Intervener Attorney-General-Of-Ontario.Pdf

SCC File No. 38785

IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal of Alberta)

B E T W E E N: RYAN CURTIS REILLY Appellant (Respondent)

and

HER MAJESTY THE QUEEN Respondent (Appellant) and

DIRECTOR OF PUBLIC PROSECUTIONS, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, ABORIGINAL LEGAL SERVICES, CRIMINAL LAWYERS' ASSOCIATION (ONTARIO), CRIMINAL TRIAL LAWYERS' ASSOCIATION, ASSOCIATION QUÉBÉCOISE DES AVOCATS ET AVOCATES DE LA DÉFENSE Interveners

FACTUM OF THE INTERVENER, ATTORNEY GENERAL OF ONTARIO (Pursuant to Rules 37 and 42 of the Rules of the Supreme Court of Canada)

David Friesen Nadia Effendi Attorney General of Ontario Borden Ladner Gervais LLP Crown Law Office – Criminal World Exchange Plaza 720 Bay Street, 10th Floor 100 Queen Street, Suite 1300 Toronto, ON M7A 2S9 Ottawa, ON K1P 1J9

Tel: (416) 326-4258 Tel: (613) 787-3562 Fax: (416) 326-4656 Fax: (613) 230-8842 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Attorney General of Ontario Attorney General of Ontario

Deborah R. Hatch, Michael Bates Colleen Bauman & Andrea Serink Goldblatt Partners LLP Deborah Hatch Law 500 – 30 Metcalfe Street SunLife Building, Suite 1740 Ottawa, ON K1P 5L4 10123 – 99 Street Edmonton, AB T5J 3H1

Tel: (780) 474-2888 Tel: (613) 482-2463 Fax: (780) 665-1059 Fax: (613) 235-3041 Email: [email protected] Email: [email protected]

Counsel for the Appellant, Ottawa Agent for the Appellant, Ryan Curtis Reilly Ryan Curtis Reilly

Jason R. Russell D. Lynne Watt Attorney General of Alberta Gowling WLG (Canada) LLP 3rd Floor, 9833 - 109 Street N.W. 160 Elgin Street, Suite 2600 Edmonton, AB T5K 2E8 Ottawa, ON K1P 1C3

Tel: (780) 422-5402 Tel: (613) 786-8695 Fax: (780) 422-1106 Fax: (613) 788-3509 Email: [email protected] Email: [email protected]

Counsel for the Respondent, Ottawa Agent for the Respondent, Her Majesty the Queen Her Majesty the Queen

Jonathan Rudin & Douglas Varrette Nadia Effendi Aboriginal Legal Services Borden Ladner Gervais LLP 211 Yonge Street, Suite 500 World Exchange Plaza Toronto, ON M5B 1M4 100 Queen Street, Suite 1300 Ottawa, ON K1P 1J9

Tel: (416) 408-4041 Tel: (613) 787-3562 Fax: (416) 408-1568 Fax: (613) 230-8842 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Aboriginal Legal Services Aboriginal Legal Services

Boris Bytensky, Daniel Brown & Matthew Estabrooks Lindsay Board Gowling WLG (Canada) LLP Bytensky Shikhman 2600 - 160 Elgin Street 5000 Yonge Street, Suite 1708 P.O. Box 466, Stn. A Toronto, ON M2N 7E9 Ottawa, ON K1P 1C3

Tel: (416) 365-2184 Tel: (613) 786-0211 Fax: (416) 365-0866 Fax: (613) 788-3573 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Criminal Lawyers Association (Ontario) Criminal Lawyers Association (Ontario)

Daniel J. Song & Curtis Steeves Moira Dillon Pringle, Chivers, Sparks, Teskey Supreme Law Group 1720 - 355 Burrard Street 900 - 275 Slater Street Vancouver, BC V6C 2G8 Ottawa, ON K1P 5H9

Tel: (604) 669-7447 Tel: (613) 691-1224 Fax: (604) 259-6171 Fax: (613) 691-1338 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Criminal Trial Lawyers Association Criminal Trial Lawyers Association

Éric Marcoux François Lacasse Public Prosecution Service of Canada Director of Public Prosecutions of Canada 160 Elgin Street, 12th Floor 160 Elgin Street, 12th Floor Ottawa, ON K1A 0H8 Ottawa, ON K1A 0H8

Tel: (613) 960-8007 Tel: (613) 957-4770 Fax: (613) 941-7865 Fax: (613) 941-7865 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Director of Public Prosecutions Director of Public Prosecutions

