R. v. Morales [1992] 3 S.C.R. 711: Right to bail -- Reverse onus provision -- Order of detention --Justification for detention in custody -- when necessary in the public interest or for the protection or safety of the public -- criteria of public interest and public safety – vagueness-- Arbitrary detention

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE SUPERIOR COURT FOR QUEBEC

Constitutional law -- Charter of Rights -- Right to bail -- Reverse onus provision -- Order of detention -- Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Criminal Code to show cause why detention pending trial not justified -- Whether ss. 515(6)(a) and 515(6)(d) infringe s. 11(e) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(a), 515(6)(d).

Constitutional law -- Charter of Rights -- Right to bail -- Justification for detention in custody -- Detention of accused justified under s. 515(10)(b) of Criminal Code when necessary in the public interest or for the protection or safety of the public -- Whether criteria of public interest and public safety in s. 515(10)(b) infringe s. 11(e) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -- Vagueness -- Criminal Code, R.S.C., 1985, c. C-46, s. 515(10)(b).

Constitutional law -- Charter of Rights -- Fundamental justice -- Presumption of innocence -- Right to bail -- Detention of accused justified under s. 515(10)(b) of Criminal Code when necessary in the public interest or for the protection or safety of the public -- Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Code to show cause why detention pending trial not justified -- Whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) infringe s. 7 of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(a), 515(6)(d), 515(10)(b).

Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus -- Bail -- Detention of accused justified under s. 515(10)(b) of Criminal Code when necessary in the public interest or for the protection or safety of the public -- Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Code to show cause why detention pending trial not justified -- Whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) infringe s. 11(d) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(a), 515(6)(d), 515(10)(b).

Constitutional law -- Charter of Rights -- Arbitrary detention -- Detention of accused justified under s. 515(10)(b) of Criminal Code when necessary in the public interest or for the protection or safety of the public -- Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Code to show cause why detention pending trial not justified -- Whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) infringe s. 9 of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(a), 515(6)(d), 515(10)(b).

Criminal law -- Judicial interim release -- Order of detention -- Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Criminal Code to show cause why detention pending trial not justified -- Whether ss. 515(6)(a) and 515(6)(d) infringe ss. 7, 9, 11(d) or 11(e) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(a), 515(6)(d).

Criminal law -- Judicial interim release -- Justification for detention in custody -- Detention of accused justified under s. 515(10)(b) of Criminal Code when necessary in the public interest or for the protection or safety of the public -- Whether criteria of public interest and public safety in s. 515(10)(b) infringe ss. 7, 9, 11(d) or 11(e) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s. 515(10)(b).

The accused was charged with narcotics offences under ss. 4 and 5 of the Narcotic Control Act and s. 465(1)(c) of the Criminal Code. He is alleged to have participated in a major network to import cocaine into Canada. At the time of his arrest, he was awaiting trial for assault with a weapon, an indictable offence. The accused was denied bail and was ordered detained in custody until trial. Under the bail provisions of the Criminal Code, an accused is normally granted bail but pre-trial detention is justified when the "detention is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice" (s. 515(10)(b)). Under s. 515(6), the onus is on the accused to show cause why the detention is not justified when he is charged with an indictable offence "that is alleged to have been committed while he was at large after being released in respect of another indictable offence" (s. 515(6)(a)), or charged with having committed a drug offence under s. 4 or 5 of the Narcotic Control Act or with conspiracy to commit any of these offences (s. 515(6)(d)). The accused's application for a review of the detention order, made to a superior court judge pursuant to s. 520 of the Code, was granted and he was released subject to a number of conditions. The judge held that pre-trial detention is only justified where it is established that the accused will not appear for trial or would represent a danger to public safety if released. The Crown appealed to this Court. This appeal is to determine whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) of the Criminal Code infringe ss. 7, 9, 11(d) or 11(e) of the Canadian Charter of Rights and Freedoms; and, if so, whether the infringement is justified under s. 1 of the Charter.

Held: The appeal should be allowed.

