Court of Appeal for Ontario

Date: February 16, 2018 Docket: C63093

Justices: Sharpe, Roberts and Fairburn JJ.A.

Between

Her Majesty the Queen Appellant

and

Justin Meads Respondent

Counsel

Michael Perlin and Jennifer Epstein, for the appellant

Erec Rolfe and Ruchira Kulkarni, for the respondent

Heard

December 18, 2017

Appeal

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.

Reasons for Decision

Sharpe J.A.:

Introduction

[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 accused's 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 Crown's 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 justice's 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 appellant's 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 appellant's 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 appellant's 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 Crown's 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 law's purpose is distinct from the means used to achieve that purpose: Moriarity, at para. 27. A law's means may be helpful in determining its objective, but the two must be treated separately.

Second, the law's 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 Court's 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 Court's 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 Court's 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 Court's 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 Court's 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 Crown's 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 Crown's 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 Crown's 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 Minister's 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 Crown's 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 accused's 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 accused's 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 offender's 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 accused's] 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 accused's 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