C., that “there will be just cause for denial of bail if the denial can occur only in a narrow set of circumstances and if the denial is necessary to promote the proper functioning of the bail system.” For reasons that follow, I think that s. 515(10)(c) limits the denial of bail to a “narrow set of circumstances” and provides for the denial of bail for a purpose related to the proper functioning of the bail system. Accordingly, in my opinion, Caputo J. did not err in holding that s. 515(10)(c) of the Criminal Code complies with the “just cause” requirement for the denial of bail set out in s. 11(e) of the Charter.
(ii) The meaning of “just cause” in s. 11(e) of the Charter
[32] Section 11(e) of the Charter guarantees that reasonable bail is not to be denied “without just cause”. In my opinion, in using this manifestly general language, the drafters of the Charter intended to leave it open to Parliament to develop grounds which could justify detention beyond the first and second grounds, now set out in s. 515(10)(a) and (b), provided, of course, that any further basis for detention met the “just cause” constitutional standard in s. 11(e) of the Charter. This is consistent with the perception of the Charter being a broad constitutional instrument, sometimes described as a “living tree”. [See Note 2 at end of document]
[33] It seems to me that had the drafters of the Charter intended to limit the grounds for detention to the first and second grounds (s. 515(10)(a) and (b)), the Charter would have said so. Instead, the drafters of the Charter used broader language, to provide that an accused had the right “not to be denied reasonable bail without just cause.”
[34] Furthermore, I see nothing in either Pearson or Morales that would freeze the bases for the denial of bail to the first and second grounds — to secure the accused’s attendance in court and the need to protect the public. In making what I view as intentionally general statements on the scope of “just cause”, Lamer C.J.C. in Morales conspicuously did not say that no ground for detention beyond the primary and secondary grounds could meet the constitutional “just cause” standard. Instead, he made the broad pronouncement that to meet the “just cause” constitutional standard, the denial of bail must occur in a narrow set of circumstances and must be necessary to promote the proper functioning of the bail system and not undertaken for any purpose extraneous to the bail system.
[35] In my view, had Lamer C.J.C. concluded in Morales that the s. 11(e) Charter “just cause” requirement meant that an accused could be denied bail only when it was necessary to secure his attendance at trial (s. 515(10)(a)) or to protect the public (s. 515(10)(b)), he would have said so, or at least responded to Gonthier J.’s dissenting reasons which rejected the notion that there could only be a constitutionally valid denial of bail if the court found detention was necessary to secure the accused’s attendance in court or to protect the public. He emphasized, in considering the “public interest” ground for detention, the importance of there being room for the development of grounds for denying bail. He said, at p. 759 S.C.R., pp. 122-23 C.C.C.:
Also important is the consideration that the criterion of necessity in the public interest is capable of encompassing circumstances which have not been foreseen or, indeed, which may be unforeseeable, yet when they occur, albeit rarely, they obviously make the detention necessary and undoubtedly provide just cause for denying bail within the meaning of s. 11(e) of the Charter. The courts must be able to deal with such circumstances. The good governance of society and the rule of law itself require that Parliament be allowed to provide for social peace and order even in unforeseen circumstances. The appropriate instrument for doing this is through the administration of justice by the courts and allowing them a measure of discretion which they are bound to exercise judicially, that is, for reasons that are relevant, within the limits provided by law and in accordance with the Charter.
[36] As a general proposition, I think that it is consistent with both the Charter and Lamer C.J.C.’s majority reasons in Morales, that the list of grounds which may constitute “just cause” are not frozen, that is limited to the primary and secondary grounds for the denial of bail set out in s. 515(10)
(a) and (b).
[37] With the advent of the Charter, the administration of justice has inevitably, and I think rightly, been exposed to an increased public scrutiny. To operate effectively, the administration of justice must have the confidence of a reasonably informed public, which accepts the presumption of innocence and the need to release accused persons pending trial, unless their detention is necessary. See Valente v. R., [1985] 2 S.C.R. 673 at p. 689; R. v. Conway, [1989] 1 S.C.R., 1659 at pp. 1167-68, 49 C.C.C. (3d) 289 at p. 302; MacKeigan v. Hickman, supra, at p. 846.