Catheryne Bélanger Pierre Landry Ministère de la Justice du Québec Noël & Associés 1200, route de l'Église, 4e étage 111, rue Champlain Québec, QC G1V 4M1 Gatineau, QC J8X 3R1

Tel: (418) 643-1477 Ext: 23177 Tel: (819) 503-2178 Email: [email protected] Fax: (819) 771-5397 Email: [email protected]

Counsel for the Intervener, Ottawa Agent for the Intervener, Attorney General of Quebec Attorney General of Quebec

Ariane Gagnon-Rocque, Jean-Francois Bertrand & Elodie Drolet-French Roy & Charbonneau avocats 2828, boulevard Laurier Tour 2, bureau 395 Québec, QC, G1V 0B9

Tel: (418) 694-3003 Fax: (418) 694-3008 Email: [email protected]

Counsel for the Intervener, Association québécoise des avocats et avocates de la défense (AQAAD) i

Table of Contents

PARTS I & II: OVERVIEW AND STATEMENT OF POSITION...... 1 PART III: ARGUMENT ...... 1 a) No presumptive remedy for s. 503(1) violations ...... 1 b) “Interim bail” is not an appropriate remedy ...... 5 PART IV: SUBMISSIONS CONCERNING COSTS ...... 10 PART V: TIME FOR ORAL ARGUMENT ...... 10 PART VI: SUBMISSIONS ON CASE SENSITIVITY ...... 11 PART VII: TABLE OF AUTHORITIES ...... 12

PARTS I & II: OVERVIEW AND STATEMENT OF POSITION

1. At issue in this case is the obligation on the police to bring an accused before a justice within the time limits set out in s. 503(1) of the Criminal Code. The appellant was brought before a justice thirty-five hours after he was arrested, in violation of s. 503(1). A bail hearing was held and he was released on conditions.

2. The Attorney General of Ontario makes the following submissions:

a) A stay of proceedings is not the presumptive or default remedy whenever s. 503(1) is violated. Courts have endorsed a range of remedies for s. 503(1) violations. This flexibility is appropriate given the varied contexts in which these violations can occur.

b) Releasing the accused on “interim bail” is not the appropriate remedy whenever a court is unable to accommodate a bail hearing. Courts have rejected immediate release without a bail hearing as a remedy in those circumstances. The Criminal Code requires that the Crown be given a “reasonable opportunity” to show cause why the accused should be detained. “Interim bail” would result in the accused’s release without the Crown being afforded this statutorily-required opportunity.

PART III: ARGUMENT

a) No presumptive remedy for s. 503(1) violations 3. Where the police decide not to release the accused themselves, s. 503(1)(a) requires them to bring the accused before a justice for a first appearance without unreasonable delay and, in any event, within twenty-four hours if a justice is available, to be dealt with according to law. Twenty- four hours “is the outer limit of what is a reasonable period where a Justice is available within that period.”1 The purpose of s. 503(1) is to ensure that the arrest and detention is “made known to an independent judicial official as soon as possible.”2 This guarantees that the police cannot hold an

1 R. v. Koszulap (1974), 20 C.C.C. (2d) 193 (Ont. C.A.) at 202; R. v. Storrey, [1990] 1 S.C.R. 241 at 256. 2 Trotter, Gary T., The Law of Bail in Canada, 3rd ed. Toronto: Thomson Reuters, 2010 (loose- leaf updated 2020, release 1) at chapter 2.5(a) [Trotter, Law of Bail]. 2

accused “incommunicado.”3 Once the accused is brought before a justice, ss. 515(1) and 516(1) govern the timing of the substantive bail hearing. Section 515(1) requires that “the Crown is to be given a reasonable opportunity to show cause why either detention or some other order should be made.”4 Section 516(1) limits any adjournment of the substantive bail hearing to a maximum of three clear days unless the accused consents to a longer period.

4. Violations of s. 503(1) have generally been considered under s. 9 of the Charter. In R. v. Prosper, this Court held that “s. 503(1)(a) of the Code ensures that a person who is detained is brought before a justice ‘to be dealt with according to law . . . without unreasonable delay’” and that “any delay which is considered excessive can be challenged under s. 9 of the Charter, which protects against arbitrary detention or imprisonment.”5

5. A stay of proceedings is not the presumptive or default remedy for violations of s. 503(1). Where a s. 503(1) violation results in a breach of s. 9 of the Charter, s. 24(1) gives trial judges a wide discretion to grant “such remedy as the court considers appropriate and just in the circumstances.”6 This flexibility is appropriate given the varied contexts in which s. 503(1) violations can occur, and permits trial judges to take into account such factors as the length of time the accused was held prior to being taken before a justice, the reasons for the police failure to bring the accused before a justice within the required time, and whether that failure was the result of a widespread problem. In addition, where evidence was obtained during a s. 503(1) violation, s. 24(2) offers the remedy of exclusion of evidence.

