Contrôle de la détention en vertu de l'article 525

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Principes généraux

Where a detained accused's trial has been delayed beyond a certain duration, the court is obligated to review bail (sometimes called a "90 day Administrative Bail Review"). Section 525 authorizes an automatic review of the terms of detention where the trial has been delayed a period of more than 90 days (for indictable offences) or 30 days (for summary offences).

Section 525 states:

Time for application to judge

525 (1) The person having the custody of an accused — who has been charged with an offence other than an offence listed in section 469 [Infractions pertinentes d'une compétence exclusive], who is being detained in custody pending their trial for that offence and who is not required to be detained in custody in respect of any other matter — shall apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody, if the trial has not commenced within 90 days from

(a) the day on which the accused was taken before a justice under section 503 [taking person before justice after arrest]; or

(b) in the case where an order that the accused be detained in custody has been made under section 521 , paragraph 523.1(3)(b)(ii) [pouvoirs du juge ou du juge lors d'une audience de renvoi – ordonnance de détention] or section 524 [procédure relative à la violation des conditions], or a decision has been made with respect to a review under section 520 [révision de la mise en liberté demandée par l'accusé], the later of the day on which the accused was taken into custody under that order and the day of the decision.

The person shall make the application immediately after the expiry of those 90 days.

[omis (1.1), (2) and (3)]

Consideration of proceeding’s progression

(4) On the hearing described in subsection (1) [examen de la détention en vertu de l'article 525 – délai de présentation de la demande au juge], the judge shall consider whether the prosecutor or the accused has been responsible for any delay and, if the judge is concerned that the proceedings are progressing slowly and that an unreasonable delay may result, the judge may

(a) give directions for expediting the proceedings; or

(b) require a further hearing under this section within 90 days or any other period that the judge considers appropriate in the circumstances.

[omis (5)]

Provisions applicable to proceedings

(6) Sections 495.1 [arrestation sans mandat – pour violation des conditions (524)], 512.3 [mandat de comparaître en vertu de l'article 524], 517 to 519 and 524 [procédure relative à la violation des conditions] apply, with any modifications that the circumstances require, in respect of any proceedings under this section.

[omis (7), (8) and (9) [repealed]]
R.S., 1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90; 1994, c. 44, s. 49; 1997, c. 18, s. 61; 2019, c. 25, s. 235.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Purpose

The purpose of s. 525 is to "is to prevent the accused from languishing for lengthy periods of time in custody and to ensure a prompt trial." It should "facilitate the obtaining of bail and the review of bail applications when originally refused."

It is also meant to be an "independent safeguard function that is particularly important for unrepresented individuals, who may not have had the means, the capacity or the awareness to apply for a s. 520 review."

The is accomplished by requiring "the Court to monitor the continued detention or the accused to ensure that he is not needlessly detained, and to ensure that there is no unreasonable delay in proceeding with the trial."

The section provides "oversight of delays in the trial process even where the defence does not desire a bail review hearing."

Detention Review vs Bail Review

The purpose of a review application under s. 520 [by accused] or 521 [by crown] is to review a prior order. The purpose of a detention review under s. 525 is a review of the detention itself. Detention review is not, however, a reconducted bail hearing. The reviewing judge must "show respect" for the findings of fact of the initial judge and balance factors "in light of the time that has already elapsed and any other relevant considerations."

Threshold Requirements for a Review

There is no requirement that there be an "unreasonable delay" before a review can take place.

The jail or prison detaining an accused is required under s. 525(1)(a)(i) to apply to the "judge immediately upon expiration of 90 days" from the day that he was initially taken before a justice under s. 503 [Compelling detainee to appear before a justice].

Under s. 525(1)(a)(ii), where a "new" detention order is made—or where an "old" detention order is renewed—under s. 520 [accused-request review], 521 [crown-request review], or 524 [review of release on breach], the "clock" will recommence from the date that the order is made.

Applicable Offences

The relevant offence must be one other than an offence under 469.

Applicable Detainees

The right to a Detention review under s. 525 is available to detainees, including those "who have not had a full bail hearing". Those who "do not contest their initial detention" should not be "punished for doing so" by being deprived of a s. 525 hearing.

Section 525 applies to those ordered detained under s. 515 on any of the three grounds of detention. It does not apply for those granted release but had simply not satisfied the conditions of release.

Expiration of Time Period

Should the time period lapse without a review of detetion, the detention does not automatically become unlawful.

Failure of the hearing to proceed on the scheduled date does not result in a loss of jurisdiction.

History

In 1972, s. 525 was introduced in the Bail Reform Act, SC 1970-71-72 c. 37. Its purpose was to "avoid unnecessary pre-trial arrest and detention", ensure the accused "is not unnecessarily held in custody until his trial", "ensure an early trial for those who have been detained in custody pending trial", and "provide statutory guidelines for decision making" to avoid "discretionary injustice".

The amendment to s. 525 made in 1997 introduced reference to s. 520 [accused-requested bail review] in order to remove the possibility that a bail review and detention review can happen in short succession.

Waiver or Cancellation of Hearing

525 [omis (1)]

Waiver of right to hearing

(1.1) However, the person having the custody of the accused is not required to make the application if the accused has waived in writing their right to a hearing and the judge has received the waiver before the expiry of the 90-day period referred to in subsection (1) [examen de la détention en vertu de l'article 525 – délai de présentation de la demande au juge].

[omis (2)]

Cancellation of hearing

(3) The judge may cancel the hearing if the judge receives the accused’s waiver before the hearing.