[38] In my view, the need to maintain confidence in the administration of criminal justice is a value which falls within the ambit of “just cause” in s. 11(e) of the Charter. Recognizing this value works to promote the proper functioning of the bail system. It remains to be determined whether that ground for detention is impermissibly vague and overbroad. I now turn to those related issues.
(iii) Narrow set of circumstances — vagueness and overbreadth
[39] The appellant submits that s. 515(10)(c) is defective because it is vague and overbroad. The doctrines of vagueness and overbreadth have been thoroughly reviewed in several decisions of the Supreme Court of Canada. In R. v. Heywood, [1994] 3 S.C.R. 761 at p. 764, 94 C.C.C. (3d) 481 at p. 516, Cory J. explained the distinction between vagueness and overbreadth:
Overbreadth and vagueness are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means are not clearly defined. In the case of overbreadth the means are too sweeping in relation to the objective.
[40] He then, for the majority, set out the test for determining when a statute is overbroad:
Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: Are those means necessary to achieve the state objective? If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual’s rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.
[41] In R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 74 C.C.C. (3d) 289, Gonthier J. considered the issue of vagueness as a constitutional requirement. He noted that a valid law (that is a law that is not impermissibly vague) must provide a sufficient basis for legal debate. He stated at p. 642 S.C.R., p. 313 C.C.C.:
What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled. Once more, an unpermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements. In giving unfettered discretion, it will deprive the judiciary of means of controlling the exercise of this discretion.
[42] Gonthier J. also made it clear that overbreadth is no more than an analytical tool, that is it has no independent existence. He put it this way, at p. 632 S.C.R., p. 306 C.C.C.:
What is referred to as “overbreadth”, whether it stems from the vagueness of a law or from another source, remains no more than an analytical tool to establish a violation of a Charter right. Overbreadth has no independent existence. References to a “doctrine of overbreadth” are superfluous.
[43] In addressing the content of the doctrine of vagueness, Gonthier J. explained that vagueness in its constitutional context has two underlying rationales — fair notice of acceptable or prohibited conduct and the limitation of enforcement discretion. In dealing with “fair notice” he said, at p. 635 S.C.R., p. 308 C.C.C.:
Fair notice may not have been given when enactments are in somewhat general terms, in a way that does not readily permit citizens to be aware of their substance, when they do not relate to any element of the substratum of values held by society. . . .
Hence, aside from a formal aspect which is in our current system often presumed, fair notice to the citizen comprises a substantive aspect, that is an understanding that certain conduct is the subject of legal restrictions.
[44] Since the Criminal Code provision in issue does not prohibit any particular form of conduct, the fair notice rationale for vagueness is of reduced significance. Nonetheless, the statutory criteria for denying bail cannot be vague or imprecise since such deficiencies would, according to Morales, result in the provision not meeting the “just cause” constitutional standard set out in s. 11(e) of the Charter. The legislation must provide the judiciary with a workable standard, but not a standard of certainty. That is to say the legislation does not have to be so precise that the legal consequences of given conduct can be predicted in advance with absolute certainty: see Nova Scotia Pharmaceutical, supra, at p. 639 S.C.R., p. 311 C.C.C.
[45] In addition, the legislation in question must provide some reasonably structured guidance for legal debate and to the judiciary. In Nova Scotia Pharmaceutical, supra, Gonthier J. in summary form said, at p. 643 S.C.R., pp. 313-14 C.C.C.:
The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. This statement of the doctrine best conforms to the dictates of the rule of law in the modern state, and it reflects the prevailing argumentative, adversarial framework for the administration of justice.