6. As set out below, courts have endorsed a range of remedies for s. 503(1) violations.

No remedy granted 7. Courts have sometimes declined to grant any remedy where the s. 503(1) violation had no practical consequences,7 for instance where the accused was lawfully in custody on other charges.8

3 R. v. Davidson, 2004 ABCA 337 at para. 24. 4 R. v. Pearson, [1992] 3 S.C.R. 665 at 691. 5 R. v. Prosper, [1994] 3 S.C.R. 236 at 273. 6 Mills v. The Queen, [1986] 1 S.C.R. 863 at 965; Vancouver (City) v. Ward, 2010 SCC 27 at paras. 16-19. 7 R. v. Colley, 2018 ONSC 892 at paras. 20-22, 47; R. v. Sonne, 2012 ONSC 1741 at para. 145. 8 R. v. Chemama, 2016 ONCA 579 at paras. 21–22. 3

Judicial denunciation of the Charter breach 8. In some cases, courts have determined that judicial denunciation or condemnation of the Charter breach, coupled with a sentence reduction in the event of conviction, is a sufficient remedy.9 In others, judicial denunciation has been recognized as an available remedy but rejected as insufficient in the circumstances.10

Exclusion of evidence 9. In some cases, where a s. 503(1) violation occurred due to police efforts to obtain evidence, courts have excluded the evidence.11 To be clear, police are entitled to continue their investigation prior to bringing the accused before a justice12 and doing so will not necessarily run afoul of the requirement that the accused be brought before a justice “without unreasonable delay”; however, the ability of police to detain the accused while they continue their investigation is restricted by the twenty-four hour “outer limit” in s. 503(1).13

Sentence reduction 10. Courts have regularly endorsed sentence reduction as an appropriate remedy for a s. 503(1) violation.14 In R. v. Nasogaluak, this Court cited some of these decisions and, as Kent Roach has noted, “did not disapprove of cases in which sentences were reduced as a result of arbitrary detention after arrests.”15 Professor Roach has written that sentence reductions “may be

9 R. v. Crate, 2019 MBPC 80 at paras. 71-91; R. v. Dawson, 2016 ONSC 3461 at paras. 38-66, 70; Couse, Jeffrey, “‘Jackpot’: The Hang-Up Holding Back the Residual Category of Abuse of Process” (2017), 40(3) Manitoba Law Journal 165 at 185. 10 R. v. S.B., 2014 ONCA 527 at para. 22. 11 R. v. Mangat (2006), 209 C.C.C (3d) 225; R. v. Raios, 2018 ONSC 6867; R. v. Mendez, 2014 ONSC 498 at paras. 5, 98-124; R. v. Thompson, 2013 ONSC 5915 at para. 57-69; R. v. Gander, 2011 ONSC 3452 at paras. 35-72; R. v. C.K., 2005 ONCJ 462 at paras. 32-50. 12 R. v. Storrey, [1990] 1 S.C.R. 241 at 255-57; R. v. E.W., 2002 NFCA 49 at paras. 14-16. 13 R. v. Storrey, [1990] 1 S.C.R. 241 at 256. 14 R. v. Nasogaluak, 2010 SCC 6 at paras. 58-59; R. v. Charles (1987), 61 Sask.R. 166 (C.A.); R. v. MacPherson (1995), 166 N.B.R. (2d) 81 (C.A.); R. v. King, 2019 ONSC 5748 at para. 30; R. v. Carter, 2016 ONSC 2832 at paras. 22-40 (see also reasons for sentence at 2016 ONSC 4389 at paras. 1-2, 6-8, 15-16); R. v. Rashid (2009) 243 C.C.C. (3d) 318 (Ont. Sup. Ct.) at paras. 48-64, leave to appeal refused, 2010 ONCA 591; R. v. MacDonald, 2018 NSPC 25 at paras. 4, 65-68, aff’d, 2019 NSCA 5; R. v. Dann, 2002 NSSC 37 (see also reasons for sentence at 2002 NSSC 237); R. v. Sybrandy, [1983] O.J. No. 604 (Prov. Ct.) at paras. 21, 24-26. 15 Roach, Kent, Constitutional Remedies in Canada, 2nd ed. Toronto: Thomson Reuters, 2019 (loose-leaf updated October 2019, release 34), ch. 9.1730 [Roach, Constitutional Remedies] 4

particularly appropriate when the accused has been arbitrarily detained . . . but no incriminating evidence has been produced” as a result of the detention because “[i]n such cases, exclusion of evidence is not available and damages are the main alternative remedy, but will require the expense and delay of commencing separate civil proceedings,” whereas “sentence reduction will be within the jurisdiction of the criminal court.”16

