R. v. Pearson [1992] 3 S.C.R 665: -- Habeas corpus -- Accused charged with trafficking in narcotics and denied bail -- Accused challenging constitutionality of bail provisions -- Whether habeas corpus available remedy-- Right to bail -- Reverse onus Presumption of innocence -- Arbitrary detention

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law -- Charter of Rights -- Remedy -- Habeas corpus -- Accused charged with trafficking in narcotics and denied bail -- Accused challenging constitutionality of bail provisions -- Whether habeas corpus available remedy -- Canadian Charter of Rights and Freedoms, s. 24(1) -- Constitution Act, 1982, s. 52 -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(d), 520.

Constitutional law -- Charter of Rights -- Right to bail -- Reverse onus -- Accused charged with trafficking in narcotics and denied bail -- Criminal Code provision requiring accused to show cause why detention pending trial not justified -- Whether provision infringes s. 11(e) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(d), 515(10)(b).

Constitutional law -- Charter of Rights -- Fundamental justice -- Presumption of innocence -- Right to bail -- Accused charged with trafficking in narcotics and denied bail -- Criminal Code provision requiring accused to show cause why detention pending trial not justified -- Whether provision infringes s. 7 of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s. 515(6)(d).

Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus -- Bail -- Accused charged with trafficking in narcotics and denied bail -- Criminal Code provision requiring accused to show cause why detention pending trial not justified -- Whether provision infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s. 515(6)(d).

Constitutional law -- Charter of Rights -- Arbitrary detention -- Accused charged with trafficking in narcotics and denied bail -- Criminal Code provision requiring accused to show cause why detention pending trial not justified -- Whether accused arbitrarily detained -- Canadian Charter of Rights and Freedoms, s. 9 -- Criminal Code, R.S.C., 1985, c. C-46, s. 515(6)(d).

Criminal law -- Judicial interim release -- Order of detention -- Accused charged with trafficking in narcotics and denied bail -- Criminal Code provision requiring accused to show cause why detention pending trial not justified -- Whether provision infringes 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)(d), 515(10)(b).

The accused was charged with five counts of trafficking in narcotics, contrary to s. 4 of the Narcotic Control Act, and was ordered detained until trial. At the preliminary inquiry, the accused was committed to trial and the judge refused his application, under s. 523(2)(b) of the Criminal Code, to review the order denying bail. The accused then brought an application for habeas corpus, arguing that s. 515(6)(d) of the Code is unconstitutional, and that accordingly his detention was illegal. This section provides that an accused 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, shall be detained in custody until trial unless he shows cause why his detention is not justified. The Superior Court judge dismissed the accused's application on the ground that there was an alternative remedy, namely a review of the bail order under s. 520 of the Code. The Court of Appeal allowed the accused's appeal, holding that habeas corpus was an available remedy in the circumstances and that s. 515(6)(d) of the Code violates ss. 9, 11(d) and 11(e) of the Canadian Charter of Rights and Freedoms and is not justified under s. 1. The court found it unnecessary to analyze s. 515(6)(d) under s. 7 of the Charter.

Held (La Forest and McLachlin JJ. dissenting): The appeal should be allowed and the application for habeas corpus dismissed.

(1) Habeas Corpus

In the narrow circumstances of this case, habeas corpus is available as a remedy against a denial of bail. The accused's claim is a special type of constitutional claim. He is seeking (1) a determination that s. 515(6)(d) of the Code violates the Charter and therefore is of no force and effect under s. 52 of the Constitution Act, 1982; and (2) a remedy under s. 24(1) of the Charter, namely a new bail hearing in accordance with criteria for determining bail which are constitutionally valid. Where the refusal to grant bail is challenged in a s. 52 claim coupled with an application for a remedy under s. 24(1), habeas corpus is an adequate remedy. The constitutional claim can be determined without evidence about the applicant's specific circumstances. If the claim is successful, the court can then order a new bail hearing. In these circumstances, an application for habeas corpus must not fail merely because another remedy is also available. Technical legal distinctions which interfere with the court's ability to adjudicate Charter claims are to be rejected. Outside the narrow circumstances of this case, however, habeas corpus is not an appropriate remedy for a denial of bail. Under s. 24(1) of the Charter, courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process. In general, a challenge to a denial of bail should be brought by means of a review under s. 520 of the Code.

(2) Validity of s. 515(6)(d) of the Criminal Code

Per Lamer C.J. and Sopinka and Iacobucci JJ.: Section 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.

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. This section has no application at the bail stage of the criminal process where guilt or innocence is not determined and where punishment is not imposed. But s. 11(d) does not exhaust the operation of the presumption of innocence as a principle of fundamental justice under s. 7 of the Charter. The presumption of innocence under s. 7 applies at all stages of the criminal process and its particular requirements will vary according to the context in which it comes to be applied. In this case, however, the Charter challenge falls to be determined according to s. 11(e) of the Charter, rather than under s. 7. Section 11(e) offers "a highly specific guarantee" which covers precisely the accused's complaint. The substantive right in s. 7 to be presumed innocent at the bail stage does not contain any procedural content beyond that contained in s. 11(e).