Per Lamer C.J. and La Forest, Sopinka, McLachlin and Iacobucci JJ.: For the reasons given in Pearson, the "public safety" component of s. 515(10)(b) is constitutionally valid. Section 11(d) of the Charter creates a procedural and evidentiary rule which operates at the trial requiring the prosecution to prove the guilt of the accused beyond a reasonable doubt. It has no application at the bail stage where guilt or innocence is not determined and where punishment is not imposed. The "public safety" component of s. 515(10)(b) therefore does not infringe s. 11(d). With respect to s. 7 of the Charter, the accused's challenge should be determined under s. 11(e) of the Charter because that section offers a highly specific guarantee which covers precisely his claim. The presumption of innocence is a principle of fundamental justice which applies at all stages of the criminal process, but its procedural requirements at the bail stage are satisfied whenever the requirements of s. 11(e) are satisfied. This section creates a basic entitlement to be granted reasonable bail unless there is "just cause" to do otherwise. There is just cause to deny bail under s. 11(e) if two criteria are met: the denial of bail must occur only in a narrow set of circumstances, and the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system. The "public safety" component of s. 515(10)(b) meets these criteria. First, bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. Second, the bail system does not function properly if an accused interferes with the administration of justice or commits crimes while on bail. While it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated. It is sufficient that the bail system establish a likelihood of dangerousness. The bail provisions of the Code also provide for substantial procedural safeguards against the inefficacy of predictions about dangerousness. Finally, with respect to s. 9 of the Charter, while the "public safety" component of s. 515(10)(b) provides for persons to be "detained" within the meaning of s. 9, those persons are not detained "arbitrarily". Detention under the "public safety" component of s. 515(10)(b) is not governed by unstructured discretion. The "public safety" component sets out a process with fixed standards and sets specific conditions for bail. Furthermore, the bail process is subject to very exacting procedural guarantees. It follows that the "public safety" component of s. 515(10)(b) does not violate s. 9.

The "public interest" component as a basis for pre-trial detention under s. 515(10)(b) violates s. 11(e) of the Charter, however, because it authorizes detention in terms which are vague and imprecise and thus authorizes a denial of bail without just cause. The term "public interest", as currently defined by the courts, is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way. Nor would it be possible to give that term a constant or settled meaning. The term gives the courts unrestricted latitude to define any circumstances as sufficient to justify pre-trial detention but creates no criteria for defining these circumstances. No amount of judicial interpretation of the term "public interest" would be capable of rendering it a provision which gives any guidance for legal debate. Such unfettered discretion violates the doctrine of vagueness. This doctrine applies to all types of enactments and is not restricted to provisions which define an offence or prohibit certain conduct. The principles of fundamental justice preclude a standardless sweep in any provision which authorizes imprisonment. A standardless sweep does not become acceptable simply because it results from the discretion of judges and justices of the peace rather than the discretion of law enforcement officials.

The violation of s. 11(e) is not justified under s. 1 of the Charter. Even if the term "public interest" is not too vague to constitute a limit "prescribed by law", it cannot be justified under the Oakes test. While the objectives of preventing crime and preventing interference with the administration of justice by those who are on bail are of sufficient importance to warrant overriding a constitutionally protected right, the "public interest" component of s. 515(10)(b) does not meet the proportionality test. There is no rational connection between the measure and the objectives. The provision is so vague that it does not provide any means to determine which accused are most likely to commit offences or interfere with the administration of justice while on bail. It accordingly authorizes pre-trial detention in many cases which are not related to the objectives of the measure. Further, the measure does not impair rights as little as possible. The vague and overbroad concept of public interest permits far more pre-trial detention than is required to meet the objectives. Finally, there is no proportionality between the effects of the measure and its objectives. By authorizing excessive pre-trial detention, the effects of the limit far exceed the objectives of the measure. The "public interest" component of s. 515(10)(b) is thus unconstitutional. The offending words, specifically "in the public interest or", are severable and should be struck down pursuant to s. 52 of the Constitution Act, 1982. The criteria of "public interest" and "public safety" in s. 515(10)(b) are disjunctive and striking down the specific offending provision does not defeat the unitary scheme envisaged by Parliament. The balance of the provision can stand as a functioning whole.

In light of Pearson, s. 515(6)(d) of the Code, to the extent that it requires the accused to show cause why detention is not justified, does not violate ss. 7, 9, 11(d) or 11(e) of the Charter.

