R. v. St-Cloud (J.), (2015) 471 N.R. 256 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 15, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 471 N.R. 256 (SCC);2015 SCC 27;[2015] SCJ No 27 (QL);384 DLR (4th) 676;321 CCC (3d) 307;[2015] ACS no 27;[2015] 2 SCR 328

R. v. St-Cloud (J.) (2015), 471 N.R. 256 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. MY.012

Her Majesty the Queen (appellant) v. Jeffrey St- Cloud (respondent) and Attorney General of Ontario, Criminal Lawyers' Association (Ontario) and Canadian Civil Liberties Association (interveners)

(35626; 2015 SCC 27; 2015 CSC 27)

Indexed As: R. v. St-Cloud (J.)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

May 15, 2015.

Summary:

The accused was charged with aggravated assault. The accused and two others violently assaulted a bus driver, leaving him with serious long-term injuries. A Justice of the Peace denied release pending trial under both s. 515(10)(b) of the Criminal Code (to ensure protection or safety of the public) and s. 515(10)(c) (to maintain confidence in the administration of justice). A second application resulted in his continued detention under s. 515(10)(c). The accused applied under s. 520 for a review by a Superior Court judge. That judge held that the accused's detention was not necessary under s. 515(10)(c) and ordered his release pending trial. The Crown appealed.

The Supreme Court of Canada allowed the appeal. The accused's detention was necessary to maintain confidence in the administration of justice (s. 515(10)(c)).

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) - Section 515(10)(c) of the Criminal Code provided for the denial of release pending trial where "necessary to maintain confidence in the administration of justice" - The court was to consider all of the circumstances, including the apparent 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 sentence - The Supreme Court of Canada summarized the principles to guide the application of s. 515(10)(c) as follows: "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. In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered." - See paragraphs 87 and 88.

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) - Section 515(10)(c) of the Criminal Code provided for the denial of release pending trial where "necessary to maintain confidence in the administration of justice" - The court was to consider all of the circumstances, including the apparent 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 sentence - Respecting the apparent strength of the Crown's case, the Supreme Court of Canada stated that: "An interim release hearing is a summary proceeding in which more flexible rules of evidence apply. As a result, some of the evidence admitted at this hearing may later be excluded at trial. ... the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise. For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be less reliable than direct evidence." - See paragraphs 57, 58.

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) - Section 515(10)(c) of the Criminal Code provided for the denial of release pending trial where "necessary to maintain confidence in the administration of justice" - The court was to consider all of the circumstances, including the apparent 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 sentence - Respecting the gravity of the offence, the Supreme Court of Canada stated that: "For the purposes of s. 515(10)(c), what the justice must determine is the 'objective' gravity of the offence in comparison with the other offences in the Criminal Code. This is assessed on the basis of the maximum sentence - and the minimum sentence, if any - provided for in the Criminal Code for that offence." - See paragraph 60.

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) - Section 515(10)(c) of the Criminal Code provided for the denial of release pending trial where "necessary to maintain confidence in the administration of justice" - The court was to consider all of the circumstances, including the apparent 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 sentence - Respecting the circumstances surrounding the commission of the offence, the Supreme Court of Canada stated that: "Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under s. 515(10)(c), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account." - See paragraph 61.

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) - Section 515(10)(c) of the Criminal Code provided for the denial of release pending trial where "necessary to maintain confidence in the administration of justice" - The court was to consider all of the circumstances, including the apparent 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 sentence - Respecting the fact that the accused was liable for a potentially lengthy term of imprisonment, the Supreme Court of Canada stated that "Moreover, to determine, on a case-by-case basis, whether the accused is actually liable for a potentially 'lengthy term of imprisonment', the justice must consider all the circumstances of the case known at the time of the hearing, as well as the principles for tailoring the applicable sentence. But this does not mean that the justice would be justified in embarking on a complex exercise to calculate the sentence the accused might receive: it must be borne in mind that interim release occurs at the beginning of the criminal process and that the justice must avoid acting as a substitute for the trial judge. That being said, there will be cases in which a claim of mitigating or aggravating circumstances appears to have sufficient merit for it to be open to the justice to consider it in determining whether the accused is liable for a potentially 'lengthy term of imprisonment'. As far as possible, therefore, this fourth circumstance is assessed subjectively , unlike the second circumstance - the gravity of the offence - which is assessed objectively ." - See paragraph 65.

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) - Section 515(10)(c) of the Criminal Code provided for the denial of release pending trial where "necessary to maintain confidence in the administration of justice" - The court was to consider all of the circumstances, including the apparent 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 sentence - Respecting additional circumstances other than the enumerated four, the Supreme Court of Canada stated that "Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10) (c) Cr.C., I think it will be helpful to give a few examples. Section 515(10) (c)(iii) refers to the 'circumstances surrounding the commission of the offence'. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date." - See paragraph 71.

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) - [See second Criminal Law - Topic 3320 ].

Criminal Law - Topic 3315

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Evidence and burden of proof - [See second Criminal Law - Topic 3304.1 ].

