



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meads, 2018 ONCA 146

DATE: 20180216

DOCKET: C63093

Sharpe, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Justin Meads

Respondent

Michael Perlin and Jennifer Epstein, for the appellant

Erec Rolfe and Ruchira Kulkarni, for the respondent

Heard: December 18, 2017

On appeal from the constitutional ruling made on November
    18, 2016, and the sentence imposed on December 9, 2016 by Justice M. Fuerst of
    the Superior Court of Justice, with reasons reported at 2016 ONSC 7156 and 2016
    ONSC 8186.

Sharpe J.A.:

[1]

Offenders who do not obtain bail pending trial and sentencing ordinarily
    receive credit of 1.5 days for every day spent in pre-sentence custody. This is
    to account for the fact that no credit is given towards parole eligibility,
    earned remission or statutory release for time spent in pre-sentence custody.
    Enhanced credit for pre-sentence custody ensures that those detained pending
    trial or sentence serve custodial sentences comparable to those served by offenders
    who obtained bail.

[2]

The sole issue raised on this Crown appeal is the constitutionality of the
    second prong of s. 719(3.1) of the
Criminal Code
, which restricts pre-sentence
    custody to 1:1 credit in cases where judicial interim release was cancelled
    because of the accuseds alleged misconduct while on bail (the bail misconduct
    exclusion). This appeal was argued together with
R. v. Hussain
, 2018
    ONCA 147 which also involved a
Charter
challenge to the bail
    misconduct exclusion and these reasons take into account the arguments
    presented in
Hussain
. The reasons in
Hussain
are being
    released at the same time as these reasons.

[3]

Although I accept the Crowns position that the legislative purpose of
    the bail misconduct exclusion is to deter misconduct by those on release, for
    the reasons that follow, I find that the provision is overbroad and violates s.
     7.

FACTS

[4]

Following his arrest February 10, 2015 for home invasion offences,
    Justin Meads sought bail and was released on May 4, 2015 on a recognizance in
    the amount of $100,000 with a surety and conditions. The terms of his release
    included house arrest and required him to wear a GPS ankle bracelet. Meads cut
    off the ankle bracelet and absconded on July 28, 2015. He was arrested on
    August 4, 2015 and charged with two counts of breach of recognizance and was
    held in custody. On December 8, 2015, the Crown sought and obtained
    cancellation of Meads bail on the home invasion charges pursuant to s. 524(8).
    The Crown application was not opposed and Meads did not re-apply for release.

[5]

Meads pleaded guilty to breach of recognizance on July 14, 2016 and was
    sentenced to 30 days custody. He entered a guilty plea to the home invasion charges
    on September 29, 2016 and was sentenced on December 9, 2016.

CHARTER
CHALLENGE

[6]

Prior to being sentenced on the home invasion charges, Meads brought a
Charter
challenge to the bail misconduct exclusion in s. 719(3.1), following the
    cancellation of his bail on account of the breach of recognizance charges.

[7]

Section 719(3.1) was part of the
Truth in Sentencing Act
, S.C.
    2009, c. 29 package of amendments to the
Criminal Code
. Section 719(3)
    provides that a court may take into account any time spent in custody by the
    person as a result of the offence but the court shall limit any credit for that
    time to a maximum of one day for each day spent in custody. Section 719(3.1)
    creates an exception to the requirement that credit for pre-sentence custody be
    restricted to 1:1, providing that a maximum of 1.5 days credit may be given if
    the circumstances justify it. As interpreted by this court and by the Supreme
    Court of Canada, the implications of this exception are very significant. In
R.
    v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, affirming 2013 ONCA 147, 114
    O.R. (3d) 641, the Supreme Court observed that as the time spent in
    pre-sentence custody does not count for purposes of parole eligibility, earned
    remission or statutory release, giving only 1:1 credit for pre-sentence custody
    results in persons held in custody pending sentence serving longer custodial sentences
    than those released on bail. Accordingly, the court held that the mathematical
    quantitative effects of the loss of early release taken alone will generally
    be a sufficient basis to award enhanced credit.

[8]

However, s. 719(3.1) also provides that enhanced credit is not available
    in two situations: first, where the reason for detaining the person in custody
    was stated in the record under subsection 515(9.1); or second, where the
    person was detained in custody under subsection 524(4) or (8).