(iv) Necessary in order to maintain confidence in the administration of justice
[46] I accept that the term “confidence in the administration of justice” is open to interpretation. However, this does not render s. 515(10)(c) void for vagueness since the Supreme Court of Canada has held that “[t]he fact that a particular legislative term is open to varying interpretations by the courts is not fatal”: see Reference re Criminal Code ss. 193 and 195.1(1)(c) (Manitoba), [1990] 1 S.C.R. 1123 at p. 1157, 48 C.R.R. 1 (“Prostitution Reference”).
[47] In my opinion, the term “confidence in the administration of justice” has been given a workable meaning by the courts. The phrase “administration of justice” has been the subject of judicial interpretation in a number of contexts. For example, in Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, 110 C.C.C. (3d) 193 the Supreme Court of Canada dismissed a constitutional challenge to s. 486(1) of the Code. In ruling that the administration of justice provision was not overbroad since it provides the judiciary with a workable standard, La Forest J. considered the meaning to be given to the term “proper administration of justice”. He said at p. 511 S.C.R., p. 214 C.C.C.:
The phrase “administration of justice” appears throughout legislation in Canada, including the Charter. Thus, “proper administration of justice”, which of necessity has been the subject of judicial interpretation, provides the judiciary with a workable standard.
[48] In R. v. Farinacci (1993), 86 C.C.C. (3d) 32, 18 C.R.R. (2d) 298 (Ont. C.A.), Arbour J.A. considered the “public interest” standard for denying bail pending appeal in the context of public confidence in the administration of justice. She said, at p. 48:
Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail.
It is, I think, significant that Parliament did not simply provide in s. 515(10)(c) that an accused could be detained where “necessary in order to maintain confidence in the administration of justice.” First, for an accused to be detained under any of s. 515(10)(a), (b) or (c) the accused’s detention must be “necessary”. Second, Parliament went on to provide guidance by identifying specific factors to be considered by judges when dealing with bail applications. In MacDougal, supra, Hall J.A. concluded that the inclusion of the specific factors to be considered in making a decision about pre-trial release or detention militates against finding that the legislation is vague or overbroad. He said, at p. 46:
The question is, is the present provision framed in sufficiently specific language to save it from being found too vague or overbroad?
It is to be noted that Parliament did not simply provide in the new section that a person could be detained only for “just cause”. Parliament went on to provide that without limiting the generality of this terminology, there were to be considered various other criteria as set forth in the section. These criteria would fall to be considered by judges and lawyers dealing with specific bail applications.
[49] The significance of Parliament having identified a list of factors to be taken into account that may be considered is made clear by contrasting Morales and MacDougal. In Morales, the Supreme Court of Canada held that the third “public interest” ground for detention violated s. 11(e) of the Charter because it authorized a “standardless sweep”. Lamer C.J.C. put it this way, at p. 732 S.C.R., p. 103 C.C.C.:
The term provides no guidance for legal debate [and] authorizes a standardless sweep, as the court can order imprisonment whenever it sees fit . . . such unfettered discretion violates the doctrine of vagueness.
By contrast, in MacDougal, as I have noted above, Hall J.A. concluded that by providing a list of relevant factors to be considered in the new s. 515(10)(c), Parliament has provided sufficient direction to afford guidance for informed legal debate. Thus, he found that the new section satisfies the Nova Scotia Pharmaceutical vagueness test since it gave “. . . sufficient indication of how a decision must be reached.” He said, at p. 48:
In my judgment, Parliament has not left the legal profession and the judiciary without a road map to use in the interpretation of s. 515(10)(c). The provisions of the section appear to me to require the Crown at a bail hearing to establish a strong prima facie case of very bad conduct resulting in serious harm or the potential for serious harm. In such circumstances, there would usually exist a strong likelihood that a significant sentence would be imposed on a person found guilty of such conduct. I believe that by delineating the list of relevant factors to be considered in the section under review, Parliament has provided sufficient direction to afford guidance for informed legal debate. That, as I noted above, is the standard formulated by the Supreme Court of Canada as being necessary to sustain legislation. I believe lawyers and judges have been afforded sufficient tools to argue and decide specific cases. Hence, I would not conclude that this legislation is either vague or ove rbroad. (Emphasis added)
[50] I agree with Hall J.’s conclusion on the issue whether s. 515(10)(c) is vague or overbroad. Section 515(10)(c) provides sufficient direction to afford guidance for informed legal debate and is not void for vagueness.
