COURT FILE NO.: CR/23-839- BR DATE: 2024-01- 16

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING A. Webb, for the Public Prosecution Service of Canada Respondent

- and -

J.G R. Handlarski, for the Applicant Applicant

Heard: December 18, 2023

AMENDED RULING ON DETENTION REVIEW- Section 525 of the Criminal Code

A.J. GOODMAN J.

[1] This is a mandatory review of the applicant’s detention order pursuant to s. 525 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The applicant, J.G., was detained following a bail hearing on September 13, 2023 before Justice of the Peace Walker of the Ontario Court of Justice in Hamilton.

[3] Pursuant to s. 515(10) of the Criminal Code, the justice of the peace ordered the applicant’s detention on the tertiary ground. He has remained in custody since his arrest on July 28, 2023.

[4] The former, principally administrative approach to a 90-day detention review under s. 525 of the Criminal Code, has been substantially altered since the release of the Supreme Court of Canada’s decision in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105.

[5] Clearly, there are differences between the conduct of a bail hearing, bail review and detention review. We know from Myers that a 90-day detention review is a review of the justification for detention and not the detention order. But what are the other procedural differences between them?

[6] Upon reflection, cases since Myers have been inconsistent in their approach to s. 525 reviews, blurring the lines between ss. 520 and 525 reviews. Some cases have gone as far as permitting quasi-bail reviews or bail de novo hearings under the guise of s. 525, when the circumstances do not call for it.

[7] Given how this particular detention review hearing unfolded and the evolution of such hearings post- Myers, it is time to address what I view ought to be the appropriate procedures and methodology regarding a 90-day detention review.

Issue 1: The Onus at a Detention Review (Where Prior Bail Hearing Held)

[8] For this detention review, both the Crown and the defence’s legal discussion focused primarily on which party had the onus. This issue appears to be on the track to being settled for cases such as this. Unlike ss. 520 or 521, as the case may be, the preponderance of jurisprudence from various jurists at this level of court establishes that neither the Crown nor the defence has the onus with respect to a s. 525 detention review where a bail hearing was held at first instance.

[9] For instance, as Coroza J. (as he then was) stated in R. v. Pescon (unreported, March 16, 2020), at para. 16:

Turning to the question of onus, in my view, it is clear that on a s. 525 review there is no onus on either party during this hearing. There is nothing in the language of Myers or in the wording of s. 525 that would suggest that a party appearing at the hearing carries an onus. Indeed, Chief Justice Wagner in Myers stressed that the section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals in remand.

[10] Subsequently, in R. v. Moreira, 2021 ONSC 916, the court stated at para. 38:

Although Mr. Moreira bore the onus before Justice of the Peace Shoniker, I agree with the views of Schreck J. in R. v. G.F., 2020 ONSC 3389, at para. 18, that my independent responsibility to determine whether Mr. Moreira's continued detention is justified does not depend on whether one or the other party discharged any onus. This is consistent with the language of s. 525 and the statement of Wagner C.J., writing for a unanimous court in Myers, at para. 4, that "Parliament intended s. 525 to operate as a safeguard." This, in turn, is consistent with Parliament's "overarching vision" of the Bail Reform Act, S.C. 1970-71-72, c. 37, which was the creation of "'a liberal and enlightened system of pre-trial release' in which accused individuals would normally be granted bail": Myers, at para. 22.

[11] I accept these propositions of law. Thus, I agree with the applicant that neither party has the onus to demonstrate the justification, or not, for detention where an accused appears for a s. 525 detention review and has already undergone a bail hearing, pursuant to s. 515(1) of the Criminal Code.

The Onus at a Detention Review (Where No Prior Bail Hearing Held)

[12] Given the submissions of the parties, it is also incumbent on me to address the question of who bears the onus where an accused appears for a s. 525 detention review, albeit has not yet had a bail hearing, pursuant to ss. 520 or 521 of the Criminal Code.

[13] The Supreme Court in Myers discusses the applicability of s. 525 where there has been no initial bail hearing. Specifically, at paras. 42-43, Wagner C.J. instructs that persons who have remained in custody for 90 days and have not had a full bail hearing are still entitled to a detention review pursuant to s. 525 of the Criminal Code. Implicit to this instruction is the Supreme Court of Canada recognizing an accused person may be detained in custody for 90 days without a bail hearing.

[14] The Chief Justice goes on to explain, at para. 56, that where an accused person appears before a judge at a s. 525 detention review and did not undergo an initial bail hearing, the judge hearing the s. 525 review must conduct a bail hearing “from the ground up” to “give proper effect to s. 525 in such circumstances.” [^1] As will be discussed, in my opinion, conducting a full bail hearing “from the ground up” includes applying the onus traditionally applied on the parties at a first instance bail review.

[15] Chief Justice Wagner goes on to summarize the correct approach to s. 525 reviews, writing at para. 62:

I would summarize the correct approach to a detention review under s. 525 as follows. First, the jailer has an obligation to apply for the hearing immediately upon the expiration of 90 days following the day on which the accused was initially taken before a justice under s. 503. Where there is an intervening detention order under s. 520, 521 or 524 following the initial appearance of the accused and before the end of the 90-day period, the 90-day period begins again. Accused persons who have not had a full bail hearing are nonetheless entitled to one under s. 525. Upon receiving the application from the jailer, the judge must fix a date and give notice for the hearing. The hearing must be held at the earliest opportunity. In his or her analysis, the judge may refer to the transcript, exhibits and reasons from any initial judicial interim release hearing and from any subsequent review hearings. Both parties are also entitled to make submissions on the basis of any additional "credible or trustworthy" information which is relevant or material to the judge's analysis, and pre-existing material is subject to the criteria of due diligence and relevance discussed in St-Cloud, at paras. 130-35. [Emphasis added.]

[16] At para. 63, Wagner C.J. reiterates:

If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre-trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is – or is not – justified.