[9]

The first exclusion, labelled by the sentencing judge as the criminal
    record exclusion, applies where the justices written reasons indicate that bail
    was refused, in the words of s. 515(9.1), primarily because of a previous
    conviction.

[10]

In
R. v. Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180, the
    Supreme Court of Canada ruled that the criminal record exclusion infringed s. 7
    of the
Charter
. The court found that the denial of enhanced credit was
    a denial of liberty and that the criminal record exclusion was overbroad and
    therefore not in accordance with the principles of fundamental justice.

[11]

The
    second exclusion, the one that applies in this case, is the bail misconduct
    exclusion. It applies where an accused has been released on bail but the bail
    is then terminated pursuant to s. 524(4) (for s. 469 offences) or s. 524(8),
    for all other offences (applicable to the case at bar). In
Safarzadeh-Markhali
,
    the Supreme Court expressly stated that it was not dealing with the bail
    misconduct exclusion.

[12]

Subsections
    524(1) and (2) provide that a person subject to a bail order may be arrested if
    a justice or peace officer has reasonable grounds to believe that the accused
    has or is about to contravene the terms of his or her release, or has
    committed an indictable offence while on release. The person arrested is then
    taken before a justice pursuant to s. 524(8). If the justice finds:

(a) that the accused has contravened or had been about to
    contravene his summons, appearance notice, promise to appear, undertaking or
    recognizance, or

(b) that there are reasonable grounds to believe that the
    accused has committed an indictable offence after any summons, appearance
    notice, promise to appear, undertaking or recognizance was issued or given to
    him or entered into by him,

he shall cancel the summons, appearance notice,
    promise to appear, undertaking or recognizance and order that the accused be
    detained in custody unless the accused, having been given a reasonable
    opportunity to do so, shows cause why his detention in custody is not justified
    within the meaning of subsection 515(10).

[13]

The
    sentencing judge concluded that the bail misconduct exclusion was overbroad and
    violated s. 7. She held that the bail misconduct exclusion has the same
    legislative purpose as the criminal record exclusion, as articulated by the
    Supreme Court in
Safarzadeh-Markhali
:  to enhance public safety and
    security by increasing violent and chronic offenders access to rehabilitation
    programs.

[14]

The
    sentencing judge then listed the ways in which the bail misconduct exclusion overreached
    and caught behaviour outside of this legislative purpose. She noted that it
    catches all individuals who breach or allegedly breach their terms of release
    and are unable to obtain further release  even accused persons who commit minor
    breaches and pose no threat to public safety. The reverse onus provision applicable
    at s. 524 hearings also means that many economically and socially disadvantaged
    persons will fail to gain release and thereby suffer denial of enhanced credit
    for pre-sentence custody even though they are not chronic or violent offenders.
    Similarly, an individual may be acquitted of the alleged breach of conditions
    or offence yet the individual would still be denied enhanced credit for
    pre-sentence custody.

[15]

The
    sentencing judge held that because the bail misconduct exclusion denies 1.5:1
    credit to these classes of individuals, who are not chronic or violent
    offenders and who pose no threat to public safety or security, it is overbroad and
    violates the s. 7 right not to be deprived of liberty except in accordance with
    the principles of fundamental justice. The Crown did not seek to justify s.
    719(3.1) under s. 1 of the
Charter
and the sentencing judge granted a
    declaration of invalidity pursuant to s. 52 of the
Constitution Act
,
1982
.

SENTENCE IMPOSED

[16]

The
    sentencing judge imposed a sentence of five years imprisonment less credit for
    time served in pre-sentence custody fixed at 23 months and 10 days. Although
    she declared the relevant portion of s. 719(3.1) to be unconstitutional, the
    sentencing judge resorted to the common law discretion to deny
enhanced credit for pre-sentence custody where the
    offender was re-arrested and detained because of a breach of bail conditions:
R.
    v. Warren
(1999), 127 O.A.C. 193,

[1999]
    O.J. No. 4591 (C.A.);
Summers
,
    at para. 71.
She recognized that Meads had been sentenced for the breach
    but described the appellants conduct in cutting off the electronic monitoring
    bracelet as a deliberate and flagrant breach of his recognizance for which he
    had offered no explanation. Accordingly, she gave only 1:1 credit for the
    period from the date of the s. 524(8) revocation order to the appellants
    guilty plea on the home invasion charges. However, due to delays in the
    sentencing proceedings, the sentencing judge gave 1.5:1 credit for the period
    from the appellants guilty plea to the date of sentencing, a period of 71 days
    for which Meads received credit of 107 days. Meads does not appeal the denial
    of 1:5:1 credit from the date of the s. 524(8) order revoking his bail until
    the date of his guilty plea.