This conclusion is also applicable to s. 515(6)(a) of the Code. Since s. 11(d) of the Charter is not applicable at the bail stage, s. 515(6)(a) therefore does not infringe s. 11(d). With respect to s. 7 of the Charter, the accused's case should be analysed under s. 11(e) rather than the more general provisions of s. 7. While s. 515(6)(a) requires the accused to demonstrate that detention is not justified, thereby denying the basic entitlement under s. 11(e) to be granted bail unless pre-trial detention is justified by the prosecution, s. 515(6)(a) provides just cause to deny bail. First, the denial of bail occurs only in a narrow set of circumstances. Section 515(6)(a) applies only to indictable offences and denies bail only when the persons who have been charged with an indictable offence while on bail for another indictable offence do not show cause why detention is not justified. Second, the denial of bail is necessary to promote the proper functioning of the bail system. The special bail rules in s. 515(6)(a) do not have any purpose extraneous to the bail system, but rather merely establish an effective bail system in circumstances where there are reasonable grounds to believe that the normal bail system is permitting continuing criminal behaviour. By requiring the accused to justify bail, s. 515(6)(a) seeks to ensure that the objective of stopping criminal behaviour will be achieved. The scope of these special rules is thus carefully tailored to achieve a properly functioning bail system. With respect to s. 9 of the Charter, s. 515(6)(a) does not provide for "arbitrary" detention. Like s. 515(6)(d), s. 515(6)(a) sets out a process which is not discretionary and which is subject to fixed standards. Section 515(6)(a) contains highly structured criteria and sets out specific conditions for bail. In addition, the bail process is subject to very exacting procedural guarantees and subject to review by a superior court.

The Superior Court did not err in holding that pre-trial detention is only justified where it is established that the accused will not appear for trial or would represent a danger to public safety if released. These two grounds are the only grounds specified in s. 515(10) which survive Charter challenge. However, the Superior Court did err in refusing to apply the procedure mandated by ss. 515(6)(a) and 515(6)(d), both of which are constitutionally valid. As a result, the matter must be remitted to the Superior Court for a new bail review under s. 520 in which ss. 515(6)(a) and 515(6)(d) are applied and s. 515(10)(b) is applied after severance of the words "in the public interest or".

Per L'Heureux-Dubé and Gonthier JJ.: The reasons of Lamer C.J. were agreed with, except for his finding that the criterion of "public interest" in s. 515(10)(b) of the Code is unconstitutional on grounds of vagueness. Public interest, as referred to in s. 515(10)(b), falls within the purview of the concept of "just cause" in s. 11(e) of the Charter and is intended to be one particularization of just cause. It is thus in terms of the entire concept that the meaning of public interest must be understood. The evaluation and elaboration of a "public interest" criterion must also proceed with reference to the particular context in which it is to operate. The identification of a measure of discretion conferred by means of a legislative provision cannot alone provide the basis for a constitutional evaluation of that provision.

The general sense of the phrase "public interest" refers to the special set of values which are best understood from the point of view of the aggregate good and are of relevance to matters relating to the well-being of society. Public interest is at the heart of our legal system and inspires all legislation as well as the administration of justice. The breadth of the concept is a necessary aspect of a notion which accommodates a host of important considerations which permit the law to serve a necessarily wide variety of public goals. At the same time, the notion of public interest operates as a reference for the rules of law which bear upon legal determinations of when the interest of the public will be specially considered, the relationship which those interests will have to other interests which fall to be considered, and the extent to which the public interest is to be protected by the law.

A bail application does not involve a finding of guilt as to past conduct. It is rather concerned with governing future conduct during the interim period awaiting trial. What is at issue are the reasons for detention. The criterion set by the Charter is that of just cause. This implies (1) a cause or reason and (2) a proportionality between the reason and the deprivation of liberty that makes the cause "just". Public interest, as used in s. 515(10), must be understood in this context and considered in relation to two main elements: the element of necessity, which involves a causal link between the public interest and the detention such as to make the detention necessary and not merely convenient or desirable and which is also an element of importance, weight or seriousness of the public interest such as to outweigh the accused's right to personal liberty; and the element of seriousness of the public interest, which serves to qualify the other element, namely the content of the considerations that may be included within the public interest criterion. The considerations to be weighed in determining the public interest are those which are consistent with the safeguarding of the fundamental values of the rule of law and the Charter, including the maintenance of order and security and a respect for the fundamental individual and collective rights of others. Also important is the consideration that the criterion of necessity is capable of encompassing circumstances which have not been foreseen, or are unforeseeable, but which undoubtedly provide just cause for denying bail within the meaning of s. 11(e) of the Charter. Public interest, as used in s. 515(10), thus provides for flexibility, not vagueness. Its dual requirements of public interest and necessity, which itself predicates a public interest of a serious nature, have meaning, give rise to legal debate and, though broad, are not vague but provide an adequate framework and limit for the exercise of judicial discretion and a means for controlling such exercise while at the same time allowing for the flexibility required for an effective administration of justice and implementation of the rule of law. It must be underlined that the bail process is subject to very exacting procedural guarantees which both structure and guide the exercise of judicial discretion.

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