Damages 11. Damages are potentially available as a remedy for a s. 503(1) violation;17 however, they should be sought through separate civil proceedings.18 Provincial criminal courts do not have the power to award damages under s. 24(1).19 As Professor Roach has observed, “it would be inequitable to allow one level of criminal court to award damages but not the other” and would “create an irrational anomaly between the position of the accused in a superior court and a provincial court.”20

Costs 12. It is well-established that “[c]osts in criminal cases have always been and still remain an exceptional remedy to be awarded only in ‘rare’ cases.”21 In keeping with this principle, there appear to be few cases in which courts have awarded costs for a s. 503(1) violation. There are cases in which costs have been awarded when the substantive bail hearing was delayed well beyond the time limits prescribed by s. 516(1) of the Code, but in those cases there was either no s. 503(1) violation22 or the s. 503(1) breach was minor compared to the s. 516(1) violation.23

Stays of proceedings 13. Stays of proceedings are reserved for the “clearest of cases” and, while undoubtedly an

16 Roach, Constitutional Remedies, ch. 9.1640 17 R. v. S.B., 2014 ONCA 527 at para. 23. 18 Mills v. The Queen, [1986] 1 S.C.R. 863 at 884-86 (per Lamer J. and Dickson C.J.C.), 955 (per McIntyre, Beetz and Chouinard JJ.), 971 (per La Forest J.); Ontario v. 974649 Ontario Inc., 2001 SCC 81 at paras. 50-59; Roach, Constitutional Remedies, ch. 11.240. 19 Vancouver (City) v. Ward, 2010 SCC 27 at para. 58. 20 Roach, Constitutional Remedies, ch. 11.240. 21 R. v. Brown, 2009 ONCA 633 at para. 27. 22 R. v. Zarinchang, 2007 ONCJ 470 at para. 3, rev’d in part, 2010 ONCA 286. 23 R. v. Brown, [2007] O.J. No. 2830 (Sup. Ct.) at paras. 6-7, 32-33, aff’d, 2009 ONCA 633. 5

available remedy,24 have rarely been granted as a result of a s. 503(1) violation.25 Stays have regularly been sought but denied because the court found an alternative remedy was sufficient.26

14. In sum, the existing jurisprudence establishes that a stay of proceedings is not the presumptive or default remedy for s. 503(1) violations. The range of available remedies provides courts with the appropriate flexibility to redress s. 503(1) violations, which can vary significantly in seriousness. Where a stay of proceedings is sought, a court must engage in a robust assessment of these alternative remedies and, under the second stage of the applicable test, find that none of them would suffice before imposing a stay.27 The jurisprudence establishes that this will rarely be the case. This is appropriate because a stay is a “drastic remedy” that permanently halts the prosecution and therefore must be reserved for the clearest of cases.28

b) “Interim bail” is not an appropriate remedy

Timelines governing the substantive bail hearing 15. The bail provisions in the Criminal Code are designed to provide an expedited process.29 In R. v. Zarinchang, the Court of Appeal for Ontario held: “Where a person, arrested and detained for a bail hearing, is taken before the court within twenty-four hours of arrest (Code s. 503(1)), and the prosecution and the accused are prepared for a show cause hearing, a hearing should forthwith be held whenever possible.”30

16. There will, however, be occasions when “it may not be possible or in the best interests of either party to proceed on the first appearance.”31 For instance, an accused might require an