THE CROWNS APPEAL

[17]

The
    Crown appeals the declaration of invalidity and argues that if it is set aside,
    the sentence should be increased by 36 days as Meads would be statutorily
    barred from receiving enhanced credit of 107 days for the 71 day period
    following the guilty plea.

ANALYSIS

[18]

The
    Crown does not dispute that Meads right to liberty is engaged by the bail
    misconduct exclusion. The issue is whether Meads liberty has been denied in
    accordance with the principles of fundamental justice.

[19]

Before
    the sentencing judge and before this court, Meads argues that the bail
    misconduct exclusion violates the principles of fundamental justice on the
    grounds that: (i) it is overbroad because it targets conduct and individuals
    that bear no relation to its purpose; and (ii) it results in sentences that are
    grossly disproportionate between equally culpable offenders, and to the offence
    and circumstances of the offender. He also argues that as the punishment
    resulting from s. 719(3.1) is grossly disproportionate to what is appropriate
    having regard to the offence and the circumstances of the offender, the bail
    misconduct exclusion also violates s. 12 of the
Charter
.

[20]

The
    focus of Meads submissions, those of Hussain in the related appeal and those
    of the Crown in both appeals was on overbreadth, the ground which the Supreme
    Court in
Safarzadeh-Markhali
found was fatal to the criminal record exclusion.

(i)

Overbreadth and the Legislative Purpose of the Criminal Record
    Exclusion:
Safarzadeh-Markhali

[21]

In
Safarzadeh-Markhali
,
at para. 51, McLachlin C.J. adopted and applied the definition of overbreadth
    stated in
Canada (Attorney General) v. Bedford
, 2013 SCC 72, [2013] 3
    S.C.R. 1101, at para. 112:

Overbreadth deals with a law that is so broad in scope that it
    includes
some
conduct that bears no relation to its purpose. In this
    sense, the law is arbitrary
in part
. At its core, overbreadth
    addresses the situation where there is no rational connection between the
    purposes of the law and
some
, but not all, of its impacts. [Emphasis
    in original.]

[22]

The
    first step in the overbreadth analysis is to determine the purpose of the
    impugned law using the method described in
R. v. Moriarity
, 2015 SCC
    55, [2015] 3 S.C.R. 485.
Safarzadeh-Markhali
summarized the
Moriarity
method as follows, at paras. 26-29:

First, the laws purpose is distinct from the means used to
    achieve that purpose:
Moriarity
, at para. 27. A laws means may be
    helpful in determining its objective, but the two must be treated separately.

Second, the laws purpose should be characterized at the
    appropriate level of generality, which resides between the statement of an
    animating social value  which is too general  and a narrow articulation
    that amounts to a virtual repetition of the challenged provision, divorced from
    its context:
Moriarity
, at para. 28.

Third, the statement of purpose should be both precise and
    succinct:
Moriarity
, at para. 29. Precision requires that courts focus
    on the purpose of the particular statutory provision subject to constitutional
    challenge:
ibid
.; see also
RJR-MacDonald Inc. v. Canada (Attorney
    General)
, [1995] 3 S.C.R. 199, at para. 144.

Fourth, the analysis is not concerned with the appropriateness
    of the legislative purpose. The court must take the legislative objective at
    face value and assume that it is appropriate and lawful:
Moriarity
,
    at para. 30. The appropriateness of a legislative objective may be relevant to
    its constitutionality under other
Charter
provisions. But it has no
    place in the s. 7 analysis of overbreadth.

[23]

The
    sources to be considered to determine the legislative purpose are (1)
    statements of purpose in the legislation, if any; (2) the text, context, and
    scheme of the legislation; and (3) extrinsic evidence such as legislative
    history and evolution:
Safarzadeh-Markhali
,

at para. 31;
Moriarity
, at para. 31.

