WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. Order directing matters not to be published for specified period.

(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Failure to comply. — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2016-07-28

Court File No.: 4011-998-16-2586

Between:

Her Majesty the Queen

— AND —

J.M.

Before: Justice of the Peace J. Gary McMahon

Application for Adjournment heard on: July 13, 2016

Reasons for Ruling released on: July 28, 2016

Counsel:

• R. Bald, counsel for the Crown
• J. Recoskie, counsel for J.M.

JUSTICE OF THE PEACE J. G. MCMAHON:

Facts and Background

[1] J.M. is charged with having committed, on July 10, 2016, three Criminal Code offences against his spouse: assault contrary to s. 266; sexual assault contrary to s. 271; and unlawful confinement contrary to s. 279(2). J.M. was arrested on July 12, 2016. He was brought to bail on July 13, 2016, and was ready for his bail hearing on that day. However, the Crown was not consenting to his release and applied to adjourn the bail hearing to July 15, 2016, pursuant to s. 516(1) of the Criminal Code. Defence counsel opposed the application.

[2] I denied the Crown's application for adjournment. The bail hearing proceeded on July 13, 2016. However, I did commit to provide written reasons for my ruling on the Crown's application for adjournment.

Positions of Crown and Defence Counsel

[3] Counsel for the Crown submitted that J.M. did not have a criminal record, but that the charges were serious and that an adjournment was required for "further investigation". However, the Crown did subsequently specify that there were two purposes for the adjournment. The first purpose was to conduct interviews to obtain evidence from J.M.'s nine year-old child as well as a Children's Aid worker, who would have interviewed the child. The Crown explained that the child would have heard things during the alleged commission of the offences before the court. In addition, the Crown stated that the child may have been assaulted by J.M.—thereby creating the potential for an additional charge. The plan was to conduct a video-recorded interview of the child. The second purpose of the adjournment was to permit police to conduct other investigations they would deem appropriate, which could include interviews of other persons.

[4] The Crown advanced the position that the evidence it was seeking would impact the strength of the Crown's case, which is a relevant consideration in the determination of bail. However, the Crown did also advise the court that it was not yet certain if the evidence of the child would strengthen or weaken the Crown's case. Based on the case law it submitted to the court, the Crown also advanced the position that the adjournment would not constitute a breach of J.M.'s Charter rights.

[5] In opposing the Crown's application, Defence counsel confirmed that J.M.: was 35 years of age; had no criminal record; his parents were present at court; and that he was ready for his bail hearing. Defence counsel adopted the view that the court was now aware of the circumstances involving J.M.'s child and that the question of whether a new charge was laid or not, should not prevent the determination of bail with respect to the current charges before the court. Counsel also submitted that at the conclusion of a bail hearing on the current charges, bail conditions could be imposed to prevent communication with the complainant and the child thereby addressing any concerns related to the potential of any improper interference with any witnesses. Defence counsel also raised concerns that there was insufficient detail as to how and when the additional police interviews would be conducted and completed. In reply, the Crown stated that a detective constable had been assigned to the matter.

The Right to the Prompt Determination of Bail and s. 516(1)

[6] For convenience, it may prove helpful to reproduce s. 516(1) of the Criminal Code, as it presently reads:

s. 516(1)—A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.

[7] There is little case law that addresses the factors or criteria to consider, weigh and balance where a justice of the peace must decide whether to grant a Crown application for adjournment made pursuant to s. 516(1). The Crown did direct the court's attention to The Law of Bail in Canada for guidance. In The Law of Bail in Canada, Third Edition, 2013, Carswell, Toronto, Trotter J. states, at 5-21:

While there is no guidance to be found in the provision itself, to obtain an adjournment of any length of time, it seems reasonable that the prosecutor must offer some legitimate reason for attempting to pre-empt the accused's right to secure release on bail. An adjournment on behalf of the prosecutor need not be granted merely because it is requested.