[17] Myers does not give clear instructions on the onus applied to parties where there was no initial bail hearing and the 90-day period has elapsed. The authorities since Myers have been divided on this issue. Some cases have agreed with my interpretation, holding that where the accused has not had a bail review by the time they come before the court for a s. 525 detention review, the onus at the s. 525 detention review would be on the Crown or the accused, as the case may be.

[18] One example is R. v. Denesevich, 2019 ONSC 3823. The accused in Denesevich was charged with several offences related to importation of firearm components to Canada and was detained following a show-cause hearing. After 90-days in custody elapsed, the accused was brought before Grace J. for a detention review pursuant to s. 525 of the Criminal Code. A peripheral issue Grace J. addressed in Denesevich was the burden of proof. At para. 50, Grace J. wrote:

Again, the fundamental question is whether the continued detention of the accused in custody is justified within the meaning of s. 515(10) of the Criminal Code. In light of the foregoing I suggest that the onus depends on what, if anything, has happened before. If, for example, a bail hearing was not conducted, the Crown should bear the onus as s. 515(5) mandates, unless shifted to the defendant by virtue of s. 515(6). [Emphasis added.]

[19] Denesevich was followed by this court in a number of cases. See, for example, R. v. Geddes, 2022 ONSC 4226, at paras. 7-8; R. v. Leon, 2022 ONSC 5694, at para. 38; and R. v. Ricourt-Casseus, 2019 ONSC 7471, at para. 15.

[20] In Geddes, the accused was detained on several charges, including human trafficking, armed robbery, possession of a stolen vehicle, and breaching a court order. The accused did not request a bail review and was eventually brought before a judge for a detention review pursuant to s. 525 of the Criminal Code. Justice Roger acknowledged the diverging lines of cases but favoured the approach from Denesevich. He reasoned that Denesevich better reflected the principles of statutory interpretation. However, despite adopting Denesevich, the judge held that because the law was unsettled on this issue the approach which best benefits the accused was to apply no onus.

[21] In Ricourt-Casseus, the accused was arrested for a series of charges including assault, sexual assault, forcible confinement, and human trafficking. There was no initial bail hearing at the time of the accused’s arrest. Justice O’Bonsawin (as she then was) heard the s. 525 detention review. First, she recognized the instruction from the Supreme Court of Canada that a judge hearing a s. 525 detention review must conduct a full bail hearing where the accused had not had one: Ricourt-Casseus, at para. 12. Then, O’Bonsawin J. adopted the onus as set out in Denesevich; namely, that in situations like this, the Crown bears the onus per s. 515(5) unless it is shifted to the accused pursuant to s. 515(6) at the s. 525 detention review: Ricourt-Casseus, at para. 15.

[22] Suffice it to state that I agree entirely with Grace J.’s holding.

[23] In contrast, there are a number of cases, also from this court, which reject the approach taken in Denesevich, such as R. v. G.F., 2020 ONSC 3389, Pescon, and R. v. Kongolo, 2021 ONSC 6619, (the latter two cases had initial bail hearings). Those cases have generally held that s. 525 of the Criminal Code and Myers assert there is no onus on either party at the s. 525 detention review; rather the reviewing judge must conduct an independent review of the accused’s detention and this should be done automatically.

[24] In Pescon, the accused was detained on the secondary grounds by the justice of the peace after being charged with several drug offences. Initially, the accused brought a s. 520 application in addition to the s. 525 review, however, the s. 520 application was abandoned in favour of conducting an independent s. 525 review. The jurist opined, at para. 15, that this decision was in the best interests of the accused because the accused could advance arguments about any material change in circumstances or legal errors made by the justice of the peace at the s. 525 detention review. With respect to onus, Coroza J. disagreed with the approach of Grace J. in Denesevich, stating it was inconsistent with the language of Myers: Pescon, at para. 17. Justice Coroza concluded the reviewing judge has an independent responsibility to consider whether the continued detention of the accused is justified without any onus on the Crown or defence: Geddes, at paras. 16.

[25] In G.F., the accused was charged with kidnapping, possession of a firearm and robbery. At the expiry of 90-days, the accused was brought before Schreck J. for a s. 525 detention review. There had been no prior bail hearing, so Schreck J. conducted bail hearing from the ground up for the purposes of the s. 525 detention review.

[26] Justice Schreck disagreed with the principle from Denesevich that the onus should be on the accused or the Crown in those circumstances. He reasoned that taking the approach set out in Denesevish eliminates any meaningful difference between ss. 520 and 525 of the Criminal Code and it would prevent s. 525 from acting as a safeguard, as intended by Myers: G.F., at paras. 20-21. Instead, he agreed with Pescon, namely that the review of the accused’s detention is an automatic independent responsibility on the reviewing judge and should occur without any onus on the parties: G.F., at paras. 18-19.

[27] In Kongolo, the accused was arrested on various charges, including uttering threats, criminal harassment, possession of a loaded prohibited weapon, and failing to comply with recognizance. A detention order was entered by the justice of the peace at a bail hearing. After 90-days elapsed, the accused appeared before Goldstein J. on a blended ss. 520 and 525 review. In analyzing the applicable legal principles, Goldstein J. wrote, at para. 17:

I agree with those judges who have taken the view that there is no onus on the accused or the Crown: R. v. Pescon, an unreported decision of Coroza J. of the Superior Court dated March 16, 202; R. v. G.F., 2020 ONSC 3389 at paras. 17–18. I agree with the views of my colleague Schreck J. in G.F. at the even where the accused has been detained at an initial bail hearing he or she bears no onus (see paras. 20-21). The review is triggered automatically. There is no need to show that there has been unreasonable delay. The judge must determine whether the continued detention is justified, but may consider whether there has been unreasonable delay: Myers at paras. 29, 32.

[28] I do not agree with this line of reasoning. Recall the instruction from Myers, at para. 56, that the reviewing judge conduct a hearing from the ground up in situations where an accused person appears for a s. 525 detention review but did not undergo an initial bail hearing at the time of their arrest. In my view, Myers is saying the detention review must evolve into a bail review in these narrow circumstances. Surely, in that case, the onus reverts back to the Crown or the accused, as the case may be. Indeed, had the Supreme Court intended to change the onus at a “full bail hearing”, they would have undoubtedly expressed so. To conclude otherwise gives the accused a mechanism of bypassing the requirements of onus and a s. 520 bail review, such as establishing an error of law or material change, and allows the accused to avoid exposing themselves or their surety to cross-examination.