24 Trotter, Law of Bail, ch. 2.5(b). 25 R. v. Simpson (1994), 117 Nfld. & P.E.I.R. 110, rev’d, [1995] 1 S.C.R. 449. 26 For example, see R. v. Mangat (2006), 209 C.C.C (3d) 225; R. v. Rashid (2009) 243 C.C.C. (3d) 318 (Ont. Sup. Ct.) at paras. 48-64, leave to appeal refused, 2010 ONCA 591; R. v. Dawson, 2016 ONSC 3461 at paras. 38-66, 70; R. v. Charles (1987), 61 Sask.R. 166 (C.A.). 27 R. v. Babos, 2014 SCC 16 at paras. 32, 39, 56. 28 R. v. Babos, 2014 SCC 16 at paras. 30-31. 29 R. v. Antic, 2017 SCC 27 at para. 6, R. v. Zora, 2020 SCC 14 at para. 59. 30 R. v. Zarinchang, 2010 ONCA 286 at para. 44 (emphasis added); R. v. J.V. (2002), 163 C.C.C. (3d) 507 at para. 66. 31 Trotter, Law of Bail, ch. 5.3(a). 6

adjournment because defence counsel is not ready to proceed32 or because the accused is not in a position to put forward a viable release plan right away.33 The Crown might require an adjournment in order to “make further inquiries about the accused person and/or the details of the alleged offences”34 or because an ongoing police investigation may further delineate the accused’s role in the alleged crime and his suitability for release.35 Section 516(1) takes such considerations into account and permits either party to request an adjournment but limits an adjournment requested by the Crown to three clear days absent the accused’s consent to a longer period. The jurisprudence establishes that the Crown does not have an “absolute right” to an adjournment but rather must make adjournment requests on a “good faith” basis.36 Nor is an adjournment of three clear days automatic. The length of the adjournment is within the discretion of the justice, who must “direct his or her mind to what is a reasonable opportunity to show cause in the circumstances.”37

17. Applying these principles, Ontario’s Crown Prosecution Manual contains the following direction to prosecutors: The Prosecutor should ensure that the bail hearing proceeds expeditiously and as effectively as possible. Wherever possible, the hearing should be conducted and completed on the first appearance of the accused in bail court. The Prosecutor should consider whether the hearing can be conducted by a factual summary and submissions without the necessity of calling evidence or by conducting a focused hearing dealing with only issues that are in dispute.

If the Prosecutor seeks an adjournment, it should be for as short a time as necessary. The reasons for the request should be stated in open court.38

18. Although the Code provisions are designed to provide an expedited process, they do not provide an accused with the right to a substantive bail hearing within twenty-four hours of arrest.

32 Webster, Cheryl Marie, Anthony N. Doob, and Nicole M. Myers, “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” (2009), 21(1) Current Issues in Criminal Justice 79 at 96-97, 100-101. 33 Trotter, Law of Bail, ch. 5.3(a). 34 Trotter, Law of Bail, ch. 5.3(a). 35 R. v. Donnelly, 2016 ONCA 988 at paras. 83-85. 36 R. v. Donnelly, 2016 ONCA 988 at para. 80. 37 R. v. C.G.F., 2003 NSCA 136 at para. 24. 38 Ontario, Ministry of the Attorney General, Crown Prosecution Manual, “Judicial Interim Release (Bail)” (November 2017). 7

A plain reading of the provisions makes this clear. Section 503(1) does not require that a substantive bail hearing be held but rather requires that an accused (1) be brought before a justice; and (2) “dealt with according to law”.39 Furthermore, the requirement in s. 503(1) that an accused be brought before a justice within an “outer limit” of twenty-four hours applies only “where a justice is available”. Section 516(1) permits a justice to grant a Crown adjournment request of up to three clear days, without the accused’s consent, which is clearly inconsistent with any alleged right to a substantive bail hearing within twenty-four hours. Courts have not imposed a twenty- four hour deadline on substantive bail hearings; rather, they have recognized that “[u]nreasonably prolonged custody awaiting a bail hearing” gives rise to a Charter breach.40

“Interim bail” is not an appropriate remedy 19. The Attorney General of Ontario disagrees with the submission of the Criminal Lawyers’ Association (Ontario) (CLA) that an accused must always be released on “interim bail” whenever: (1) the accused is ready to proceed with the substantive bail hearing; (2) there is no valid basis for a Crown adjournment request; and (3) the court cannot accommodate the bail hearing.41 The CLA refers to these circumstances as “not reached” cases and says that, whenever they occur, “[t]he accused should be released, on conditions if necessary, and directed to return for a scheduled bail hearing.”42 In support of its position, the CLA points to the following passage from the Alberta Court of Appeal’s decision: There is no explanation on the record why persons held for over 20 hours are not taken before a justice, at least to speak to an adjournment, or possibly to secure their release on conditions, with the requirement that they return in the immediate future for a “show cause” hearing on their continued detention.43

20. This passage does not support the concept of “interim bail”. The inclusion of the words “continued detention” indicate that the Alberta Court of Appeal was not suggesting that an accused could be temporarily released from custody before returning to court for the substantive bail hearing. Read in context, what the Court of Appeal meant was that individuals whose detention is approaching the twenty-four hour “outer limit” should be “taken before a justice” whereupon one