[8] However, there is a growing body of case law that explains the importance of s. 516(1). In R. v. Brown, [2007] O.J. No. 2830 (ONSC) (affirmed at 2009 ONCA 633, [2009] O.J. No. 3592 (ONCA)), Nordheimer J., at paras. 9 to 12, addressed the significance of s. 503 (the obligation to be brought before a justice within 24 hours of arrest) and s. 516(1):

9 I begin my analysis of these applications by pointing out that the clear spirit and intent of these two sections of the Criminal Code is to ensure that a person who is arrested has the ability, at the earliest possible opportunity, to have a judicial officer review their detention and determine if the continuation of that detention is warranted. There can be no debate that any person who is arrested is entitled to prompt and early determination as to the legitimacy and necessity of their detention. This is normally accomplished through a formal bail hearing.

10 Section 11(e) of the Charter establishes a person's constitutional right to bail and the right not to be deprived of bail except for just cause. A person who is arrested is also entitled under s. 10(c) of the Charter to have their detention determined by way of habeas corpus and to be released if their detention is not lawful.

11 It does not appear that courts have been called upon frequently to deal with these sections of the Criminal Code, but, when they have, courts have consistency pointed out that these provisions are among the most important provisions in the Criminal Code. For example, in R. v. Simpson, 88 C.C.C. (3d) 377 (Nfld. C.A.) Chief Justice Goodridge said, page 386:

"Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation."

12 In my view, what has occurred to date in this case is improper and it is unacceptable. Regardless of the nature of the charges and the circumstances surrounding them, each of these applicants was entitled to have their rights respected and to be accorded the safeguards provided by our law. Among other things, this means that each of these accused have the right to have the appropriateness of their detention determined at the earliest possible moment. A person who is held in custody, when he or she should not be, even if for only the briefest of times, has had one of their most fundamental rights, that is the right to liberty, infringed. In this regard, the words of Mr. Iacobucci in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 at paragraph 41 bear repeating:

"At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty."

[9] The words of Iacobucci J. (in dissent), in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 47, have since been cited with approval by the majority of the Supreme Court as well as the Ontario Court of Appeal: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 51; R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, (ONCA), at para. 37. In Toronto Star Newspapers Ltd., the majority of the Court recognized that being arrested and detained, even for short period, can cause significant disruptions and hardships on the presumed innocent. Deschamps J. wrote, at para. 51:

…The first day in custody may be overwhelming for an accused; this is especially true if the conditions of detention are unsatisfactory. The potential hardship at this initial stage cannot be underestimated…

A day in the life of an accused person may have a life long impact…

[10] In addition to the liberty interests of the individual, the presumption of innocence is always a dominant consideration at bail. The presumption of innocence at bail is entrenched by s. 11(e) of the Charter: R. v. Pearson, [1992] 3 S.C.R. 665, at 688. In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, Wagner J., speaking of the Court, stated, at para. 109:

This conscious choice to expedite the release hearing is grounded in the importance our society attaches to the presumption of innocence and the right of individuals to liberty even when charged with a serious criminal offence…

[11] The central importance of the presumption of innocence to our criminal justice system was explained by Dickson C.J. in R. v. Oakes, [1986] 1 S.C.R. 103, as follows, at para. 29:

The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s. 11(d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Lamer J.) The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise.

[12] Every adjournment and delay at bail permits pre-trial detention to continue and can impact on the Charter rights of the accused person. The protections offered by s. 11(e) of the Charter are both substantive and procedural and "…the bail process is inextricably linked to the right to bail itself.": Toronto Star Newspapers Ltd., at para. 14.

[13] The courts have therefore consistently upheld the necessity to respect the right to the prompt determination of bail as well as the associated requirements of s. 516(1). The complexity of a matter, a large number of accused persons, the seriousness of a matter or the lack of institutional resources have been said to be insufficient reasons to deny an accused person's constitutional right to the prompt determination of his or her bail: R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, (ONCA); R. v. Elbadri, [2011] O.J. No. 6123 (ONSC); R. v. Brown, [2007] O.J. No. 2830 (ONSC), affirmed at 2009 ONCA 633, [2009] O.J. No. 3592 (ONCA); R. v. J.V., [2002] O.J. No. 1027 (ONSC).

The Crown's Right to a Reasonable Opportunity to Show Cause

[14] The expedited process of bail carries significant consequences for the preparation of both the Crown and Defence cases. However, given that we are dealing with a Crown application, I will focus on the Crown perspective.