[29] To illustrate, consider the following example: An accused is charged with various offences, such as robbery with a firearm and possession for the purpose of trafficking in fentanyl. He is held for a show cause hearing. The Crown has screened the charges for significant penitentiary time. It is a reverse onus situation. The accused would naturally engage in a balancing exercise to determine the risk of them applying for bail or bail review where they would be required to show cause. The accused declines to bring a bail hearing and is in custody for 90 days. He is then brought forward for a detention review. According to Myers, the reviewing judge is obliged to conduct a full bail hearing. If I understand the approaches in Pescon and G.F., the onus would not apply, and the detention review morphs into a bail hearing and proceeds accordingly. Regarding a plan for release on these serious offenses, [^2] if Pescon and G.F. are correct, why wouldn’t an accused, strategically refrain from bringing an initial bail hearing where he faces a significant sentence and a reverse onus, and instead wait 90 days or so for the procedural advantage of a detention review to avoid any such burden? With respect, I wonder if this was fully contemplated in Myers, at para. 56.

[30] In sum, I adopt the approach of Grace J. from Denesevich. Where an accused is before the court for a 90-day detention review but has not undergone a first instance bail hearing or bail review, the reviewing judge conducts a bail hearing from the ground up and the onus reverts back to the Crown or defence, as the case may be.

[31] To be clear, Denesevich only applies in these narrow circumstances. Some cases, such as R. v. Leon, 2022 ONSC 5694, erroneously place the onus on the accused at the s. 525 review, even where there has been a prior bail hearing. In my view, this is a misinterpretation of Denesevich. As referenced earlier in these reasons, where there has been a prior bail hearing and the accused comes before the court for a 90-day detention review, the reverse onus does not apply and the reviewing judge has an independent responsibility to determine whether the continued detention of the accused is justified.

Issue #2: The Appropriate Procedures or Methodology to Conducting a Detention Review

[32] In Myers, at para. 46, Wagner, C.J. wrote:

The question that the judge must answer at a s. 525 hearing is therefore as follows: Is the continued detention of the accused in custody justified within the meaning of s. 515(10)? Section 515(10) sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice.

[33] Myers itself does not provide much guidance as to the mechanics, methodology or procedures to be followed for a s. 525 review. As a result, the method or process for conducting a detention review post- Myers has run afoul of the spirit and intent of the legislation and direction from the Supreme Court of Canada. What is supposed to be a review of the justification for the detention itself, has often morphed into day-long proceedings involving surety testimony, enhanced reviews of the justice of the peace’s reasons, renewed affidavits and the like. It appears, that at times, it is almost akin to the bail review process, with viva voce testimony and cross-examinations of various witnesses. This is neither desirable nor in keeping with the spirit and intent of Myers where bail has been addressed.

[34] As can be gleaned from this ruling, I am critical of the superfluous expansion of the approach being taken in the conduct of the 90-day detention review, including how relevant and trustworthy information is to be received and considered by the reviewing judge. It seems to me that some defence counsel are tending to conflate the justification for detention with a review of the detention order itself. Moreover, premised on the lack of an onus, I observe that several of my judicial colleagues have similarly decided to expand the scope of the s. 525 review beyond a straight-forward detention review. This includes amplifying the material change in circumstances benchmark, diverging from what I view is the real core of the analysis contemplated in Myers and by virtue of s. 525.

[35] In my opinion, it is timely to provide guidance to get this process back on track to what it is intended to be. Apart from the special circumstances identified by Myers, at paras. 55-56, a detention review pursuant to s. 525 of the Criminal Code should be simply that: a review of the detention. It should not be a through review of the detention order; it should not be protracted; it should not involve admitting large amounts of new evidence; and it should not become akin to a bail hearing.

[36] In Myers, at paras. 48-49, Wagner C.J. attempted to set out the scope of detention reviews:

Section 525 offers little guidance on the record available to the judge at the hearing. However, as Veale J. pointed out in Sawrenko, at para. 31, s. 525(8) serves to incorporate ss. 517 to 519, with any necessary modifications. Under s. 518(1), the prosecutor may show the circumstances of the alleged offence and the judge has a wide discretion to make inquiries, as well as to receive and consider any evidence “considered credible or trustworthy” in the circumstances of the case. The judge at the s. 525 hearing is therefore free to make inquiries about the case, as well as to rely upon the transcript, exhibits and reasons from any initial judicial interim release hearing and from any subsequent review.

Furthermore, both parties are entitled to make submissions on the basis of any additional “credible or trustworthy” information which is relevant or material to the judge’s analysis. The admissibility of any material that existed at the time of the initial bail hearing but was not presented at that point should also be governed by the criteria of due diligence and relevance discussed in St-Cloud, at paras. 130-35. In the context of a s. 525 review, the judge must be particularly attentive to any new evidence or material change in the circumstances of the accused and to its impact on the question whether his or her continued detention in custody is justified. For example, the period of pre-trial detention may have afforded the accused person time to make arrangements for a suitable surety, develop a comprehensive release plan or take other steps that would negate the initial basis for his or her detention under s. 515(10). [Emphasis added.]

[37] Read together, these passages make clear that the reviewing judge hearing a detention review has a wide discretion to determine what evidence to rely upon. It does indicate that the Crown can present evidence regarding the circumstances of the offence, which can usually be done by providing the judge with a charge sheet. The judge can also rely on the transcripts, exhibits and reasons from any prior detention orders from a bail hearing or bail review. The applicant may also file materials.

[38] Beyond that, the reviewing judge may make any inquiries about the case and consider any evidence that is credible or trustworthy in the circumstances of the case. It may be that, subject to the due diligence and relevance criteria, the accused and the Crown may present new evidence that existed at the time of the initial bail hearing but was not presented at that point: Myers, at paras. 48-49.