[24]

The
Truth in Sentencing Act
contains no statement of legislative purpose
    so the purpose of the bail misconduct exclusion falls to be determined by the
    second and third categories of sources. In
Safarzadeh-Markhali
, at
    para. 34, the court derived from the text, context and scheme of the
    legislation the purpose of enhancing confidence in the justice system and
    making the process of giving enhanced credit more transparent. However, that
    purpose is pitched at a high level of generality and, under the
Moriarity
framework, is more of an animating social value than a statement of purpose.
    Turning to the legislative history and ministerial statements made when the
    legislation was introduced, the court found, at para. 47, that the legislative
    purpose of the criminal record exclusion was to enhance public safety and
    security by increasing violent and chronic offenders access to rehabilitation
    programs.

[25]

The
    court found that when the criminal record exclusion was measured against that
    legislative purpose it was overbroad. First, it applied to all persons denied
    bail primarily because of past offences without regard to the seriousness of
    those offences. In other words, it would catch many individuals who are neither
    chronic nor violent offenders and do not pose a threat to public safety. Second,
    at least in some circumstances, the decision to tag a bail decision with an
    endorsement under s. 515(9.1) was unreviewable. This meant that erroneous
    endorsements, or successful appeals from the conviction underlying the
    endorsement, would not be accounted for on sentencing, and that some individuals
    would be denied enhanced credit even though they were not chronic or violent offenders.

(ii)

Significance of
Safarzadeh-Markhali
to this Appeal

[26]

To
    what extent does
Safarzadeh-Markhali
determine the result in this
    appeal? At para. 10, the Supreme Court explicitly declined to rule on the
    constitutionality of the bail misconduct exclusion, so the question is an open
    one.

[27]

The
    issue was considered most directly by two appellate courts before the Supreme
    Courts decision in
Safarzadeh-Markhali
with mixed results. In
R.
    v. Kovich
;
R. v. Bittern
, 2016 MBCA 19, 333 C.C.C. (3d) 1, the
    Manitoba Court of Appeal struck down both the criminal record and the bail
    misconduct exclusion. In
R. v. Chambers
, 2014 YKCA 13, 316 C.C.C. (3d)
    44, leave to appeal refused, [2014] S.C.C.A. No. 534, the Yukon Court of Appeal
    rejected a
Charter
challenge to the bail misconduct exclusion.
    However, in a decision released after these reasons were drafted, the British
    Columbia Court of Appeal departed from
Chambers
, followed
Safarzadeh-Markhali
and struck down the bail misconduct
    exclusion:
R. v. Romanchych
, [2018] BCCA 26.

[28]

Trial
    judges have also reached different conclusions. Both
R. v. Dinardo
,
2015 ONSC 1804, 321 C.C.C. (3d) 525 and
R. v. Norman
, 2015 ONSC 6849, 331 C.C.C. (3d) 550 followed the
    decision of this court in
R. v.

Safarzadeh-Markhali
, 2014
    ONCA 627, 122 O.R. (3d) 97 that the criminal record exclusion violated a
    principle of fundamental justice, namely proportionality in sentencing, and
    applied that reasoning to the bail misconduct exclusion. In
R. v. Hussain
,
    2015 ONSC 7115, [2015] O.J. No. 6159, the trial decision at issue in the
    related appeal, Edwards J. followed
Chambers
(without the benefit of
    the Supreme Courts analysis in
Safarzadeh-Markhali
) and upheld the
    bail misconduct exclusion. However, in
R. v. Campbell
, 2017 ONSC 26, [2017]
    O.J. No. 633, as in the case at bar, McWatt J. applied the Supreme Courts
    analysis in
Safarzadeh-Markhali
and ruled that the bail misconduct
    exclusion was overbroad.

[29]

I
    do not propose to conduct a detailed review of each of these decisions for two
    reasons. First, while the Supreme Courts decision in
Safarzadeh-Markhali
does not determine the result in this appeal, it does lay out a framework for
    analysis that was not available to the courts who decided earlier cases. In particular,
Safarzadeh-Markhali
rejects the proposition that proportionality in
    sentencing is a principle of fundamental justice and holds that the proper way
    to assess the validity of s. 719(3.1) is by way of an overbreadth analysis.
    Second, in the post-
Safarzadeh-Markhali
decisions, including the case
    at bar, and that of the British Columbia Court of Appeal in
Romanchych
,
    it was determined that the legislative purpose behind the bail misconduct
    exclusion is the same as the purpose of the criminal record exclusion. As I
    will explain, I disagree with that reasoning.