[15] In the short time frame between arrest and the appearance of the accused person in bail court, counsel for the Crown must review the case file, including: police reports, witness statements, the criminal record (if any) and any other available evidence. This process must be undertaken for each accused person on the docket. In this environment, "[t]he Crown is called upon to perform a number of duties; assist the court in arriving at a just result, protect complainants, witnesses, and the community, and also be fair to accused persons": R. v. Jevons, 2008 ONCJ 559, [2008] O.J. No. 4397 (ONCJ), at para. 31. The tasks are no doubt challenging. Nonetheless, as noted above, the case law appears to be clear—the lack of institutional resources is not a sufficient reason to deny the right to the prompt determination of bail.

[16] In R. v. J.V., Hill J., citing substantial authorities, confirmed: the Crown's duty to protect the public, complainants and witnesses (at para. 69); that the right to a fair hearing and the right to be heard apply equally to the Crown (at paras. 95 and 99); and that in the adversarial process of bail, both the Crown and the accused person have an equal right to make their respective cases at bail (at para. 103). These principles are reflected in the bail provisions of the Criminal Code—s. 515(1) expressly recognizes the Crown's right to "a reasonable opportunity" to show cause for detention (or another order under s. 515) with respect to an offence charged. This is only logical. The constitutional entitlement to bail is not absolute—s. 11(e) of the Charter provides for the denial of bail for just cause. This must necessarily include the opportunity to show that just cause.

[17] However, the Crown's right to show cause is always tempered by the legal requirements of bail. The most important limitation is that the expedited nature of bail is not only a hallmark of the bail system, it is a legislative and constitutional imperative. It is therefore not a coincidence that s. 515(1) qualifies the Crown's right to show cause with the words "reasonable opportunity". What is reasonable will be defined by what is fair and sensible in the circumstances of the case and of the accused person before the court given the legal requirement for the prompt determination of bail.

[18] In evaluating whether the Crown has a "reasonable opportunity" to show cause, it is important to consider that, by design, the bail provisions of the Criminal Code provide for very flexible rules of evidence which can generously assist the Crown in presenting its case within the expedited process of bail. In Toronto Star Newspapers Ltd., Deschamps J. stated, at para. 28:

[28] To avoid any delay prejudicial to an accused who ought to be released, while at the same time ensuring that those who do not meet the criteria for release are kept in custody, compromises had to be made regarding the nature of the evidence to be adduced at the bail hearing. There are practically no prohibitions as regards the evidence the prosecution can lead to show cause why the detention of the accused in custody is justified. According to s. 518(1)(e) Cr. C., the prosecutor may lead any evidence that is "credible or trustworthy", which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges, or personal information on living and social habits. The justice has a broad discretion to "make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable" (s. 518(1)(a)). The process is informal; the bail hearing can even take place over the phone (s. 515(2.2)).

[19] The efforts to reconcile and accommodate competing interests at bail are also reflected in s. 516(1). Reading s. 516(1) in its entire context and in its grammatical and ordinary sense leaves no doubt that Parliament recognized that situations may arise that justify granting a Crown application for an adjournment of bail proceedings notwithstanding the requirement for the prompt determination of bail. However, no adjournment is to exceed three clear days without the consent of the accused person.

[20] There is another important limitation in the application of s. 516(1). The reason for a Crown adjournment must be related and relevant to the determination of bail for a charge before the court because s. 516(1) expressly states that the authority to grant an adjournment arises "…before or at any time during the course of any proceedings under section 515…". This limitation would necessarily exclude the use of s. 516(1) for any reason or purpose extraneous to the determination of bail proceedings under s. 515. The idea that bail decisions must not be influenced by considerations extraneous to the purpose of bail is neither new nor surprising. In R. v. Morales, [1992] 3 S.C.R. 711, Lamer C.J. stated, at 736:

In Pearson, I identified two factors which in my view are vital to a determination that there is just cause under s. 11(e). First, the denial of bail must occur only in a narrow set of circumstances. Second, the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system...