[39] However, the key point here is that the parties are entitled to make submissions and judges may rely on additional credible or trustworthy evidence. [^3] Nowhere in these passages does it advise that a full evidentiary hearing shall occur. Nowhere does it suggest a plethora of evidence ought to be filed. Nowhere does it suggest that sureties be proffered for examination and cross-examinations.

[40] Recall that the specific wording in s. 525 of the Criminal Code speaks to the overarching review of “Detention where Trial Delayed.” While we ought not lose sight of that fact, the Supreme Court goes on to state, at para. 63:

At the hearing, unreasonable delay is not a threshold that must be met before reviewing the detention of the accused. The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of s. 515(10). In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre-trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not —justified. [Emphasis added.]

[41] At paras. 47 and 55, Wagner C.J. contrasts s. 520 bail hearings with s. 525 detention review hearings:

The question in the s. 525 review — whether the continued detention of the accused is justified — is somewhat different in nature than the question at the initial bail hearing or in a review under s. 520 or 521. While ss. 520 and 521 exist for the purpose of reviewing a prior order, a review under s. 525 is more properly characterized as a review of the detention itself. Yet there is no indication that Parliament intended the judge presiding a s. 525 detention review hearing to reconduct the original bail hearing in its entirety simply because 90 days have elapsed. Mr. Myers himself concedes as much: he argues only that a s. 525 hearing requires a “multi-factorial analysis”: A.F., at para. 89. This means that the judge at the s. 525 hearing should in his or her analysis show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them. Similarly, any balancing exercise or weighing of factors conducted by the initial bail judge must be reviewed in light of the time that has already elapsed and any other relevant considerations, as will be discussed below. [Emphasis added].

Finally, there may be cases in which it is necessary for the reviewing judge to scrutinize the rationale offered for the original detention order against the accused. While any previous bail decisions will be relevant and will likely inform the proceedings, reviewing judges must be careful not to simply “rubber-stamp” such decisions. As I noted above, s. 525 creates 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 but are now appearing before a judge at a s. 525 hearing. For example, if when the accused appears at the s. 525 hearing it becomes clear that the initial bail judge made an error of law — perhaps by failing to apply the bail principles enunciated by this Court in Antic, at para. 67, — and that this resulted in an unnecessary detention, it would be wasteful to tell the accused at that point to make a separate application for a different review process under s. 520. The need to revisit an initial detention order will not arise in every case, and in the absence of a basis for judicial intervention, there is no need for a s. 525 hearing to become a protracted or formal proceeding. However, the judge must be alive to these issues when they arise, and must be prepared to respond to them appropriately. [Emphasis added.]

[42] Again, these passages speak to the intended nature and scope of detention reviews. The core objective is to review the justification of the detention itself in relation to proportionality of the time elapsed. A judge hearing a detention review is not expected to conduct a bail review from the ground up, unless the unique situation calls for it. These limited circumstances include examples where no bail hearing was conducted. Similarly, I do not believe that it is a direction to conduct a full hearing with the calling of sureties and giving of testimony in order to advance a material change of circumstances.

[43] Many of the post- Myers cases speak to the judge’s approach to the analysis in the s. 525 review, but not the specific mechanics of such a review. For example, in Moreira, the accused was arrested after a large-scale police investigation into drug trafficking. The accused’s proposed plan for release offered at the initial bail hearing was not acceptable. The accused then came before Spies J. for a s. 525 detention review with a new proposed plan of release. At para. 41, she stated that section 525 “imposes an independent responsibility on the reviewing judge to consider whether the continued detention of a defendant is justified.” That is nothing new and merely restates the judge’s role.

[44] In R. v. Simpson, 2019 ONSC 7349, when considering the scope of the 90-day review, Goldstein J. wrote, at para. 21:

As a judge on a 90-day review, I may accept such evidence as is credible and trustworthy in the circumstances. I may also make inquiries about the case, review transcripts and evidence, and take into account new evidence. As I read Myers, a judge on a 90-day review has a somewhat more active role than is typical in our criminal procedure. As a practical matter, the judge must satisfy himself or herself that the accused's detention in custody is still required. The judge on a 90-day review may consider whether there has been unreasonable delay. Unreasonable delay is not, however, a pre-condition for a hearing: Myers at paras. 32-33. The analysis is multi-factoral.

[45] I do not disagree with that statement. Collectively, these and other cases suggest the reviewing judge may accept credible and trustworthy evidence at the detention review. They may take an active role by making inquiries about the case. Not only that, but “the judge must be particularly attentive to any new evidence or material change in the circumstances of the accused and to its impact”: Myers, at para. 49. To me, this is discretionary. This does not signify that the reviewing judge does an in-depth analysis of the detention order. Additionally, the reviewing judge should not allow the detention review to become a protracted exercise under the guise of s. 525.

[46] Furthermore, I take a different view regarding some of the cases wherein new sureties are proposed by the accused for the detention review and a formal hearing with witnesses and evidence is conducted. For example, R. v. N.Y., 2021 ONSC 1398, R. v. Moalim, 2022 ONSC 4405, R. v. Theriault, 2021 ONSC 6613.

[47] In my opinion, the instruction from Myers is not to conduct a bail hearing de novo simply because a material change in circumstances is advanced by the accused. In contrast to s. 520, there is no basis for a hearing de novo, under s. 525, where a bail hearing has been conducted in the first instance: Myers, at para. 56. Where there is a material change in circumstances, this is but one factor for the reviewing judge to consider in determining the overarching question of whether the continued detention of the accused is still justified: Myers, at para. 63.

[48] Just like there ought not be a need to reconduct the bail hearing, it is not always necessary to scrutinize the reasons for detention from the most recent detention order. It is true that "reviewing judges must be careful not to simply "rubber-stamp" such decisions": Myers, at para. 55. Yet, if it appears there was an error of law in the detention order, the accused need not bring a separate application for a bail review. Myers suggest that the accused can raise those concerns at the detention review.

