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Case Name:
R. v. Hudson

Between
Her Majesty the Queen, Respondent, and
Damian Hudson, Applicant

[2011] O.J. No. 4195

2011 ONSC 5176

107 O.R. (3d) 568

275 C.C.C. (3d) 283

97 W.C.B. (2d) 478

88 C.R. (6th) 264

2011 CarswellOnt 9780

Court File No. M102/10

Ontario Superior Court of Justice

G. Trotter J.

Heard: July 8, 2011.

Judgment: September 21, 2011.

(23 paras.)

Criminal law -- Compelling appearance, detention and release -- Judicial interim release or bail --
Ground for denial -- Detention necessary for protection of public -- Review of -- Application by
accused for review of detention order dismissed -- Accused was charged with numerous offences
arising from two gunpoint robberies -- Accused's continued detention easily justified on secondary
grounds given related criminal record, strong Crown case, failure to comply with bail orders and
trial date five weeks away -- Detention order under s. 515 was made on accused's consent, without
bail hearing, because he was unprepared -- Thus, while order triggered review process under s.
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520, this was not true review -- Court recommended discontinuing practice of requiring accused
persons to consent to detention order or have hearing and permit adjourning hearing sine die.

Application by the accused for a review of the detention order. The accused was charged with
numerous offences arising from two gunpoint robberies that occurred one week apart. The accused
did not have a release plan in place so had consented to a detention order. The accused was now
ready to present a release plan.

HELD: Application dismissed. The accused's detention was easily justified on the secondary
grounds, given his related criminal record, strong Crown case, failure to comply with bail
conditions and a trial just five weeks away. As a bail hearing was not actually conducted by the
Ontario Court of Justice, this was not truly a review. However, since the detention order had been
made pursuant to s. 515 of the Criminal Code, the review provisions under s. 520 were triggered.
The court recommended that the practice of requiring accused persons to either consent to a
detention order or have a bail hearing at that time be discontinued. There were many legitimate
reasons an accused person may not be prepared to avail self of the right to a bail hearing and there
was no justification for requiring him to waive his rights. The court noted that this practice had
likely begun in Toronto because of systemic pressures, but recommended that accused persons who
were unprepared be permitted to request their bail hearing be adjourned sine die.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 7, s.
8, s. 11(e)

Criminal Code, R.S.C. 1985, c. C-46, s. 2, s. 469, s. 515(1), s. 515(2), s. 515(5), s. 515(6), s. 516, s.
520, s. 520(7), s. 521, s. 522, s. 523(2), s. 524, s. 525, s. 680

Counsel:

Jennifer Crawford, for the Crown.

Evan Chang, for the Applicant.

[Editor's note: An amended judgment was released by the Court October 6, 2011. The changes were not indicated. This document contains the
amended text.]

REASONS FOR JUDGMENT

G. TROTTER J.:--
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INTRODUCTION

1 This judgment considers the procedural implications for a detained person who is not ready for
a bail hearing. Mr. Hudson was such a person. Mr. Hudson stands charged with numerous offences
arising from two incidents in which it is alleged he was involved in two gunpoint robberies, a week
apart. On March 25, 2011, before His Worship Justice of the Peace D. Wright, Mr. Hudson
consented to his detention. At that time, Mr. Hudson's counsel advised the court that his client did
not have an adequate release plan. Accordingly, he was ordered detained.

2 After the passage of some time, Mr. Hudson decided that he was ready to have a bail hearing.
On July 8, 2011, Mr. Hudson applied under s. 520 of the Criminal Code to "review" and set aside
the detention order to which he consented. When the case came before me, there was nothing for me
to "review" in the traditional sense because the learned Justice of the Peace had merely given effect
to Mr. Hudson's consent to be detained. I was essentially being asked to conduct a fresh bail hearing
under s. 515 of the Criminal Code.