39 R. v. Dawson, 2016 ONSC 3461 at para. 33. 40 R. v. Zarinchang, 2010 ONCA 286 at para. 39. 41 CLA factum, para. 30. 42 CLA factum, para. 6. 43 R. v. Reilly, 2019 ABCA 212 at para. 56(e); CLA factum, para. 25. 8

of two things would happen: (1) they might “secure their release” or (2) they could “speak to an adjournment, . . . with the requirement that they return in the immediate future for a ‘show cause’ hearing on their continued detention.” This reading is consistent with s. 516(1) of the Code, which requires a justice, where the substantive bail hearing is adjourned, to “remand the accused to custody in prison by warrant in Form 19.”

21. Courts have rejected immediate release as a remedy for violations of ss. 503(1) and 516(1). In R. v. Brown, the accused brought habeas corpus applications after their “bail hearings were adjourned for weeks rather than the statutorily prescribed period of three days.”44 Nordheimer J. (as he then was) ordered that bail hearings be held at the earliest available date and awarded costs against the Crown, but rejected the idea that the accused should be immediately released: [27] The applicants seek their immediate release. I do not consider that remedy to be either a responsible or reasonable one in the circumstances. I am fully aware of the rights of the accused, as I have just mentioned. However, I am equally aware that all other citizens of this community have similar rights. They are entitled to a justice system that ensures, among other things, their protection and safety. Indeed, the protection and safety of the public is an expressed consideration in determining any release. [28] Notwithstanding the serious concerns that I have expressed regarding the procedure that has taken place to date respecting these accused, I am not prepared to simply release them into the public. I do not rule out the possibility, however, that such a remedy might become necessary if this situation should repeat itself in the future.45 The remedy of immediate release for a violation of the time limits in s. 503(1) or s. 516(1) has also been sought in other cases and refused.46 As well, provincial court decisions holding that jurisdiction is lost whenever s. 503(1) or s. 516(1) is violated, thereby necessitating immediate release, have been overcome by subsequent decisions of higher courts.47

22. The concept of “interim bail” presupposes that the Crown intends to “show cause” why the accused should be detained or released on conditions. In such cases, s. 515(1) requires that “the Crown is to be given a reasonable opportunity to show cause why either detention or some other

44 R. v. Brown, 2009 ONCA 633 at para. 1. 45 R. v. Brown, [2007] O.J. No. 2830 (Sup. Ct.) at paras. 27-30. 46 R. v. Young, 2018 MBQB 147 at paras. 8-13; Tyrone-Stewart c. Centre de détention de Montréal, 2007 QCCS 7015; Trotter, Law of Bail, ch. 4.3. 47 R. v. Young, 2018 MBQB 147 at paras. 8-13; R. v. Rich, 2017 NLTD(G) 92; R. v. Vanlerberghe (1973), 13 C.C.C. (2d) 84 (B.C. Sup. Ct.); R. v. Ings (1984), 46 Nfld. & P.E.I.R. 229 (Nfld. Sup. Ct., Tr. Div.), aff’d, (1985) 56 Nfld. & P.E.I.R. 53 (Nfld. C.A.). 9

order should be made.”48 As Cromwell J.A. (as he then was) wrote in R. v. C.G.F: According to s. 515(1), once the prosecutor has requested an opportunity to show cause, the justice is obliged to grant a reasonable opportunity for the prosecutor to do so. The length of that reasonable opportunity is limited by s. 516 which precludes a remand of more than three clear days absent the consent of the accused.49 Releasing the accused on “interim bail” without affording the Crown this reasonable opportunity would deny the Crown the right to be heard on the important issue of whether the accused should be detained or released on conditions.50 It would result in the release of the accused into the community without the Crown being given an opportunity to establish why detention in custody was justified on the primary, secondary or tertiary grounds in s. 515(10). The argument that “interim bail” is justified because s. 515(1) “states that unless the Crown shows cause why an accused person’s detention is justified, the justice shall make a release order”51 disregards that section’s requirement that the Crown must be given a reasonable opportunity to show cause.52