[49] The underlying premise for the detention review, albeit not dispositive, is the length of time and any unreasonable delay. Any balancing exercise or weighing of factors conducted by the initial bail jurist must be reviewed in light of the time that has already elapsed and any other relevant considerations. In the absence of a basis for judicial intervention, there is no need for a s. 525 hearing to become a protracted or formal proceeding.

[50] I cannot leave this issue without returning to the case of Moreira. The court rejected the Crown's concerns about the scope and interplay of ss. 520 and 525: Moreira, at para. 47. The court held it would be "wasteful" to dismiss the detention review and require Moreira to bring a separate s. 520 review. Instead, the court proceeded with the s. 525 review and considered all the materials and evidence filed. The judge saw “no need for a defendant to bring a blended application for a s. 520 bail review when a s. 525 detention review comes up for hearing”: Moreira, at para. 43. The court proceeded with the hearing, considered all the new evidence advanced by the defence and ultimately released the accused.

[51] In support of this approach, the court emphasized that it should have a wide discretion to receive "all relevant and credible evidence": Moreira, at para. 45. While that may be true, it does not follow that this evidence permits a review of the detention, with no limits.

[52] With respect to the procedures and scope of the s. 525 hearing, Moreira appears to obscure the purpose of a detention review. In effect, the approach in this case appears to convert a s. 525 review into a s. 520 hearing when the circumstances do not call for it.

[53] As I have already referenced, in Myers the s. 525 hearing is a review of the detention itself and must afford respect for the initial hearing. If the s. 525 hearing proceeds on the basis suggested in Moreira with a revised evidentiary record, it will effectively neuter s. 520 and create a lower and readily available process for de novo hearings. That was clearly not the intent of Parliament nor do I find it supported by Myers.

[54] Moreover, I have concerns about the comingling of ss. 525 with s. 520 as demonstrated by the following comment in Moreira, at para. 50:

In this case, the Defence recruited a new and improved surety and provided a revised release plan with GPS monitoring and it was clearly done to address the concerns expressed by Her Worship on the secondary ground. This new evidence was responsive to and alleviated a flaw identified by the Justice of the Peace and it is reasonable to think that if the plan before me was placed before her that it would have affected the result: St-Cloud at para. 137. In fact, Her Worship specifically referred to someone who was willing to directly supervise Mr. Moreira, possibly directly on a jobsite, who might have moved past his own criminal antecedents to become a solid and law-abiding member of society who is not easily fooled and manipulated, and who would not hesitate to pull bail on Mr. Moreira. The fact that Mr. Moreira was able to secure the help of Mr. D.T., who in my view is exactly that type of person, is very fortunate and, in my experience, not a common event. [Emphasis added.]

[55] As I read the ruling, it appears that the court proceeded as if this were effectively a bail hearing de novo. Moreira presented a new plan aimed at addressing the shortcomings of his original plan. Indeed, if I am in error, and this approach is within the scope of s. 525, in effect, bail reviews under s. 520 may become redundant. Even if Moreira is an accurate interpretation of Myers, it does not follow that the introduction of new evidence permits an automatic bail hearing de novo. The s. 525 hearing must still proceed on the presumption that there is a valid detention order in effect.

[56] The case raises the same question identified above: If Moreira is correct, why would any accused ever take on establishing an error of law or material change and expose themselves or their surety to cross-examination at the bail review stage when they can simply rely on the s. 525 review to present a new plan to address any shortcomings in the original plan?

[57] To this point, I am persuaded by the implicit statement from the Court of Appeal in the case of R. v. Momprevil, 2022 ONCA 36. In Momprevil, the court affirms that a detention does not become unlawful merely by the passage of time, as the initial detention is presumed valid. The remedy for a complaint about the timing of the 90-day detention review is an immediate review. I accept the statement from Momprevil that the purpose of detention reviews pursuant to s. 525 of the Criminal Code is to prevent the accused person from languishing in pre-trial custody and to require judicial oversight of lengthy pre-trial detention at specified intervals.

[58] Taken together, I understand these statements to imply that the reviewing judge must focus on the purpose of s. 525 when considering the new evidence presented by the accused at a detention review. The new evidence should not be admitted as if this is a bail review or a bail de novo. Again, it could otherwise be suggested that the detention review is providing a mechanism to bypass the onus that accompanies a bail review under s. 520.

[59] In addressing the material change in circumstances, the Moreira decision seems to have comingled the applicability and legislative scheme in ss. 525 and 520 and misapplied the flexible evidentiary threshold standard as delineated in Myers.

[60] It bears repeating the Supreme Court makes it clear that a detention review is different in nature than a bail hearing or bail review. With the absence of onus, the reviewing judge may consider and direct the parties to focus on the evidence required to determine whether the continued detention of the accused is justified. The reviewing judge must "show respect" for the findings of fact of the initial judge where there is no cause to interfere with them and should balance factors "in light of the time that has already elapsed and any other relevant considerations": Myers, at para. 47.

[61] In my opinion, the detention review process is not a reconducted de novo bail hearing or a s. 520 bail review. Unless there is a waiver, the methodology for a detention review can be accomplished by presenting the appropriate, and relevant documentary evidence, affidavits and transcripts. The Crown is at liberty to argue the material admissibility considerations in regard to any proposed or renewed surety affidavits. [^4] Generally speaking, there ought to be no need for viva voce evidence, cross-examinations or protracted hearings.

[62] A review of relevant and trustworthy evidence for such reviews may be fairly inquisitorial. While I can foresee some very limited circumstances where a more robust inquiry could be made with some evidence being adduced, I propose that the detention review ought to mirror the procedures that apply on an appeal, with focussed submissions, supplanted by the complete record before the reviewing judge.

Issue #3: The Applicability of the Palmer Test at a Detention Review

[63] The criteria for admitting new evidence is from the Supreme Court’s decision in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759. The Palmer criteria were modified to suit the bail review context in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

[64] Paragraphs 130-138 of St-Cloud reflect the approach to be taken to new evidence in the context of bail reviews:

a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. The reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for a reason that is legitimate and reasonable.

b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. In the context of a bail review, it is sufficient that the evidence is relevant for the purposes of the bail review.

c. The evidence must be credible in the sense that it is reasonable capable of belief. This criterion must be interpreted in light of the relaxation of the rules of evidence at the bail stage.

d. The evidence must be significant. The new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(1)(c).