[omis (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90; 1994, c. 44, s. 49; 1997, c. 18, s. 61; 2019, c. 25, s. 235.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Definition of Quebec Judge

Time for application to judge

525 [omis (1), (1.1), (2), (3), (4), (5) and (6)]

Definition of judge in the Province of Quebec

(7) In this section, judge, in the Province of Quebec,

(a) in the case where the order that the accused be detained in custody has been made by a judge of the superior court of criminal jurisdiction of the Province of Quebec, has the same meaning as in paragraph (b) of the definition judge in section 493 [comparution forcée de l'accusé devant un juge de paix et mise en liberté provisoire – définitions]; and

(b) in any other case, means a judge of the superior court of criminal jurisdiction of the province, a judge of the Court of Quebec or three judges of the Court of Quebec.

[omis (8) and (9) [repealed]]
R.S., 1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90; 1994, c. 44, s. 49; 1997, c. 18, s. 61; 2019, c. 25, s. 235.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

Procedure

Where the accused is represented by counsel, the hearing may be a "brief formality" or may be waived altogether.

Where the detainee is self-represented "judge must take even greater care to safeguard the liberty of the accused in order to maintain public confidence in the justice system."

Automatic Scheduling of Hearings

There is no requirement for the detainee to request the hearing to take place. The detainee, informed of their rights and the purpose of the provision, may "opt-out" of the hearing if they wish.

Burden

The onus is upon the same party who had the onus that the initial bail hearing.

Expediting the Trial

Directions for expediting proceedings

526 Subject to subsection 525(4) [examen de la détention en vertu de l'article 525 – examen de la progression de la procédure], a court, judge or justice before which or whom an accused appears under this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)] may give directions for expediting any proceedings in respect of the accused.

R.S., 1985, c. C-46, s. 526; R.S., 1985, c. 27 (1st Supp.), s. 91; 2019, c. 25, s. 236.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

This discretion should be considered in light of the risk that the case will likely be in violation of the s. 11(b) right against unreasonable delay as well as the risk that the accused may be in a "time-served" position by trial time.

Other factors to be considered on a "forward-looking basis" include:

• "relative complexity of the case",
• "the involvement of co-accused individuals",
• "the completeness of disclosure",
• "problems related to evidence",
• "the presence of any exceptional circumstances" and
• "the typical delay in getting comparable matters to trial in the jurisdiction in question"

The judge may "resolve an outstanding procedural issue" or inquire of counsel of earlier trial dates. However, judges should not be permitted to use s. 525 as a "pretext for judicial micro-management" of a case. "Usually" there should be no inference.

Timing of Hearing

"Forthwith"

The meaning of "forthwith" is equivalent to "as soon as practicable". This will depend on the circumstances of each case.

Calculation of Time Period

Where the accused is subject to multiple detention orders, the 90 day review should take place "forthwith" on the expiration of the later of the detention orders.

Notice

525
[omis (1) and (1.1)]

Notice of hearing

(2) On receiving an application under subsection (1) [examen de la détention en vertu de l'article 525 – délai de présentation de la demande au juge], the judge shall

(a) fix a date for the hearing described in subsection (1) [examen de la détention en vertu de l'article 525 – délai de présentation de la demande au juge] to be held in the jurisdiction

(i) where the accused is in custody, or

(ii) where the trial is to take place; and

(b) direct that notice of the hearing be given to such persons, including the prosecutor and the accused, and in such manner as the judge may specify.

[omis (3), (4), (5), (6), (7), (8) and (9)]
R.S., 1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90; 1994, c. 44, s. 49; 1997, c. 18, s. 61; 2019, c. 25, s. 235.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

Evidence

Given that s. 525(8) incorporates s. 517, 518, and 519 into the hearing, the Crown may show the "circumstances of the alleged offence" and the judge has "wide discretion" to make enquiries and to receive evidence that is "credible or trustworthy." The judge may also rely on transcripts, exhibits and reasons given in prior bail hearings or reviews.

Not every case should require the judge to "revisit an initial detention order." In the absence of a "basis for judicial intervention", the hearing should not be "protracted and formal."

Where there has not been an initial bail hearing, the s. 525 detention review should be conducted as if it was a bail hearing.

Justification for Detention

The main question for the s. 525 hearing is "whether or not the accused should be released from custody", taking into acount "any unreasonable delay into consideration." The accused should be released if the judge "is not satisfied that the continued detention of the accused in custody is justified" under s. 515(10).

The justifications enumerated under s. 515(10) consist of:

515
[omis (1), (2), (2.01), (2.02), (2.03), (2.1), (2.2), (2.3), (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3), (5), (6), (6.1), (7), (8), (9) and (9.1)]

Justification for detention in custody

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[omis (11), (12), (13) and (14)]
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20; 2018, c. 16, s. 218; 2019, c. 25, s. 225.

– CCC (CanLII), (Jus.)

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Delay as a Factor

The reviewing judge must consider the amount of time that has passed in addition to the factors set out in s. 515(10). This includes considering whether the delay "has had ... an impact on the appropriateness or proportionality of the detention", especially being sensitive to whether continued detention "could erode public confidence in the administration of justice."

The delay to be considered includes delay that has already passed as well as the delay anticipated.

The main consideration is proportionality. This would include:

The judge may consider in the analysis whether either party was responsible for "unreasonable" delay.

Release

525
[omis (1), (1.1), (2), (3) and (4)]

Release order

(5) If, following the hearing, the judge is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10) [justification de la détention sous garde], the judge shall make a release order referred to in section 515 [dispositions relatives à la mise en liberté provisoire par voie judiciaire].
[omis (6), (7), (8) and (9)]
R.S., 1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90; 1994, c. 44, s. 49; 1997, c. 18, s. 61; 2019, c. 25, s. 235.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Voir également

• Bail Review
• Section 525 Detention Review (Until December 18, 2019)