Section 11(e) creates a broad right guaranteeing both the right to obtain bail and the right to have that bail set on reasonable terms. The meaning of "bail" in s. 11(e) includes all forms of judicial interim release. While s. 515(6)(d) 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, it provides "just cause" to deny bail in certain circumstances and therefore does not violate s. 11(e). First, the denial of bail occurs only in a narrow set of circumstances. Second, it is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to the bail system. Section 515(6)(d) applies only to a very small number of offences, all of which involve the distribution of narcotics, and bail is denied only when the persons who are charged with these offences are unable to demonstrate that detention is not justified having regard to the specified grounds set out in s. 515(10)(a) and (b) of the Code. The special bail rules in s. 515(6)(d) merely establish an effective bail system for specific offences for which the normal bail system would allow continuing criminal behaviour and an intolerable risk of absconding. Because of their unique characteristics, the offences subject to s. 515(6)(d) are generally committed in a very different context than most other crimes. Trafficking in narcotics occurs systematically, usually within a highly sophisticated and lucrative commercial setting, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail. There is also a marked danger that an accused charged with these offences will abscond rather than appear for trial. Drug importers and traffickers have access both to a large amount of funds and to organizations which can assist in a flight from justice. The special bail rules in s. 515(6)(d) combat the pre-trial recidivism and absconding problems by requiring the accused to demonstrate that they will not arise. The scope of these special rules is thus carefully tailored to achieve a properly functioning bail system. Section 515(6)(d) also applies to small or casual drug dealers, but they will normally have no difficulty justifying their release and obtaining bail. Section 515(6)(d) allows differential treatment based on the seriousness of the offence. Moreover, the onus which it imposes is reasonable in the sense that it requires the accused to provide information which he is most capable of providing.

While s. 515(6)(d) provides for persons to be "detained" within the meaning of s. 9 of the Charter, those persons are not detained "arbitrarily". Detention under s. 515(6)(d) is not governed by unstructured discretion. The section fixes specific conditions for bail. Furthermore, the bail process is subject to very exacting procedural guarantees and subject to review by a superior court.

Normally an order for a new bail hearing would have been issued under s. 686(8) of the Code and a reasonable opportunity given to the accused to show cause why his detention is not justified having regard to the grounds set out in s. 515(10), including s. 515(10)(b) as altered by this Court in Morales. There will be no such order in this case, however, since the accused has already been tried, convicted and sentenced. That order would be of no force or effect as the issue of the accused's liberty is moot.

Per L'Heureux-Dubé and Gonthier JJ.: The reasons of Lamer C.J. were agreed with, subject to the reasons of Gonthier J. in Morales in which he concludes that the criterion of public interest in s. 515(10)(b) of the Code is not unconstitutional, and subject to some concerns about the manner in which the presumption of innocence, as an integral value protected by s. 7 of the Charter, is dealt with by the Chief Justice in relation to the bail provisions of the Code. The analysis leading to the decision as to bail entails a consideration and weighing of the accused's entitlement to bail or liberty interest on the one hand, and the circumstances provided for in s. 515(10) which may justify a denial of bail on the other. The liberty interest is only one albeit an important factor to be considered and may be outweighed by others.

Per McLachlin J. (dissenting): The reasons of Lamer C.J. were agreed with except for his conclusion that s. 515(6)(d) of the Code does not violate s. 11(e) of the Charter. Section 515(6)(d) denies bail to all persons charged with having committed an offence under s. 4 or 5 of the Narcotic Control Act who cannot show cause why their detention in custody is not justified. This section fails to distinguish between the large-scale commercial drug trafficker and small or casual traffickers and its wide scope can be used to deny bail to people when there is no reason or "just cause" for doing so. The risk that the accused will continue his criminal activity while awaiting trial or will abscond and not appear for trial may be "just cause" for denying bail to persons charged with serious, large-scale or commercial trafficking, but these reasons do not apply to other traffickers. Where bail is denied without just cause, s. 11(e) of the Charter is infringed. The mere possibility of denial of bail without "just cause" is enough to overturn s. 515(6)(d).

Section 515(6)(d) of the Code is not justifiable under s. 1 of the Charter. While the legislative objectives of avoiding repeat offences and absconding are of sufficient importance to warrant overriding a constitutional right, s. 515(6)(d) goes further than is necessary to achieve those objectives. There is no reason to conclude that small and casual traffickers pose any particular threat of repeating the offence or fleeing from their trial. Section 515(6)(d) is thus of no force and effect pursuant to s. 52 of the Constitution Act, 1982.

Per La Forest J. (dissenting): For the reasons given by McLachlin J., s. 515(6)(d) of the Code violates s. 11(e) of the Charter and is not justifiable under s. 1. It is unnecessary to deal with the other provisions of the Charter.

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