[65] When new evidence meets the four criteria for admissibility, the reviewing judge can repeat the analysis for whether detention is justified as if he/she were the initial decision maker.

[66] The applicant raised this question in the course of this detention review: how do the Palmer criteria apply to a s. 525 detention review? In particular, the discussion that arose in the case of Moreira. With respect, I again disagree with the finding in Moreira and the judge’s interpretation and application of the Palmer test for s. 525 hearings.

[67] In Moreira, Spies J. recognized, at para. 45, that Myers placed a limit on the evidence the reviewing judge hears. That is, the evidence is admissible only if it satisfies the due diligence test from Palmer and St-Cloud if it existed at the time of the initial bail hearing but was not presented at that point. I agree with this part of the interpretation.

[68] It is true that the Palmer criteria are to be applied more flexibly in the bail context. Given the generally expeditious nature of the interim release process, Wagner J. (as he then was) had occasion to state the following, at para. 129 of St.-Cloud:

In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 Cr.C. Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr.C. [Emphasis added.]

[69] Chief Justice Wagner endorsed this flexible approach by adopting St-Cloud as the standard of admissibility for new evidence in Myers, at para. 49.

[70] In Moreira, Spies J. found that to preclude the evidence of new sureties which dealt specifically with the concerns of the justice of the peace at the initial bail hearing would be inconsistent with Myers and would undermine the purpose of s. 525 of the Criminal Code, at paras. 47-48.

[71] This is where I must disagree with approach in Moreira. It seems that, in addressing the Palmer rationale, this statement has the effect of “watering down” the due diligence and relevance criteria for the receipt of information or evidence at a detention review.

[72] The jurist acknowledged, at para. 49, that the evidence of the new surety and GPS monitoring presented by the accused at the s. 525 detention review was available for consideration at the initial bail review. With respect, rather than applying the criteria of due diligence and relevance, Spies J. held “[t]he presentation of the same evidence in a new manner, or the presence of a new surety, amounts to a material change in some circumstances”, and allowed the new evidence on these grounds instead.

[73] It is significant to note that in Myers, Wagner C.J. stated at para. 49: “The admissibility of any material that existed at the time of the initial bail hearing but was not presented at that point should also be governed by the criteria of due diligence and relevance discussed in St-Cloud, at paras. 130-135” (emphasis added).

[74] I am concerned about cases that, like Moreira, allow new evidence at a s. 525 detention review without considering or applying the standard for admissibility set out in St-Cloud and applied in Myers.

[75] For example, in R. v. Belway, 2022 ONSC 1031, the accused was arrested for selling crack cocaine to an undercover police officer and was denied release at the initial bail hearing. At the s. 525 hearing, the accused proposed a new release plan and provided new evidence in support of it via oral testimony from two proposed sureties. There was no mention of Palmer or St-Cloud, suggesting the test for admitting new evidence was not considered by the reviewing judge.

[76] Likewise, in R. v. M.J.I., 2020 ONSC 2497, the court at the s. 525 detention review received affidavits from the offender, a physician with expertise on COVID-19 and from one of the proposed sureties without reference to the due diligence or reliability criteria from Palmer and St-Cloud.

[77] The impetus in Myers was to address length of time or (unreasonable) delay. In my opinion, the credible and trustworthy criteria for detention reviews does not oust the necessity to consider the Palmer threshold based on Myers and St-Cloud. Any material change in circumstances is juxtaposed with the deference to be shown to the original show cause jurist. 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".

[78] The Supreme Court in Myers intended the s. 525 detention hearing to be limited by the due diligence and relevance criteria set out in Palmer and modified in St-Cloud. Abiding by this instruction prevents the proceedings from becoming protracted and formal where the circumstances do not call for it. Abiding by this instruction prevents the detention review from becoming a review without limits.

[79] Therefore, in addressing the issue of admissibility of evidence, I do not accept counsel’s submissions that to deny the current s. 525 application on the basis that the applicant has not met the Palmer criteria would be to ignore the “practical realities” of how defence counsel proceed to seek the release of their client. Contrary to what is being asserted, this would not undermine the reviewing court’s task pursuant to s. 525.

[80] While the Palmer principles and due diligence criteria is to be applied in a flexible manner, there is no basis to either extinguish or diminish its applicability for the admissibility of new evidence or to demonstrate a material change in circumstances at a detention review.

The Detention Review in this Case:

Positions of the Parties:

[81] The applicant submits that there was a material change in circumstances. It is submitted that having regard to the new proposed plan of release and anticipated evidence, and in light of the significant time that the applicant has spent in-custody, his continued detention is no longer justified such that he should be released.

[82] The applicant says that he is proposing a strong, enhanced and restrictive plan of supervision. The proposed plan of release now is similar to the plan that was proposed in the initial bail hearing, in that the applicant would be subject to a house arrest condition with 24 hour supervision. However, two new sureties will replace the former. The applicant’s uncle, the applicant’s aunt and his mother will remain as an assisting surety. The applicant’s cousin is also being sought to be added as a complementary surety. Furthermore, GPS monitoring will be implemented, and the new sureties have given evidence through affidavits that they will supplement this with four already-installed Ring security cameras when a door of the house is opened. They will also control and supervise the applicant’s use of any cellphone or electronic device capable of accessing the internet. The presence of these new sureties constitutes a material change in circumstances and addresses the tertiary ground concerns.

[83] The Crown responds that the justice of the peace fully considered the applicant’s background, the circumstances of the offences and the proposed plan of release. The Crown submits that the new information provided in this hearing does not amount to a material change in circumstances and that the serious circumstances of the case have not changed the basis upon which the applicant’s continued detention is warranted.

Summary of the Evidence:

[84] A summary of the evidence and allegations before Justice of the Peace Walker filed for this proceeding is reproduced from the Crown’s factum:

The applicant was arrested on July 28, 2023 for possession of a loaded firearm. Additional charges were laid on August 3, 2023 for the applicant’s alleged role in a large scale fentanyl production and fentanyl, cocaine and methamphetamine distribution network.

