Tyrone-Stewart v. Centre de détention de Montréal , 2007 QCCS 7015 (CanLII)
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[30] The Court has found no cases discussing the issue in the case at bar. Perhaps this is so because it is assumed by most people that an original bail hearing has to take place before the start of a preliminary inquiry.
[31] Justice Boyer was right when he decided that he was without jurisdiction to hear an original bail hearing pursuant to s. 515 of the Criminal Code after the completion of both preliminary inquiries where Mr. Stewart had been committed to trial.
[32] This would seem to be the logical interpretation to be given to s. 523(2)(b) of the Criminal Code.
[33] The modern approach to statutory interpretation supports this conclusion. As stated by the Supreme Court in CCH Canadian Ltd. v. Law Society of Upper Canada, courts should apply the modern approach to statutory interpretation whereby “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.
[34] In R. c. Aoude, our Court of Appeal stated that the judicial interim release regime of the Criminal Code is a coherent regime, albeit intellectually challenging, in the context of which the interpretation of any section of the legislative scheme should be made.
[35] The power granted to a justice, on the completion of the preliminary inquiry, to vacate any previous order would seem premised on the fact that a previous order has been made. This would seem to clearly encompass the original bail hearing under s. 515.
[36] While the judicial interim release part of the Criminal Code is notoriously complex, it seems that coming to the conclusion that an original bail hearing under s. 515 has to be held before the start of a preliminary inquiry is consistent and harmonious with the scheme of the judicial interim release part of the Criminal Code, its object, and the intention of Parliament.
[37] This interpretation also fosters the expeditious vindication of the constitutional right protected by s. 11 e) of the Charter. As stated by Gary Trotter, now Justice Trotter of the Ontario Superior Court, in The Law of Bail in Canada :
With time being such a monumental concern when it comes to bail, it is essential that a hearing is conducted as soon as possible.
[39] Chief Justice Lamer noted this in R. v. Pearson:
Most of the current bail provisions in the Criminal Code were enacted in the Bail Reform Act, S.C. 1970-71-72, c. 37. The Bail Reform Act established a basic entitlement to bail. Bail must be granted unless pre-trial detention is justified by the prosecution. In R. v. Bray reflex, (1983), 2 C.C.C. (3d) 325 (Ont. C.A.), at p. 328, Martin J.A. described the Bail Reform Act as "a liberal and enlightened system of pre-trial release". In my view, s. 11(e) transforms the basic entitlement of this liberal and enlightened system into a constitutional right. Section 11(e) creates a basic entitlement to be granted reasonable bail unless there is just cause to do otherwise.
[40] The least that can be said, Mr. Stewart has not been reasonably diligent in the pursuit of the constitutional right granted to him by s. 11 (e) of the Charter. We are here almost 9 months after his initial appearance and two months after the decision by Justice Boyer where he concluded that he was without jurisdiction to entertain an "original" bail hearing.
[41] By continuously consenting to an adjournment to his bail hearing up until June 12, 2007, Mr. Stewart made sure that the prosecution was never called to establish a just cause for his detention.
[42] While not waiving his right to a bail hearing, Mr. Stewart was detained pending either a bail hearing or other court appearances and was remanded to custody after each and every of his court appearances pursuant to either s. 516(2) or s.537(1) c) of the Criminal Code. He therefore consented to his continued detention.
[46] As noted by Justice Lamer, in Nelles v. Ontario:
When a person can demonstrate that one of his Charter rights has been infringed, access to a court of competent jurisdiction to seek a remedy is essential for the vindication of a constitutional wrong. To create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur.
[47] The prosecution has raised the issue of whether or not habeas corpus is the proper procedural vehicle to address the current situation.
[48] The issue is discussed by Gary Trotter in The Law of Bail in Canada.
[49] Trotter summarized the case law as follows:
Since Pearson, it is clear that habeas corpus is no longer available to address the issue of bail when the normal review mechanisms are available. However, habeas corpus still has a role to play in the law of bail. Indeed, the case of R. v. Jones, supra, is a perfect example of when it is appropriate to invoke the ancient writ. There habeas corpus was used to compel the State to provide the accused with the bail hearings to which they were entitled. As discussed in Chapter 8 (Bail Reviews), habeas corpus is used in this manner when an accused person who is entitled to a review under s. 525 has not been brought to court for this purpose. The writ of habeas corpus is also an appropriate mechanism by which to seek bail in circumstances where it is not available pursuant to a statute.
However, some of these uses of habeas corpus to obtain bail have been disappointing to litigants. While the courts have expanded the circumstances in which habeas corpus may be resorted to, they have correspondingly adjusted the remedial component of the writ. Habeas corpus is not a remedy that forces judges into the binary task of choosing between custody or detention. At times, the writ stops short of securing the detained person's discharge from custody. As Professor Kent Roach observes :
In summary, the Charter has accelerated the inclination of courts to expanded the liberty interests that are protected by habeas corpus and to be more flexible in its administration. These developments are consistent with the purposes of the Charter in ensuring both access to remedies and protecting a wide range of liberty interests.
Examples abound in the recent case law. In R. v. Gamble, supra, the Supreme Court declared the applicant to be eligible for parole, but stopped short of releasing her. In R. v. Pearson, supra, the accused was entitled to a new bail hearing in accordance with a constitutionally sound statute. In R. v. Jones, supra, instead of being released, the applicants were granted access to what they were entitled to (and what they complained they had been denied)- a new bail hearing under s. 515. In Mooring v. Canada (National Parole Board) (1996), the minority held that, had the appeal not been allowed, it would have been appropriate for the court to "exercise its discretion at common law" to remit the matter back to the original tribunal. Finally, in R. v. Pomfret (1990), discussed again in Chapter 8 (Bail Reviews).] habeas corpus was used to redress the failure to hold a hearing under s. 525 of the Criminal Code. The Court refused to order the release of the prisoner. The Court held that "[h]abeas corpus, in the circumstances of this case, results in the prisoner receiving that to which he is entitled to under the law, namely, a bail review hearing.
(Emphasis added)
(Citations omitted)
[50] Trotter concludes his analysis stating that the proper place for habeas corpus in the bail context is to deliver a fair process:
This is a reasonable response to the constitutional question. Given the broad mandate created for habeas corpus under the Charter, it must be responsive in a proportionate way in its new role. This born out in the cases cited above. None of the applicants in Gamble, Pearson, Mooring or Pomfret had a credible claim to immediate release. Each of these claims was focused on gaining access to an appropriate decision-making body acting in accordance with legislation that was constitutionally sound. That was the basis of their claim; that was the essence of the remedies provided or contemplated by the courts. Some were ultimately successful in securing their release before the appropriate tribunal; others were not. Habeas corpus ensured that the process worked.
This is not to say that release from custody is never appropriate in this context. Far from it. As the British Columbia Supreme Court in Vukelich v. Vancouver Pre-trial Centre observed, the circumstances giving rise to the habeas corpus application may make release from custody the only fair remedy. However, in the context of bail, absent egregious fact scenarios, habeas corpus will be more efficacious in delivering fair process before the appropriate tribunal, rather than release itself.
(Citations omitted)
[51] The Court adopts this analysis.
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