The argument in Myers was whether s. 525 was a “two-step” or “one-step” process. The
two-step approach advocated by the Crown sets a threshold that it be shown
there has been unreasonable delay in bringing the case to trial before the
court looks at the statutory criteria applying to judicial interim release. The
one-step approach backed by Myers’ side calls for the court to move directly to
weighing the merits of the detention, according to the statutory criteria under
s. 515(10) of the Criminal Code — whether the detention is necessary to ensure
the accused attends court, necessary to protect public safety or necessary to
maintain the public’s confidence in the justice system.
“I am super happy they did the right thing, of course. I couldn’t have asked for a better result. And I think that the
means of justice will best be achieved by the result that has occurred.
Secondly, I think it’s most important to recognize this issue really came about
because of mine and Mr. [Nicholas] Reithmeier’s persistence,” says Justin Myers
of Myers and Co., who acted for the appellant, Corey Lee James Myers.
Reithmeier and John Caldwell were Crown counsel acting for the attorney general of British Columbia. All nine justices were present and Chief Justice Richard Wagner wrote
the decision, which was unanimous. The attorney general for Ontario and the
Canadian Civil Liberties Association were intervenors in the case.
“Our bail system is
broken and there are more people awaiting trial in our jails than serving a
sentence,” says Christine Mainville, a partner at Henein Hutchison LLP, who acted
for the CCLA.
“It was important to intervene because the
provision, first of all, was applied very differently across the country. And
in most cases, it was either interpreted as a perfunctory check-in with the
court or the accused had to first meet an onus before the detention would be
reviewed on its merits. And that gutted the provision of any purpose,” she
The court cited figures from Statistics
Canada to demonstrate the problem of trial delay in Canada, stating that in
2016 and 2017, around seven per cent of those in remand spent more than three
months there, with some detained between 12 and 24 months.
The Crown had argued that, in 1972, when s.
525 was added to the Criminal Code, 90 days in pretrial detention was an
unreasonable delay, but the standard is outdated because, 47 years later, trials
now typically take longer. They also argued that s. 525 hearings were only
intended to be held in exceptional circumstances where there was unreasonable
delay and noted that the section is titled “Review of detention where trial
The attorney general for Ontario argued
that the two-step approach was consistent with the wording of the provision, harmonious
with the other pretrial bail review provisions and aligned with Parliament’s
intent when it instituted the Bail Reform Act, giving birth to s. 525.
“The Crown’s position in this appeal was
that the two-step approach accorded with several well-established principles of
statutory interpretation. . . . It was also supported by several authoritative
decisions of the B.C. Supreme Court, including the judgment on appeal,” says Dan
McLaughlin, communications counsel for the B.C. Prosecution Service.
“The decision by the SCC in this case will
significantly impact bail review practices in B.C.,” he says.
After a high-speed car chase, Cory Lee
James Myers, who was on probation at the time, was arrested and charged with
firearms offences in January 2016. He served the remainder of his previous
sentence and unsuccessfully sought bail in November. In March 2017, the
Crown asked him if he wanted to pursue a 90-day bail review under s. 525 and
Myers affirmed but lost because the judge said he could only release Myers if
there was an unreasonable delay and Myers made no arguments in response. He
nevertheless appealed, and his lawyer and the Crown made submissions to the
court on the conflicting perspectives on s. 525. Justice Paul Riley of the
British Columbia Supreme Court ruled in favour of the two-step approach. Myers then
appealed to the Supreme Court of Canada.
Myers has since pleaded guilty and was
sentenced to 30 months and so his appeal to the court is moot as he is no longer
in pretrial custody. But the Supreme Court of Canada took up the case on its
discretion because they said guidance was needed to establish the correct
approach to s. 525.
The court allowed the appeal, finding the
correct approach to be that the prosecutor or jailor must apply for a s. 525
hearing after the 30 or 90 days after the accused’s last detention order. An
unreasonable delay is not a threshold that the accused must meet to get a
hearing and the judge must schedule the hearing as soon as possible.