The Crown alleges that a group of individuals conspired to produce large quantities of fentanyl at identified clandestine laboratory sites and distributed large quantities of fentanyl, cocaine and methamphetamine which were stored at a stash house operated by the applicant.

Between November 2021 and August 2023, a joint forces investigation led by the Hamilton Police Service dubbed “Project Odeon” identified a drug network alleged to be manufacturing fentanyl and distributing large quantities of fentanyl, methamphetamine and cocaine in the Greater Toronto and Hamilton area.

A clandestine fentanyl laboratory was located at 4057 Bethesda Road, Whitchurch-Stoufville. Dismantled laboratory equipment and chemical precursors were found at this residence and samples of the equipment and substances tested positive for fentanyl at 79% purity. Persons involved in the drug network including the applicant, A.S., S.I., G.M., and G.S., were seen attending this location on multiple occasions through physical surveillance, audio and video probes. L.D., K.H., T.B. and A.S. were identified as being the main individuals responsible for this lab.

On July 11, 2023, members of the drug network, including the applicant, were seen removing precursor chemicals and laboratory equipment from 4057 Bethesda Road and loading them into a U-Haul truck. The items were taken to an outbuilding at 6800 Sixteen Road, Smithville, where an operative clandestine fentanyl laboratory was located.

In addition to the above, clandestine fentanyl laboratories, police identified a stash house located at 904 – 120 Eagle Rock Way, Vaughan. This stash house was found to be warehousing kilogram level quantities of fentanyl, methamphetamine and cocaine as well as substances utilized in the production of fentanyl. The applicant was one of two individuals in the drug network, with A.S., who had access and control of this location.

On July 18, 2023 police seized 1.8 kilograms of cocaine, 1.3 kilograms of fentanyl, 6 kilograms of ketamine, 400g of benzodiazepine, 12 kilograms of a Schedule IV precursor utilized in the production of fentanyl, 50 kilograms of cutting agent, and a notebook with a recipe for fentanyl among other drug related items from the Eagle Rock Way location during a covert entry. On July 28, 2023, police seized 18 kilograms of methamphetamine from the same location.

The applicant is alleged to have played two crucial roles in the drug network. First, he was a trusted member of the clandestine laboratory operation. Second, he was a drug trafficker responsible for a drug stash house warehousing kilogram level substances.

On July 18, 2023 police covertly entered 902 – 120 Eagle Rock Way and located significant quantities of controlled substances as well as evidence of drug trafficking and production as follows: 1.3kg fentanyl, 1.8kg cocaine, 6kg ketamine, and 400g benzodiazepine, 12kg schedule IV substance utilized in the process and production of fentanyl, A recipe for the production of fentanyl. Audio probes were installed at the stash location on the same date and the unit was staged to appear like a break and enter had occurred. The applicant was observed attending the stash house after police had entered and was captured by the probe to be in conversation with someone discussing the entry as well as the items that were taken.

On July 28, 2023, police covertly entered 902 – 120 Eagle Rock Way for a second time and located 18 kilograms of methamphetamine and a large quantity of suspected cutting agent. On July 28, 2023, police executed a search warrant at the applicant’s residence and located 9.52g of fentanyl in six baggies, 76 MDA pills, scales with residue and drug packaging.

On July 27, 2023, intercepted phone calls and police surveillance revealed an escalating conflict between the applicant and A.S. over the loss of product at Eagle Rock Way. The applicant was intercepted in the morning telling an unknown female that “It’s not like nothin’s happening … me and Paul have the gun loaded”. “Paul” is believed to be a reference the applicant’s brother, C.G. The applicant later told another person “I have bare ammo bro. I have nines and forties”. Later in the afternoon, the applicant was intercepted telling an unknown person that “I’m going to go talk to them” and “they told us to pull up to talk at a like, open parking lot”. A parking lot meeting between the applicant, his brother, A.S and an unknown male was observed by police a short time later…The applicant called an unknown female and stated “Family up in the car there is a bag. Open the bag and you’re going to see a green 43”. The applicant, his brother and M. were followed from the meeting to Unit B – 192 Burgar Street, Welland. They were arrested the next day in a vehicle shortly after leaving the residence. A loaded green Glock 43 XL handgun was seized from M.’s purse incident to arrest. A search of the address resulted in the seizure of four prohibited extended magazines with ammunition and 5.52g of fentanyl.

A phone located at 108 Pinot Crescent was analyzed and determined to be associated to the applicant through “selfie” photos, contacts and contents. The phone contained photos of the same green Glock handgun located in M.’s purse and the same prohibited magazines located at Burgar St. Additional photos located on the phone matched the inside of 4057 Bethesda and Eagle Rock Way. Photos of controlled substances including what appears to be cocaine and crystal meth were also observed. The “notes” section of the phone contained memos consistent with delivery information related to drugs, drug weights and precursor information.

The Show Cause Hearing:

[85] The applicant bore the onus at the initial bail hearing. The release plan proposed at the bail hearing was a 24-7 supervision plan involving three of the applicant’s family members, including the applicant’s mother, “K.G.”. The applicant was to live under a house arrest condition with his cousin “B.S.B.”, with all three family member sureties working in tandem to provide 24-hour supervision. GPS monitoring was offered, if required.

[86] In lengthy and comprehensive reasons, Justice of the Peace Walker ultimately detained the applicant on the tertiary ground. The justice of the peace found the applicant’s mother’s answers to be confusing at times, and took issue with a lack of evidence as to what the 24-hour supervision would actually entail. The vague nature of the proposed supervision, including the offer for GPS monitoring, was specifically held to be fatal to the public’s confidence in the overall plan of release.

Discussion:

[87] At the outset of this review, I advised counsel that this detention review was to be focussed with oral submissions. However, the applicant insisted on calling evidence and the Crown overtly acquiesced to that approach. Thus, this detention review morphed into a one-day bail review with the implicit focus on the detention “decision” of Justice of the Peace Walker. [^5]

[88] There were essentially no submissions regarding the time that had elapsed to date, unreasonable or not. The principal argument was the continued justification for detention based on a material change of circumstances.