3 At the outset of the hearing, I requested submissions on the propriety of this practice. In short, I
wanted to know why the matter should not return to the Ontario Court of Justice for a bail hearing.
Both counsel, especially Mr. Chang on behalf of Mr. Hudson, urged me to conduct the "review"
hearing. Both counsel were prepared and ready to proceed. Moreover, Mr. Hudson's proposed
sureties were present in court, having taken time off from work to attend the hearing. This last
factor persuaded me that it was in the interests of justice to decide the case on its merits. However, I
invited further submissions from counsel on the practice of conducting original bail hearings in this
Court under the guise of a s. 520 bail review.1

DECISION ON THE MERITS

4 After reviewing the materials filed in support of the application and upon hearing the
submissions of counsel, I decided that Mr. Hudson's detention was easily justified on the secondary
ground. My conclusion was based largely on Mr. Hudson's related criminal record, which included
findings of guilt and convictions for failing to comply with bail orders. I also took into account what
appeared to be a strong Crown case. Moreover, at the time of the hearing, Mr. Hudson's trial was a
mere five weeks away. For these reasons, I concluded he should remain in custody pending his trial.
Accordingly, the application was dismissed on its merits. However, I advised counsel that I would
issue reasons concerning the procedural issue identified above.

THE APPROPRIATE FORUM

(a) Introduction

5 I turn now to the issue of whether this bail hearing should have been conducted in the Ontario
Court of Justice as opposed to this Court. To answer this question, it is helpful to consider some of
the general features of Part XVI of the Criminal Code. Quite clearly, Parliament intended that, in
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the case of offences not listed in s. 469, bail hearings are to be conducted by a "justice" under s.
515.2 Correspondingly, for offences listed in s. 469, bail hearings are to be conducted by judges of
superior courts of criminal jurisdiction pursuant to s. 522.

6 Because the question of bail is always a live issue during a criminal prosecution,3 there are
established avenues by which original bail decisions may be challenged (because of error or, more
controversially, by way of a fresh exercise of discretion) or reconsidered in light of changed
circumstances. For non-s. 469 offences, the Criminal Code provides a right of review at the behest
of both the accused (s. 520) and the Crown (s. 521) in a superior court of criminal jurisdiction
(which in Ontario, is this Court). For s. 469 offences, reviews are conducted in the Court of Appeal
in accordance with s. 680.4

7 The upshot of all of this is that the Criminal Code assigns judges of this Court the task of
reviewing decisions made by justices under s. 515, just as judges of the Court of Appeal are meant
to review the bail decisions of judges of this Court dealing with s. 469 offences. It is not open to a
person charged with a s. 469 offence to by-pass this Court and go directly to the Court of Appeal to
obtain bail. Similarly, it should not be open to an accused person charged with an offence not listed
in s. 469 to essentially do the same thing and by-pass the Ontario Court of Justice and have what is
essentially an original bail hearing under s. 520 of the Criminal Code.

8 Almost on a daily basis, judges of this Court are asked to exercise their powers under ss. 520
and 521 of the Criminal Code. The vast majority of these applications follow contested bail
hearings before a justice of the peace or a judge sitting in the Ontario Court of Justice. However, a
significant number of applications under s. 520 involve accused persons who, for whatever reason,
previously consented to their own detention. Under the auspices of s. 520, judges of this Court are
essentially asked to conduct bail hearings under s. 515 of the Criminal Code, a function clearly
assigned by legislation to another court.

9 There is a reason why counsel invoke s. 520 to address consent detention orders. This is due to
the fact that Part XVI of the Criminal Code requires that, when a justice addresses the bail issue on
a substantive basis, he or she must either make an order for release under s. 515(1) or (2), or make
an order for detention. In the case of Crown onus offences, if the Crown shows cause (or if the
accused agrees that the Crown would be able to show cause), the justice must make an order for
detention under ss. 515(5). In the case of reverse onus situations, ss. 515(6) requires the same. Once
a detention order is made under either of these subsections, it cannot be set aside by a justice acting
under s. 515; it may only be set aside through s. 520.5 The real issue is whether justices should be
making detention orders when an accused person does not wish to have a bail hearing (as opposed
to simply adjourning the bail hearing until the accused person is ready).

(b) The Present Practice: Its Origins and Propriety

10 As things presently stand in Toronto, subject to routine requests for short adjournments under
s. 516 of the Criminal Code, an accused person is expected to either have a bail hearing under s.
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515 or consent to his or her detention. Unless it is for a short period of time, an accused is generally
not permitted to adjourn the bail hearing indefinitely, until he or she is ready to exercise that right.
Hence the requirement for accused persons to consent to their detention if they do not wish to move
forward at that point. Why is an accused person not permitted to simply postpone exercising his or
her right to a bail hearing until a more advantageous time instead of being forced to agree to a
detention order that can only be set aside by the Superior Court?