Criminal Law - Topic 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - The Supreme Court of Canada discussed the extent of the power provided for in ss. 520 (accused) and 521 (Crown) of the Criminal Code to review decisions respecting detention or interim release: "Since a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 Cr.C. to review such a decision is not open-ended. I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene." - Neither section provided for a de novo hearing - Respecting admissible new evidence, the court stated that the four R. v. Palmer (SCC) criteria were relevant, with necessary modifications - The court stated that "a reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. ... it will be open to the reviewing judge to refuse to admit new evidence where it is alleged to have actually been in the interest of the accused to drag out the application for release or where the accused is alleged to have tried to use the review to engage in judge shopping. ... If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr.C. as if he or she were the initial decision maker." - See paragraphs 6, 93 to 139.

Criminal Law - Topic 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - The accused was charged with aggravated assault - The accused and two others violently assaulted a bus driver, leaving him with serious long-term injuries - A Justice of the Peace denied release pending trial under both s. 515(10)(b) of the Criminal Code (to ensure protection or safety of the public) and s. 515(10)(c) (to maintain confidence in the administration of justice) - A second application resulted in his continued detention under s. 515(10)(c) - The accused applied under s. 520 for a review by a Superior Court judge - That judge held that the accused's detention was not necessary under s. 515(10)(c) and ordered his release pending trial - The Supreme Court of Canada allowed the Crown's appeal and restored the order that the accused's detention was necessary to maintain confidence in the administration of justice (s. 515(10)(c)) - The court stated that the reviewing judge "intervened even though there was no basis for a review, given that there was no material change in circumstances and no error of law, and that the initial decision was not clearly inappropriate. Indeed, in my opinion, the detention of the [accused] was justified under s. 515(10)(c) Cr.C. ... when all the relevant circumstances are weighed as required by s. 515(10)(c) Cr.C., the detention of the [accused] was necessary to maintain confidence in the administration of justice." - See paragraphs 140 to 167.

Cases Noticed:

R. v. Hall (D.S.), [2002] 3 S.C.R. 309; 293 N.R. 239; 165 O.A.C. 319, refd to. [para. 2].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 44 N.R. 243; 52 Q.A.C. 1, refd to. [para. 27].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161, refd to. [para. 28].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 33].

R. v. Thomson (L.), [2004] O.T.C. 395; 21 C.R.(6th) 209 (Sup. Ct.), refd to. [para. 39].

R. v. A.B., [2006] O.T.C. 89; 204 C.C.C.(3d) 490 (Sup. Ct.), refd to. [para. 39].

R. v. Pichler (D.E.), [2009] A.R. Uned. 892; 2009 ABPC 24, refd to. [para. 39].

R. v. Teemotee, 2011 NUCJ 17, refd to. [para. 39].

R. v. Bhullar, 2005 BCCA 409, refd to. [para. 39].

R. v. Brotherston (G.) et al., [2009] B.C.A.C. Uned. 101; 71 C.R.(6th) 81; 2009 BCCA 431, refd to. [para. 39].

R. v. LaFramboise (2005), 203 C.C.C.(3d) 492 (Ont. C.A.), refd to. [para. 39].

R. v. R.D. (2010), 281 O.A.C. 43; 273 C.C.C.(3d) 7; 2010 ONCA 899, refd to. [para. 39].

R. v. Blind (D.E.) (1999), 180 Sask.R. 145; 205 W.A.C. 145; 139 C.C.C.(3d) 87 (C.A.), refd to. [para. 39].

R. v. Rondeau, [1996] R.J.Q. 1155 (C.A.), refd to. [para. 44].

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 53].

R. v. Coates, 2010 QCCA 919, refd to. [para. 59].

R. v. Mordue (E.W.) (2006), 215 O.A.C. 125; 223 C.C.C.(3d) 407 (C.A.), refd to. [para. 66].

R. v. Nguyen (Y.V.) (1997), 97 B.C.A.C. 86; 157 W.A.C. 86; 119 C.C.C.(3d) 269 (C.A.), refd to. [para. 74].

R. v. Lamothe (P.) (1990), 33 Q.A.C. 11; 58 C.C.C.(3d) 530 (C.A.), refd to. [para. 75].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 78].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 78].

R. v. Trout (S.S.) (2006), 205 Man.R.(2d) 277; 375 W.A.C. 277; 2006 MBCA 96, refd to. [para. 79].

R. v. Turcotte, 2014 QCCA 2190, refd to. [para. 83].

Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et autres, [1991] 3 S.C.R. 459; 130 N.R. 362; 119 N.B.R.(2d) 271; 300 A.P.R. 271, refd to. [para. 84].