23. There are many reasons why a court might be unable to accommodate a substantive bail hearing. For instance, what if the accused was brought to court shortly after being arrested but late in the court day? Or, what if the accused was brought to court in the morning but his defence counsel was unable to attend until just before the end of the court day? What if it was belatedly revealed that an interpreter was required but the necessary interpreter was not available on short notice late in the day? The concept of “interim bail” simply lumps all of these scenarios together, along with myriad others that could occur, as “not reached” cases and says that (1) a remedy is warranted in every case (even though clearly it may not be) and (2) the only remedy in each case is to release the accused without a substantive bail hearing. To avoid this, the Crown and the courts must stand in perfect and perpetual readiness, having conceived of and prepared for every possible situation. “Interim bail” would mean that any failure to do so would result in the accused—even

48 R. v. Pearson, [1992] 3 S.C.R. 665 at 691. 49 R. v. C.G.F., 2003 NSCA 136 at para. 23 (emphasis added). 50 R. v. J.V. (2002), 163 C.C.C. (3d) 507 at paras. 97-119; R. v. Sibbert, 2018 ONSC 2731 at paras. 21-25. 51 CLA factum, para. 26. 52 Similarly, an accused charged with one of the “reverse onus” offences in s. 515(6) bears the onus of showing cause why his detention is not justified and must be given a reasonable opportunity to do so.

one charged with very serious violent offences—being released into the community without a substantive bail hearing. That cannot be the correct result.

24. The proposed remedy of “interim bail” contemplates that it may be necessary to impose conditions on accused during the period of “interim bail”.53 It is unlikely that a court that was unable to accommodate a substantive bail hearing would have the capacity to hold the “interim bail” hearing necessary to address the conditions on which the accused should be released. Those conditions could include the need for sureties, whose suitability would have to be determined. The hearing required to decide the terms of “interim bail” would not necessarily be significantly shorter than a substantive bail hearing. Nor would it be an efficient use of court resources to hold an “interim bail” hearing but then have the accused return to court a few days later for the substantive bail hearing.

25. Concerns relating to adjournments of the substantive bail hearing do not arise on the facts of this case. The sole issue in the courts below was the s. 503(1) violation that occurred when the appellant was brought before a justice thirty-five hours after he was arrested. The appellant’s bail hearing was held as soon as he was brought before a justice, so there was no evidence of any problem involving delays of the substantive bail hearing, and no need for the parties or the courts below to address that issue. “Interim bail” has been proposed as a remedy to a problem that did not exist in this case, but no cases have been cited in which “interim bail” was granted or analyzed, meaning there is nothing in the record or the jurisprudence that would support the adoption of that novel remedy. These issues should be left for a case in which they genuinely arise and where a proper record addressing them has been created.

PART IV: SUBMISSIONS CONCERNING COSTS

26. Not applicable.

PART V: TIME FOR ORAL ARGUMENT

27. The Attorney General of Ontario has been granted five minutes for oral argument.

53 CLA factum, para. 6. 11

PART VI: SUBMISSIONS ON CASE SENSITIVITY

28. Not applicable.

ALL OF WHICH is respectfully submitted by

______David Friesen Counsel for the Intervener, Attorney General of Ontario

DATED at Toronto this 21st day of August, 2020

PART VII: TABLE OF AUTHORITIES

Authorities Paragraph(s) Referenced Mills v. The Queen, [1986] 1 S.C.R. 863 5, 11 Ontario v. 974649 Ontario Inc., 2001 SCC 81 11 R. v. Antic, 2017 SCC 27 15 R. v. Babos, 2014 SCC 16 14 R. v. Brown, [2007] O.J. No. 2830 (Sup. Ct.) 12, 21 R. v. Brown, 2009 ONCA 633 12, 21 R. v. C.G.F., 2003 NSCA 136 16, 22 R. v. C.K., 2005 ONCJ 462 9 R. v. Carter, 2016 ONSC 2832 10 R. v. Carter, 2016 ONSC 4389 10 R. v. Charles (1987), 61 Sask.R. 166 (C.A.) 10, 13 R. v. Chemama, 2016 ONCA 579 7 R. v. Colley, 2018 ONSC 892 7 R. v. Crate, 2019 MBPC 80 8 R. v. Dann, 2002 NSSC 37 10 R. v. Dann, 2002 NSSC 237 10 R. v. Davidson, 2004 ABCA 337 3 R. v. Dawson, 2016 ONSC 3461 8, 13, 18 R. v. Donnelly, 2016 ONCA 988 16 R. v. E.W., 2002 NFCA 49 9 R. v. Gander, 2011 ONSC 3452 9 R. v. Ings (1984), 46 Nfld. & P.E.I.R. 229 (Nfld. Sup. Ct., Tr. Div.) 21 R. v. Ings (1985), 56 Nfld. & P.E.I.R. 53 (Nfld. C.A.) 21 R. v. J.V. (2002), 163 C.C.C. (3d) 507 15, 22 R. v. King, 2019 ONSC 5748 10 R. v. Koszulap (1974), 20 C.C.C. (2d) 193 (Ont. C.A.) 3