11 On the surface, this would appear to be a straightforward matter with a clear answer. But when
it comes to questioning matters of procedure and local administrative practices in the courts, one is
often confronted with the apparently self-explanatory answer: "This is how it has always been
done." And that is the case here. Interestingly, it is not done the same way in many other parts of
this province. So, why is it done in Toronto?

12 There would appear to be systemic pressures in place that encourage the present procedure. In
Toronto, it seems that, for organizational purposes, the Crown's office is not prepared to provide
disclosure until a case has "cleared" or passed through the bail stage of the proceedings. This is not
to say that proper disclosure for bail purposes is being withheld. It means that the procedure for
assembling, collecting and organizing disclosure materials for trial will not commence until the
accused person has passed through the bail process and is either released or detained (by consent or
otherwise). But there is no justification for delaying otherwise available disclosure until an accused
person has cleared the first-level bail hearing stage. The right to bail (s. 11(e) of the Charter) and
the right to Crown disclosure (s. 7 of the Charter) operate independently of each other. Timely
disclosure is an integral right in the criminal process that clearly trumps other organizational
practices put in place by the Crown: see R. v. Stinchcombe (1992), 68 C.C.C. (3d) 1 (S.C.C.) and the
discussion in Don Stuart, Charter Justice in Canadian Criminal Law (Scarborough, Ont.: Carswell,
2010), at pp. 185-192. While the Crown controls the timing of disclosure to a certain degree, it was
not demonstrated to me that an accused is not entitled to disclosure because he or she has yet to pass
through bail court in a manner that is satisfactory to the Crown. More importantly for present
purposes, this organizational convenience is not a proper basis upon which to require an accused
person to consent to his or her detention.

13 It would also appear that, in Toronto, an accused person is not permitted to set a date for his or
her trial (or preliminary inquiry) before the bail issue yields a result of release or detention.6 Setting
timely trial dates, for a court as busy as the Ontario Court of Justice, is a complicated matter. Quite
rightly, accused persons detained in custody are given priority when it comes to setting trial or
preliminary inquiry dates. This is based on the goal of mitigating the hardship of pre-trial custody.
As the Crown submits, before a so-called "in custody" trial date is set, the system needs to know
whether the accused will be in custody by the time of trial or whether he or she will be on release.
As with disclosure, for scheduling purposes, the system is confounded by someone who is in "bail
limbo." The system does not know what stream to put such a person into: custody or out of custody.
The Crown submits that, if an accused person waives his or her bail hearing and gets an in custody
date, only to successfully apply for bail later, he or she wreaks havoc with the "in custody" trial date
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allotment. As the argument goes, that person unfairly benefits from an earlier trial date, one that
should be assigned to someone who is in pre-trial custody at the time of trial. For this reason, in
Toronto at least, there is pressure on an accused person who is not ready for a bail hearing to
consent to his or her detention so that effective court scheduling may proceed.

14 While giving priority to in custody accused is obviously a very important objective of any
rational approach to criminal trial scheduling, I am not persuaded that it justifies the present practice
of insisting on consent detentions when an accused person is not ready for a bail hearing. The
laudable goal of effective trial scheduling may be achieved without insisting on consent detention
orders. In any event, the same problem (from the Crown's perspective) will occur in the case of an
accused person who is detained in custody after a contested bail hearing (and who obtains an in
custody trial date), only to be released down the road after a review under ss. 520, 523 or 525 of the
Criminal Code. Indeed, the same problem is likely to occur in circumstances where an accused who
consents to his or her detention is released after a bail "review" under s. 520 of the Criminal Code.

15 This seemingly technical issue should also be considered from a broader, constitutional
perspective. Like all legal rights under the Charter, the right to reasonable bail in s. 11(e) of the
Charter is one that belongs to an accused person. An accused person is not required to immediately
and simultaneously pursue all of his or her rights. For instance, the right to a jury trial may not be
invoked at all, or it may be invoked later on in the proceedings (if in compliance with the re-election
provisions of the Criminal Code). Similarly, an accused may waive the benefits inherent in the right
to counsel at various junctures of the process, just as anyone is free to abandon their privacy
interests for the purposes of s. 8 of the Charter.