(v) Necessary to promote the proper functioning of the bail system
[51] Caputo J. held that s. 515(10)(c) satisfies the second part of the Morales test because it provides for the detention of bail for a purpose related to the promotion of the proper functioning of the bail system. In reaching that conclusion, he referred to several Supreme Court of Canada decisions in support of the proposition that public confidence in the administration of justice is necessary to the effective operation of the criminal justice system. [See Note 3 at end of document]
[52] I agree with Caputo J. that “the criminal justice system includes bail”. Since the bail system is one of the many components of the criminal justice system, it inevitably follows that decisions on bail have the real capacity to affect confidence in the administration of justice and in the bail system itself. In my opinion, maintaining confidence in the administration of justice, is not a value “extraneous” to the bail system.
[53] I acknowledge that public confidence in the administration of justice (including the bail system) will normally be maintained and enhanced by the pre-trial release of an accused who will attend court when required to do so and who, while on release, will not endanger the public. There are, however, cases such as R. v. Dakin, a judgment of the Ontario Court of Appeal, delivered August 14, 1989, [1989] O.J. No. 1348, and there will be cases in the future, where the public confidence in the administration of justice, having regard to the criteria identified in s. 515(10)(c), will be damaged by pre-trial release. When this is the case, the bail system can only function properly if the courts are given the power to deny bail.
[54] Finally, I do not think that the provisions of s. 515(10)(c) in issue represent an re-enactment of the “public interest” ground for detention rejected by the Supreme Court of Canada in Morales as being impermissibly vague in the constitutional sense. Contrary to the appellant’s submission, in my opinion, the Supreme Court of Canada in Morales did not hold that “to maintain a confidence in the administration of justice”, on its own was impermissibly vague, in that it authorized a “standardless sweep”. The court referred to that expression as an illustration of one of its formulations that courts used to give meaning to the term “public interest”. I think, therefore, that pre-Morales decisions such as this court’s judgment in R. v. Dakin, supra, remain relevant to the question whether the impugned language is sufficiently precise to give guidance for legal debate.
Conclusion
[55] For these reasons, I think Caputo J. was correct in holding that s. 515(10)(c) of the Criminal Code complies with the “just cause” requirement for the denial of bail set out in s. 11(e) of the Charter and is not constitutionally defective because it is vague or overbroad. Thus, the answer to the constitutional question before us is that s. 515(10)(c), in so far as it permits the denial of bail where detention is necessary to maintain confidence in the administration of justice, does not violate s. 11(e) of the Charter. Since there is no violation of s. 11(e) it is not necessary to turn to s. 1 of the Charter.
[56] I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: After his bail hearing the appellant was discharged at his preliminary inquiry on the charge of first degree murder but committed to stand trial on the lesser included charge of second degree murder.
Note 2: In Reference re Electoral Boundaries Commission Act (Saskatchewan), [1991] 2 S.C.R. 158 at p. 180, 81 D.L.R. (4th) 16 at pp. 32-33, McLachlin J. stated: “The doctrine of the Constitution as a living tree mandates that narrow technical approaches are to be eschewed … It also suggests that the past plays a critical but non-exclusive role in determining the content of the rights and freedoms granted by the Charter. The tree is rooted in past and present institutions, but must be capable of growth to meet the future.”
Note 3: Caputo J. referred to Cory J.’s observation in MacKeigan v. Hickman, supra, at p. 846, that “[w]ithout public confidence, the courts cannot effectively fulfil their role in society”; and LeDain J.’s statement in Valente v. R., supra, at p. 689 that “without that [public] confidence, the system cannot command the respect and acceptance that are essential to its effective operation.”