[89] A material change in circumstances is but one consideration, amongst many under Myers. In any event, both in written and oral submissions, the applicant concedes that the plan being proposed is essentially the same as that presented at the bail hearing, with different sureties being proffered. The admissibility of the new evidence pursuant to the Palmer test was not referenced in any meaningful way, in written or oral submissions.

[90] It bears repeating what I stated in R. v. Virag, 2020 ONSC 3255, (albeit for a s. 520 review.) Proffering what is essentially the same plan of supervision but with a different surety does not amount to a material change in circumstance. As Hill J. held in R. v. Ferguson at para. 17:

…Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

[91] At para. 64 in Virag, I held that:

In my opinion, Ferguson is still good law in Ontario. As a general proposition, a change of sureties, or advancing an increased number of sureties per se, does not amount to a material change of circumstances, without something more or addressing the Palmer criteria. While I may be jumping ahead of the analysis, even with the infusion of 24/7 electronic monitoring proposed in this case, the law is clear that the sureties must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention: St-Cloud, at paras. 135, 137.

[92] The renewed application for electronic monitoring and cameras does not change the landscape. Electronic monitoring was offered at the initial show cause hearing. Indeed, this type of electronic monitoring system has been addressed by several jurists. In United States of America v. Pannell, an extradition case, Nordheimer J. (as he then was), stated that the system does not restrict the subject from breaching, it merely alerts the service provider of a breach. GPS monitoring has been described as a risk management tool, rather than crime prevention tool: see R. v. J.J., 2020 ONCA 280, at paras. 24-27.

[93] GPS monitoring provides some increased level of certainty as some breaches will be detected relatively rapidly, but does not prevent such non-compliance. While electronic monitoring may assist the sureties, a plan of supervision is only as good as the sureties who monitor it: Pannell, at para. 23. Indeed, 24/7 electronic monitoring does not replace the need for good, effective and dependable sureties.

[94] I am advised that the matter is proceeding in the normal course in the Ontario Court of Justice.

[95] True, the monetary pledge here is substantial, as is the commitment to GPS monitoring and assistance from other family members. However, analogous to the justice of the peace’s conclusion, the evidence before me regarding the proposed plan was confusing at times, with a lack of cogent and persuasive evidence as to what the 24-hour supervision would actually entail.

[96] Myers directs that the judge should consider the impact of the elapsed or anticipated passage of time on the appropriateness or proportionality of the detention. In this case, the applicant faces a significant penitentiary sentence, if convicted. To date, there has been no unreasonable delay.

[97] In any event, I find that this “renewed” plan is no better than the original plan and simply constitutes a switch in the sureties, which offers no meaningful improvements to the concerns noted by justice of the peace.

[98] Upon my review of this record, with the nature of these very serious offences, the evidence of threats with the possible use of a firearm, the applicant’s direct involvement in this large-scale commercial drug operation, the affidavit evidence provided, the alleged material change of circumstances, with no unreasonable delay; along with all of the factors pursuant to s. 515(10)(c) of the Criminal Code, I find that the applicant’s continued detention is justified.

[99] That should complete this ruling. However, as I heard the proposed sureties’ evidence, I can provide the following observations.

[100] The applicant’s aunt, P.K.G. testified. Notwithstanding the benefit of a fully accredited interpreter, this witness’ evidence was continually evasive, vague and equivocal. The Crown had to ask the same, simple question three or four times, and the witness remained unresponsive. When cross-examined about her knowledge of the applicant, she testified that she was hesitant to ask questions or inquire into his background. Her knowledge of the applicant was limited. Her evidence was internally inconsistent. Her affidavit and initial testimony revealed that she worked 25-28 hours a week, but, when challenged as to her ability to offer supervision, it vacillated into only having to work two or three hours a day, then it was one to six hours a day. She did not adequately explain who would supervise the applicant when she was unavailable and her husband was out working or otherwise unavailable.

[101] J.S.G., the applicant’s uncle, was more forthright with his evidence. Admittedly, he is a long-haul truck driver with shifts of over 12 hours driving to and from Michigan, five to six days a week. Any explanation offered regarding when he would be able to sleep, and when he would be able to supervise the applicant was entirely ambiguous and unsatisfactory.

[102] The applicant’s mother testified. Similar to my review of the transcripts at the initial show cause hearing, I agree entirely with the observations of the learned justice of the peace. This witness’ evidence was unresponsive and replete with rote recitations to the effect that “If he does anything I will call the police.”

[103] Contrary to counsel’s able assertions, if I were required to so opine, I would have no confidence in all of these sureties’ ability to adequately supervise the applicant. Indeed, the proposed operation of the supervision and plan of release is fatal to the public’s confidence in the administration of justice.

Disposition

[104] Pursuant to s. 525 of the Criminal Code, the applicant’s continued detention is justified.

A.J. Goodman J. Date: January 16, 2024

Corrigendum

a) Paragraph 11 change from “Thus, I agree with the applicant that neither party has the onus to demonstrate the justification, or not, for detention where an accused appears for a s. 525 detention review and has already undergone a bail hearing, pursuant to ss. 520 or 521 of the Criminal Code.” To “Thus, I agree with the applicant that neither party has the onus to demonstrate the justification, or not, for detention where an accused appears for a s. 525 detention review and has already undergone a bail hearing, pursuant to s. 515(1) of the Criminal Code.”

[^1]: This, in and of itself, gives rise to a slew of procedural issues that are beyond the scope of this decision. I expect the Court of Appeal for Ontario will rule on this issue in due course. [^2]: Non- s. 469 offences. [^3]: For the moment, I will leave aside the concept of due diligence. [^4]: As I will address momentarily, the Crown can raise the issue of due diligence. [^5]: Notwithstanding the lack of an onus, I accept that I failed to direct and focus the parties to the correct approach and methodology of the detention review hearing issues, and reluctantly allowed viva voce evidence to be presented.