16 Returning to bail, as far as I can tell, there is no corresponding right of the Crown to obtain a
detention order if the accused person does not wish to immediately exercise his or her rights under
s. 11(e). Again, s. 11(e) confers a personal right on the accused person. Only he or she can decide if
and when to apply for bail.

17 Part XVI of the Criminal Code was originally designed to provide accused persons with
speedy access to the court process for the purposes of a bail determination. This is because of the
well-known hardships associated with pre-trial detention: see R. v. Wust (2000), 143 C.C.C. (3d)
129 (S.C.C.), at p. 148. For example, s. 503 places strict obligations on the police to bring a
detained person before a justice of the peace: see R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.)
and Toronto Newspapers Ltd. v. Canada (Attorney General) (2010), 239 C.C.C. (3d) 437 (S.C.C.).

18 Similarly, s. 516 of the Criminal Code places limitations on how long a bail hearing may be
adjourned. Without the consent of the accused, the outside marker is "three clear days." The failure
to meet this reasonable threshold has been well litigated under the Charter: see, most recently, R. v.
Zarinchang (2010), 254 C.C.C. (3d) 133 (Ont. C.A.), R. v. Rashid (2010), 259 C.C.C. (3d) 289
(Ont. C.A.) and R. v. Ward, 2011 ONCA 267. However, Part XVI was never designed to force an
accused person into a hearing on such an important issue at an ill-advised or inopportune time.
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Section 516 places strict, constitutionally guarded limitations on how long the Crown may seek to
delay or postpone a bail hearing. But there is no corresponding limitation on how long an accused
person may delay exercising his or her right to apply for bail. This was recognized over 30 years
ago in R. v. Adams (1978), 45 C.C.C. (2d) 459 (B.C.C.A.), in which Seaton J.A. said at p. 464:
"[T]he key to the adjourning provisions is that the accused is put in control. Only he can consent to
a long adjournment. The Crown cannot prevent such an adjournment ..." I agree with this statement.

19 There are many legitimate reasons why an accused person may not wish to avail himself or
herself of the right to a bail hearing. In the unexpected chaos that often descends on an accused's life
after being charged, there may be no viable plan of release to put forward. This situation may not be
rectified even after a number of adjournments. It may take some time to construct a release plan.
Moreover, an accused person may have outstanding charges or already be subject to a sentence,
making a successful bail application unlikely. For various reasons, an accused person may not wish
to seek bail immediately, or even in the near future. And there is nothing wrong with this. There is
no competing constitutional principle that requires the accused to seek release within a time frame
set by the Crown. Similarly, and stemming from this, there is no justification for requiring an
accused person to waive his or her rights under s. 11(e) of the Charter in order to suit the
scheduling exigencies of the trial court. The same goals can be achieved in a different manner, one
that better respects the right to bail.

(c) A Proposed Approach

20 When an accused person appears in court and is not prepared to embark upon a bail hearing
within a specified time frame, he or she should not be faced with the prospect of having to consent
to detention in order to facilitate moving the case along (in terms of disclosure and scheduling).
Once in place, it takes some time and effort to set aside a detention order. Success is far from
guaranteed. In these circumstances, the justice of the peace or judge should adjourn the hearing sine
die and allow the accused's case to move forward in the normal course. If, in the future, the accused
person wishes to have a bail hearing, he or she may serve notice on the Crown and the Court,
requesting that the case be brought forward for this purpose, much like when matters are brought
forward for the purposes of a guilty plea. In the meantime, the accused person is entitled to
disclosure and to set a date for trial (or a preliminary inquiry) in the normal course.

21 Inevitably, there will be those who are intent on abusing the system for their own benefit.
Some accused may attempt to remain perpetually in bail court, requesting adjournment after
adjournment under s. 516, never really making a decision on whether to pursue bail or not. Bail
courts in Toronto are already subject to very serious congestion. The system cannot reasonably
accommodate these types of multiple and meaningless appearances. It is not fair to those accused
who are waiting in the queue and who wish to have a bail hearing promptly. In these circumstances,
a justice of the peace or judge may simply insist that the accused person have a bail hearing or
encourage the accused to adjourn it sine die.7 Hopefully, these cases will be few and far between.
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22 There are undoubtedly cases that are presently in the system, where an accused person has
already consented to his or her detention, but wishes to apply for bail. In these circumstances, the
only means of setting aside the detention order is by application to this Court. Similarly, there may
be future cases in which justices of the peace or judges insist that an accused person consent to his
or her detention and make an order under s. 515, requiring the accused to trigger the process under
s. 520. Of course, s. 520 does not permit the reviewing judge to set aside the detention order and
direct a new hearing.8 However, in these circumstances, and in appropriate cases, judges of this
Court may well decide to invoke their inherent habeas corpus powers to set aside a detention order
and remit the case back to the Ontario Court of Justice for a bail hearing in accordance with s. 515.9