[21] There is no doubt that the expedited nature of bail impacts on the conduct and outcome of bail hearings. Bail occurs at the beginning of the criminal process where the information/evidence about the accused person and the circumstances of the case will often be incomplete. Unless the presiding justice of the peace exercises his or her discretion to make inquiries pursuant to s. 518(1)(a), a bail decision is based on the available evidence presented by the Crown and Defence—even where that evidence is limited. There is therefore continuous tension between the desire for more time to gather evidence and prepare for hearings and the right of accused persons to a prompt determination of bail. In s. 516(1), the Crown and Defence have a mechanism to request an adjournment of the bail proceedings for, inter alia, the purpose of gathering additional evidence. The presiding justice of the peace must decide whether, in the circumstances, the adjournment should be granted.

Judicial Discretion: The General Principles

[22] The decision to grant or deny an application for adjournment pursuant to s. 516(1) necessarily involves the exercise of judicial discretion. Judicial discretion must be exercised within the boundaries of the relevant legal principles and will necessarily be defined by the relevant circumstances before the court.

[23] In City of Mississauga v. Malik and Fasih, 2010 ONSC 2334, Ricchetti J. provided a concise description of the legal principles that guide the exercise of judicial discretion. Even though that case dealt with the adjournment of a trial in provincial regulatory proceedings, the following general principles would, in my view, also find application to bail proceedings. Ricchetti J. stated, at paras. 20 to 25:

20 Whether or not to grant an adjournment is in the discretion of the presiding judicial officer. Generally, decisions made in the exercise of this discretion are given considerable deference, provided they are made judicially.

21 Judicial discretion is defined in Black's Law Dictionary, 8th edition, as "The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law."

22 Judicial discretion is nevertheless subject to review. See Barrette v. The Queen, 29 C.C.C. (2d) 189 (S.C.C.)

23 As judicial officers, sufficient reasons are required to permit a reviewing court to consider the basis of how the discretion was exercised. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

24 In Children's Aid Society of Toronto v. Katherine K. (No. 1), [2002] O.J. No. 5910 (Ont. S.C.), the trial judge refused to grant an adjournment of a child welfare matter. In allowing the appeal, Justice LaForme concluded as follows:

"When an adjournment is sought, I believe it is incumbent upon the hearing judge to make further inquiries to demonstrate that the request was fairly listened to and that due consideration was given to it. Reasons might be provided for denying an adjournment."

25 Where the request for an adjournment is made, the judicial officer is bound to demonstrate that the request was fairly listened to and the judicial officer considered all relevant factors in deciding whether to grant the adjournment…

The Mechanics of Judicial Discretion and s. 516(1)

[24] In R. v. Hudson, 2011 ONSC 5176, Trotter J. concluded: that the right to bail belongs to the accused person; that the accused person largely controls if and when to apply for bail; and the accused person may adjourn the bail proceedings for lengthy periods, including an adjournment sine die (see also R. v. Reed, 2013 ONSC 4247, at para. 21). The situation is opposite for the Crown. The starting point for the consideration of any Crown application for an adjournment pursuant to s. 516(1) is the most obvious— no adjournment shall exceed three clear days unless the accused person consents.

[25] Where the Crown applies for an adjournment, the presiding justice of the peace must necessarily engage in a weighing and balancing exercise to determine if the reason for the adjournment is sufficient to pre-empt the accused person's right to have his or her constitutional entitlement to bail promptly determined. This will necessarily involve consideration of the legal principles and competing interests already discussed. The final outcome of the exercise will greatly depend on the circumstances of the case and the personal circumstances of the accused person before the court.

[26] I have found the following principles and reminders to be helpful in guiding the analysis:

a) Even though a justice of the peace presiding at bail is not a court of competent jurisdiction to grant a Charter remedy, he or she must always act in a Charter-compliant manner. The acts and omissions of a justice of the peace in adjourning bail matters can attract Charter scrutiny: R. v. Maric, [2013] O.J. No. 306 (ONSC), at paras. 50 and 54.

b) The Crown's reason for an adjournment must be related and relevant to the determination of s. 515 bail proceedings for a charge before the court. Any reason that is extraneous to the determination of those bail proceedings must be refused.

c) A Crown application for an adjournment of three clear days or less should never be granted in an automatic fashion. Given that pre-trial detention, even for a brief duration, engages the substantive and procedural protections of s. 11(e)—a Crown application can only be granted where the reason for adjournment is sufficient to pre-empt the right to the prompt determination of bail.