R. v. S.H.M., [1989] 2 S.C.R. 446; 100 N.R. 1; 100 A.R. 321, refd to. [para. 95].

R. v. Oliver (J.) (2008), 287 Nfld. & P.E.I.R. 123; 885 A.P.R. 123; 2008 NLCA 27, refd to. [para. 99].

R. v. D.T.M. (2012), 275 Man.R.(2d) 309; 538 W.A.C. 309; 289 C.C.C.(3d) 285; 2012 MBCA 26, refd to. [para. 99].

R. v. Massan - see R. v. D.T.M.

R. v. White (M.J.) (2005), 417 A.R. 249; 410 W.A.C. 249202 C.C.C.(3d) 295; 2005 ABCA 403, refd to. [para. 99].

United States of America v. Chan (2000), 128 O.A.C. 359; 144 C.C.C.(3d) 93 (C.A.), refd to. [para. 102].

United States of America v. Pannell (2005), 193 O.A.C. 209; 193 C.C.C.(3d) 414 (C.A.), refd to. [para. 102].

United States of America v. Yuen (2004), 363 A.R. 28; 343 W.A.C. 28; 2004 ABCA 368, refd to. [para. 102].

Tenenbaum v. United States of America (2008), 446 A.R. 155; 442 W.A.C. 155; 2008 ABCA 368, refd to. [para. 102].

Delagarde v. United States of America (2005), 293 N.B.R.(2d) 80; 762 A.P.R. 80 (C.A.), refd to. [para. 102].

United States of America v. Palmucci, 2011 CanLII 38680 (Que. C.A.), refd to. [para. 102].

Boily v. États-Unis Mexicains, 2005 QCCA 599, refd to. [para. 102].

Ivanov et al. v. United States of America (2003), 223 Nfld. & P.E.I.R. 44; 666 A.P.R. 44; 2003 NLCA 11, refd to. [para. 102].

Seifert v. Canada (Attorney General) (2002), 171 B.C.A.C. 203; 280 W.A.C. 203; 2002 BCCA 385, refd to. [para. 103].

United States of America v. Graham (2004), 195 B.C.A.C. 245; 319 W.A.C. 245; 2004 BCCA 162, refd to. [para. 103].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 105].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 105].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 105].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351, refd to. [para. 105].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 105].

Toronto Star Newspapers Ltd. et al. v. Canada et al., [2010] 1 S.C.R. 721; 402 N.R. 206; 482 A.R. 66; 490 W.A.C. 66; 263 O.A.C. 4; 2010 SCC 21, refd to. [para. 108].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 135 C.C.C.(3d) 41 (C.A.), refd to. [para. 116].

Ell et al. v. Alberta, [2003] 1 S.C.R. 857; 306 N.R. 1; 330 A.R. 201; 299 W.A.C. 232; 2003 SCC 35, refd to. [para. 125].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 128].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 128].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 130].

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1; 77 C.C.C.(3d) 402 (C.A.), refd to. [para. 130].

McMartin v. R., [1964] S.C.R. 484, refd to. [para. 131].

R. v. Price (S.L.), [1993] 3 S.C.R. 633; 157 N.R. 378; 145 A.R. 231; 55 W.A.C. 231, refd to. [para. 131].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 147].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 147].

R. v. Dagenais, 2012 QCCA 244, refd to. [para. 163].

R. v. Riendau, 2012 QCCA 1155, refd to. [para. 163].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 515(10)(c) [para. 31]; sect. 520(1) [para. 93]; sect. 520(7)(a), sect. 520(7)(b), sect. 520(7)(c) [para. 122]; sect. 520(7)(d), sect. 520(7)(e), sect. 520(8)(d), sect. 520(8)(e) [para. 93]; sect. 680(1) [para. 98].

Authors and Works Noticed:

Morissette, Yves-Marie, The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What To Do and What Not To Do (1984), 29 McGill L.J. 521, p. 282 [para. 78].

Quigley, Tim, Procedure in Canadian Criminal Law (2nd Ed. 2005) (2014 looseleaf update), release 5, p. 11-17 [para. 99].

Ruby, Clayton, Chan, Gerald J., and Hasan, Nader R., Sentencing (8th Ed. 2012), § 23.230 [para. 163].

Trotter, Gary T., The Law of Bail in Canada (3rd Ed. 2010) (2014 looseleaf update), release 3, pp. 3-45 [para. 42]; 8-13 [para. 91]; 8-23 [para. 99].

Counsel:

Christian Jarry and Geneviève Langlois, for the appellant;

André Lapointe and Guylaine Tardif, for the respondent;

Robert E. Gattrell and Avene Derwa, for the intervener, the Attorney General of Ontario;

John Norris and Christine Mainville, for the intervener, the Criminal Lawyers' Association (Ontario);

Anil K. Kapoor and Lindsay Daviau, for the intervener, the Canadian Civil Liberties Association.

Solicitors of Record:

Poursuites criminelles et pénales du Québec, Montreal, Quebec, for the appellant;

André Lapointe, Montreal, Quebec; Guylaine Tardif, Montreal, Quebec, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

John Norris, Toronto, Ontario; Henein Hutchison, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Kapoor Barristers, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association.

This appeal was heard on November 6, 2014, before McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada.

On May 15, 2015, Wagner, J., delivered the following judgment in both official languages for the Court.