CONCLUSION

23 For bail purposes, this Court performs a number of different functions. For some types of
offences, this Court conducts initial bail hearings under s. 522 of the Criminal Code. For others,
those not listed in s. 469 of the Criminal Code, this Court is meant to perform a reviewing function.
The present Toronto practice casts this Court, in its capacity as a reviewing court, in a role that was
never contemplated or intended. It improperly distorts the bail jurisdiction of this Court conferred
under s. 520 of the Criminal Code. It does so for reasons that are artificial and extraneous to the bail
process. In my view, it is a practice that should be discontinued.

G. TROTTER J.

cp/e/qllxr/qlvxw/qlana/qljxh/qlhcs/qlcas/qlhcs

1 On July 22, 2011, I received a letter from Ms. Helen How, Deputy Crown Attorney,
Toronto Crown's Office. This letter, which was provided to defence counsel, shed some light
on the history and reasons for the current practice. And I wish to be clear that the practice has
developed over a long period of time and is not the invention of those currently tasked with
administering the Toronto Crown's office.

2 S. 2 of the Criminal Code defines "justice" as "a justice of the peace or a provincial court
judge."

3 As Doherty J.A. said in R. v. Daniels (1997), 35 O.R. (3d) 737 (C.A.), at p. 745: "Ideally,
all who meet those criteria should be released and all who do not should remain in custody.
The applicable statutory provisions should, so far as the language permits, be read so as to
achieve this ideal." The same principles should also apply when an accused at liberty, through
misconduct or changed circumstances, becomes disentitled to release.
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4 These provisions, ss. 520, 521 and 680, are the principle review provisions. There are other
provisions that permit the issue of bail to be re-visited: for example, see ss. 523, 524 and 525.

5 As noted in the previous footnote, these detention orders may also be dislodged under s.
523, 524 or 525. A justice is authorized to exercise some of the powers in s. 523. A judge
conducting a trial (s. 523(2)(a)) or a justice conducting a preliminary inquiry (s. 523(2)(b))
may set aside detention orders in appropriate circumstances. Under s. 523(2)(c), on the
consent of both parties, a justice, on cause being shown, may set aside an order made under s.
515 and make any other order provided by the section. However, in the case law, there is
some debate as to what the "consent" in this section is meant to apply: consent to have a
contested hearing vs. consent to the ultimate order. It is my view that the section is best
interpreted to address situations in which the Crown and the accused consent to an order that
they are asking a court to make: see R. v. McCreery (1996), 110 C.C.C. (3d) 561 (B.C.S.C.)
and R. v. Pumphrey (2006), 207 C.C.C. (3d) 194 (Y.T.S.C.). Accordingly, unless the Crown
consents to the release of an accused who has previously consented to his or her own
detention, s. 523(2)(c) does not provide a solution to the problem under consideration.

6 It is not clear exactly whether this policy or practice can be traced back to the Crown or the
Ontario Court of Justice itself, or both. In a sense, it does not really matter. It is the impact on
the accused person and the system as a whole that is important.

7 Of course, without the consent of the accused, an adjournment may not be made for more
than three days.

8 S. 520(7) merely provides that the judge shall either dismiss the application or, if the
accused shows cause, allow the application and make any order provided for in s. 515. It
would helpful if s. 520(7) were amended to provide judges with the power to remit a bail case
back to a justice.

9 For examples of courts granting the remedy of a bail hearing in a habeas corpus setting, see
Tyrone-Stewart c. Centre de detention de Montreal, [2007] Q.J. No. 17697 (S.C.) and R. v.
Brown, [2007] O.J. No. 2830 (S.C.), aff'd (2009), 247 C.C.C. (3d) 11 (Ont. C.A.).
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