(iii)

Legislative Purpose of the Bail Misconduct Exclusion

[30]

Meads
and
Hussain
urge us to accept and apply the Supreme Courts
    finding of legislative purpose in
Safarzadeh-Markhali
to the bail
    misconduct exclusion. If we do so, as the Crown fairly conceded in oral
    argument, there can be no doubt about the result. The bail misconduct exclusion
    catches a significantly greater number of individuals than the criminal record exclusion
    who are neither chronic nor violent offenders in need of rehabilitative
    programming. Bail violations include conduct such as failing to report in a
    timely fashion or failing to observe curfews or other like restrictions.
    Conduct of that nature bears no relation to violence and little meaningful
    relation to the kind of recidivism from which the public requires protection or
    for which offenders require rehabilitation.

[31]

A
    central feature of the Crowns argument on this appeal is that there is a
    different legislative purpose motivating the bail misconduct exclusion and that
    if that purpose is accepted, a different result follows. The Crown argues that
    the legislative purpose of the bail misconduct exclusion is to deter all forms
    of misconduct on release, regardless of the severity of the breach, and thereby
    reduce the number of accused persons in remand pending trial or sentencing and
    enhance public safety and security. The Crown submits that measured against
    that legislative purpose, the bail misconduct exclusion is not overbroad.

[32]

Although
    we are dealing with two exclusions found in the same subsection of the
Criminal
    Code
, I agree with the Crown that there is no reason why the two
    exclusions cannot be motivated by different legislative purposes. The two
    groups identified by the exclusions may be quite different and, in the words of
R. v. Akintunde
, 2015 ONCA 597, 337 O.A.C. 341, at para. 43: It is
    open to Parliament to treat these two groups differently. Misconduct on bail does
    not necessarily give rise to the same concerns as having a prior criminal
    record. It seems to me entirely possible that Parliament could have one purpose
    for limiting credit for pre-sentence custody for those denied bail because of a
    criminal record and a different purpose for according the same treatment to those
    who breach their bail. Identical treatment  namely, the denial of enhanced
    credit for pre-sentence custody  does not require an identical purpose.

[33]

I
    accept that the bail misconduct exclusion is animated by the same social value
    as the criminal record exclusion, namely enhancing public confidence in the
    justice system. However, when one turns to the text, context, and scheme of the
    legislation and the extrinsic evidence relating to legislative history, it is
    my view that a different legislative purpose can be identified.

[34]

I
    agree with the Crowns submission that the manner in which the bail misconduct
    exclusion operates offers some guidance as to its purpose. The exclusion
    attaches consequences to misconduct while subject to a release order. It
    focusses on a specific group of offenders who are granted release but then lose
    it because of their alleged misconduct and cannot thereafter establish that
    they are suitable candidates for release. That group is treated differently
    from those offenders who are denied bail at first instance.

[35]

While
    far from compelling, the legislative history supports the Crowns position on
    the legislative purpose of the bail misconduct exclusion. The legislative
    record suggests that Parliament was concerned about the rising number of
    persons in custody awaiting trial and perceived enhanced credit for
    pre-sentence custody to be a contributor to that problem. The Ministers
    reasoning appears to have been that reducing credit would deter bail violations
    and thereby contribute to a reduction in the remand population.

[36]

The
    Minister of Justice, the Honourable Rob Nicholson, also stated that one
    objective of the
Truth in Sentencing Act
was to encourage good
    conduct by accused persons while on bail:
House of Commons Debates
, 40th
    Parl., 2nd Sess., No. 041 (20 April 2009) at 2419.

[37]

Accordingly,
    I accept the Crowns submission that the legislative purpose of the bail
    misconduct exclusion is to deter misconduct while on release, thereby reducing
    the number of accused persons in remand pending trial or sentencing and enhancing
    public safety and security.