Authorities Paragraph(s) Referenced R. v. MacDonald, 2018 NSPC 25 10 R. v. MacDonald, 2019 NSCA 5 10 R. v. MacPherson (1995), 166 N.B.R. (2d) 81 (C.A.) 10 R. v. Mangat (2006), 209 C.C.C (3d) 225 9, 13 R. v. Mendez, 2014 ONSC 498 9 R. v. Nasogaluak, 2010 SCC 6 10 R. v. Pearson, [1992] 3 S.C.R. 665 3, 22 R. v. Prosper, [1994] 3 S.C.R. 236 4 R. v. Raios, 2018 ONSC 6867 9 R. v. Rashid (2009) 243 C.C.C. (3d) 318 (Ont. Sup. Ct.) 10, 13 R. v. Rashid, 2010 ONCA 591 10, 13 R. v. Reilly, 2019 ABCA 212 19 R. v. Rich, 2017 NLTD(G) 92 21 R. v. S.B., 2014 ONCA 527 8, 11 R. v. Sibbert, 2018 ONSC 2731 22 R. v. Simpson (1994), 117 Nfld. & P.E.I.R. 110 13 R. v. Simpson, [1995] 1 S.C.R. 449 13 R. v. Sonne, 2012 ONSC 1741 7 R. v. Storrey, [1990] 1 S.C.R. 241 3, 9 R. v. Sybrandy, [1983] O.J. No. 604 (Prov. Ct.) 10 R. v. Thompson, 2013 ONSC 5915 9 R. v. Vanlerberghe (1973), 13 C.C.C. (2d) 84 (B.C. Sup. Ct.) 21 R. v. Young, 2018 MBQB 147 21 R. v. Zarinchang, 2007 ONCJ 470 12 R. v. Zarinchang, 2010 ONCA 286 12, 15, 18 R. v. Zora, 2020 SCC 14 15 Tyrone-Stewart c. Centre de détention de Montréal, 2007 QCCS 7015 21 Vancouver (City) v. Ward, 2010 SCC 27 5, 11

Secondary Sources Paragraph(s) Referenced Couse, Jeffrey, “‘Jackpot’: The Hang-Up Holding Back the Residual 8 Category of Abuse of Process” (2017), 40(3) Manitoba Law Journal 165 Ontario, Ministry of the Attorney General, Crown Prosecution Manual, 17 “Judicial Interim Release (Bail)” (November 2017) Roach, Kent, Constitutional Remedies in Canada, 2nd ed. Toronto: 10, 11 Thomson Reuters, 2019 (loose-leaf updated October 2019, release 34) Trotter, Gary T., The Law of Bail in Canada, 3rd ed. Toronto: Thomson 3, 13, 16, 21 Reuters, 2010 (loose-leaf updated 2020, release 1) Webster, Cheryl Marie, Anthony N. Doob, and Nicole M. Myers, “The 16 Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” (2009), 21(1) Current Issues in Criminal Justice 79

Legislative Authorities Paragraph(s) Referenced Canadian Charter of Rights and Freedoms, s. 9 4, 5 Charte Canadienne des Droits et Libertés, s. 9 Canadian Charter of Rights and Freedoms, s. 24(1) 5, 11 Charte Canadienne des Droits et Libertés, s. 24(1) Canadian Charter of Rights and Freedoms, s.24(2) 5 Charte Canadienne des Droits et Libertés, s. 24(2) Criminal Code, R.S.C., 1985, c. C-46, s. 503(1) 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, Code criminal, L.R.C. (1985), ch. C-46, s. 503(1) 15, 18, 21, 25 Criminal Code, R.S.C., 1985, c. C-46, s. 515(1) 3, 22 Code criminal, L.R.C. (1985), ch. C-46, s. 515(1) Criminal Code, R.S.C., 1985, c. C-46, s. 515(6) 22 Code criminal, L.R.C. (1985), ch. C-46, s. 515(6) Criminal Code, R.S.C., 1985, c. C-46, s. 515(10) 22 Code criminal, L.R.C. (1985), ch. C-46, s. 515(10) Criminal Code, R.S.C., 1985, c. C-46, s. 516(1) 3, 12, 16, 18, 20, 21 Code criminal, L.R.C. (1985), ch. C-46, s. 516(1)