(iv)

Overbreadth Analysis

[38]

Is
    the bail misconduct exclusion overbroad when measured against this legislative
    purpose? In my view, the answer is yes. To paraphrase the
Bedford
test, adopted in
Safarzadeh-Markhali
, there is no rational connection
    between the purpose of the law and some of its impacts.

[39]

The
    bail misconduct exclusion denies enhanced credit where:

(i)

the
    judge or justice finds

·

that the accused has contravened the terms of release; or

·

the accused was about to contravene the terms of release; or

·

there are reasonable grounds to believe that the accused has
    committed an indictable offence while on release (s. 524(4) and (8)); and

(ii)

the
    accused is unable to satisfy the reverse onus of showing cause why his or her
    detention in custody is not justified (ss. 524(9) and 515(10)).

[40]

The
    wording of these provisions leaves open the possibility that the bail
    misconduct exclusion will operate to deny enhanced credit for pre-sentence
    custody to individuals who did not, in fact, violate their bail or engage in
    the misconduct identified by s. 719(3.1).

[41]

A
    hearing before a justice to revoke release pursuant to s. 524(8) is a judicial
    hearing but it is summary in nature. The rules of evidence on bail hearings are
    relaxed (s. 518(1)(d) and (e)), and hearsay and other forms of evidence not
    admissible at trial may be considered: see Gary Trotter,
The Law of Bail in
    Canada
, loose-leaf, 3rd ed.
(Toronto: Thomson Reuters Canada, 2010), at 5-51 to 5-57. Those rules apply to
    revocation hearings: s. 524(12).

[42]

Most
    importantly, the justice does not make a conclusive finding that the accused in
    fact breached the terms of his or her release, was about to breach those terms
    or that the accused committed an indictable offence while on release. That can
    only happen after a trial of the alleged offences where the Crown bears the
    burden of proving on admissible evidence the guilt of the accused beyond a
    reasonable doubt.

[43]

There
    will be many cases where the accused will eventually be acquitted of the
    alleged breach or where the charges leading to revocation of bail are withdrawn
    or stayed. Section 719(3.1) fails to contemplate that possibility. Yet once the
    justice makes an order revoking release, unless the accused can show cause for
    release, the bail misconduct exclusion is triggered and the accused will be
    denied enhanced credit for the resulting pre-sentence custody. As the Manitoba
    Court of Appeal put it in
Kovich
,

at para. 74, [t]he offender is being punished for charges, not
    necessarily for convictions. The result is that through the operation of s.
    719(3.1), some accused will be deprived of liberty on account of conduct that
    he or she did not in fact commit.

[44]

In
    my view, this means that s. 719(3.1) is overbroad. Punishing those innocent of
    misconduct on release bears no rational relation to the legislative purpose of
    deterring misconduct on release.

[45]

Another
    feature of s. 719(3.1) pointing to overbreadth is that s. 524(4) and (8) orders
    are made on the basis of the accuseds failure to show cause that his or her
    detention is not required. The denial of enhanced credit is triggered not by
    the alleged misconduct, but by the fact that the accused subsequently fails to
    show cause. Well-heeled members of society with resources and ties to the
    community will be able to show cause why their detention is not required and preserve
    the availability of enhanced credit.

[46]

I
    agree with Meads submission that poor and socially isolated individuals who are
    alleged to have committed minor breaches of the terms of release will often
    have difficulty satisfying the reverse onus of proving that they are suitable
    for subsequent release because of poverty, mental health and addiction
    problems. Those individuals will be detained not primarily because of actual misconduct
    while on release but because of social and economic disadvantage that makes it
    difficult for them to show cause. As the court in
Kovich
stated, at
    para. 73, [i]n such cases, it is clear the impugned exemption does not deny
    enhanced credit because of bad conduct, but rather because of the inability to
    obtain bail. See also
Dinardo
,
at
    para. 86. Increasing punishment for those who lack the resources to secure
    release bears no rational connection to the objective of deterring misconduct
    on release.

[47]

In
    his very able argument on behalf of the Crown, Mr. Perlin submits that the s.
    524(4) or (8) order revoking release is reviewable and that the mischief of
    attaching punishment for mere allegations of misconduct can thereby be avoided.
    An appeal to this court lies from a s. 524(4) order pursuant to s. 524(6) and
    s. 680. A s. 524(8) order may be reviewed by a judge at any time prior to trial
    (ss. 524(13) and 520). The trial judge can vacate the order at any time (s.
    523(2)(a)) and a justice may vacate the order at the conclusion of the
    preliminary inquiry, unless the index offence is a s. 469 offence (s.
    523(2)(b)).

[48]

In
    my view, the design and wording of s. 719(3.1) and the review provisions make these
    possibilities for post-revocation review an ineffective remedy to redress the
    problems of overbreadth that I have identified.

[49]

The
    provisions providing for review of s. 524(4) and (8) orders provide an avenue
    of redress for an accused who seeks release from custody following the
    revocation of the earlier terms of release. They are not designed or worded in
    a way that is capable of dealing with the issue of credit for pre-sentence
    custody. Even if the s. 524(4) or (8) order were successfully reviewed and
    vacated, the offender will still have been detained in custody under subsection
    524(4) or (8) within the meaning of s. 719(3.1). That period of detention remains
    a fact and cannot be erased or vacated. By its terms, s. 719(3.1) limits the
    pre-sentence credit to be given for that period of custody. To restore enhanced
    credit where the s. 524(4) or (8) order has been successfully reviewed and
    vacated would require an unusually inventive interpretation of s. 719(3.1).

[50]

Another
    problem is that the charges leading to the s. 524(4) or (8) order will often be
    dealt with after the offender is sentenced and denied enhanced credit for
    pre-sentence custody pursuant to s. 719(3.1). Those charges may be withdrawn,
    stayed or the accused may be acquitted, after the accused is sentenced and
    denied enhanced credit for the pre-sentence custody that flowed from those
    charges. Mr. Perlin submits that s. 523(2)(c) provides an answer to this
    problem. That section provides that with the consent of the accused and the
    prosecutor, a s. 524 order may, on cause being shown, be vacated by a judge
    or justice up until the accuseds trial is completed. Mr. Perlin argues that
    this would allow the offender to have the s. 524 order vacated after sentence
    and use the order vacating the s. 524 order as fresh evidence on a sentence
    appeal to the Court of Appeal.

[51]

I
    am unable to accept the contention that s. 523(2)(c) provides an effective
    remedy. First, review would depend in almost all cases upon the offender
    obtaining the consent of the prosecutor. It would, of course, be in the best
    tradition of the role of the prosecutor to give consent but I do not think that
    an offenders constitutional rights should be contingent upon prosecutorial
    consent. Furthermore, there is no consensus as to the meaning of consent in
    this provision: Trotter, at 8-78 to 8-80. Second, by its terms, s. 523(2) is
    intended to deal with orders that are operational at the time of the review. The
    possibility of an order being vacated under s. 523(2)(c) is available only
    until [the accuseds] trial is completed. It would be arguable that once the
    s. 524(4) or (8) order is spent upon the conviction of the accused, an attempt
    to review it would be moot. Third, there remains the problem I have already
    identified, namely, that vacating a s. 524(4) or (8) order cannot erase the
    fact that the offender was detained in custody under s. 524(4) or (8) within
    the meaning of s. 719(3.1).

[52]

Finally,
    the possibility of review cannot cure the overbreadth that flows from the fact
    that s. 524(4) and (8) orders are made on the basis of the accuseds failure to
    show cause why he or she should not be detained pending trial, and not on the
    basis of the alleged breach of release or alleged commission of an indictable
    offence.

[53]

I
    conclude that the avenues of review for s. 524(4) and (8) orders identified by
    the Crown do not provide a persuasive answer to the problem of overbreadth
    created by s. 719(3.1).

SECTION 1

[54]

The
    Crown concedes that if s. 719(3.1) infringes s. 7 of the
Charter
, it
    cannot be saved by s. 1.

OTHER GROUNDS

[55]

Given
    my conclusion with respect to s. 7 and overbreadth, it is unnecessary for me to
    consider the arguments relating to gross disproportionality or cruel and
    unusual punishment under s. 12.

DISPOSITION

[56]

For
    these reasons, I would dismiss the appeal.

Robert J. Sharpe J.A.

I agree L.B. Roberts
    J.A.

I agree Fairburn J.A.

Released: February 16, 2018