d) The Crown has a duty to be full, fair and frank when making application for an adjournment pursuant to s. 516(1). As Defence counsel pointed out in his submissions—the nature of these obligations was explained in R. v. Donnelly, [2013] O.J. No. 5819 (ONSC), where Nordheimer J. wrote, at para. 48:

48 When it comes to the question of bail for an accused person, police and prosecutors must be especially vigilant to ensure that only those persons whose continued detention is essential to the proper administration of justice are detained. Great care must be taken to ensure that any information provided to the court relating to the accused person, and any reasons underlying a request for that continued detention, even for a short period, are as complete and accurate as possible. Neither the immediacy of the matter coming forward, or the complexity of the investigation, or the volume of material, or the number of persons arrested, or any other like matters, can excuse non-compliance with the overarching need to be full, fair and frank with defence counsel and the court.

e) Adjournment applications must be dealt with in an expeditious manner: R. v. Donnelly, at para. 41. The Crown and Defence have the right to be heard, but the question to be decided is very narrow in scope and the process is to be informal.

f) Given the countless fact scenarios that can present themselves at bail, it would not be practical to draft a complete list of the reasons the Crown may advance to support adjournment requests. However, experience shows us that most reasons will be related to the Crown's right to a 'reasonable opportunity' to show cause, notably the need for additional time to obtain evidence and prepare the Crown's case at bail. Experience also shows us that such reasons fall into three principal categories, namely:

i. evidence that is not available at the time of the bail hearing, but that the Crown says is material to the Crown's case at bail;

ii. a witness that is not available at the time of the bail hearing, but that the Crown says will provide evidence material to the Crown's case at bail; and

iii. court documents, government-generated documents or other documents that cannot be accessed at the time of the bail hearing, but that the Crown says are material to the Crown's case at bail or to the proceedings.

g) In assessing the reasons for an adjournment, the court may consider, inter alia: why the evidence or a witness or a document is not available for the bail hearing; whether the evidence sought can be adduced and received by way of application of the flexible rules of evidence at bail or by way of another witness; the significance of the evidence within the context of the known sources of evidence available to the Crown; the relevance of the evidence sought with respect to the determination of bail; and how long it will take to obtain the evidence. The unavailability of court and government documents may, in the appropriate circumstances, be considered within the context of the lack of institutional resources.

h) The personal circumstances of the accused person and the circumstances of the case are relevant to the issue of adjournments.

i) The presiding justice of the peace may grant an adjournment for a shorter duration than that requested by the Crown.

Adjournments for the Purpose of Further Investigation and the Purpose of Investigating a New Charge

[27] In the present application, 'further investigation' and the investigation of a potential new charge were both raised as reasons for the adjournment request. As will be explained, the purpose of 'further investigation', standing alone, is not sufficient to pre-empt the right to the prompt determination of bail and the purpose of investigating a potential new charge cannot constitute lawful grounds for an adjournment pursuant to s. 516(1).

[28] The moment an individual is arrested and charged with an offence, his or her constitutional entitlement to bail (s. 11(e)) and the bail provisions of the Criminal Code are engaged with respect to the offence charged. The right to a prompt determination of bail is also engaged. Following an arrest, police are certainly free to continue to investigate and to gather evidence for the purpose of trial or otherwise. However, it is important to note that 'police investigation' is not one of the three named grounds that can justify pre-trial detention pursuant to s. 515(10). With respect to s. 516(1) in particular—as already discussed, a reason to adjourn advanced by the Crown must be related and relevant to the determination of the bail proceedings for a charge before the court.

[29] In my view, where the Crown applies for an adjournment for the purpose of 'further investigation', it must show how that 'further investigation' is related to an issue relevant to the determination of bail with respect to a charge before the court, as well as why such an investigation should pre-empt the accused person's right to a prompt determination of his or her bail. The statement 'further investigation', standing alone, is simply too general, imprecise and open-ended to serve as a sufficient reason to deny the right to the prompt determination of bail.

[30] To adjourn a bail hearing for the purpose of investigating a potential new charge is to detain an individual for something that may or may not happen. It involves the use of s. 516(1) as the statutory authority to detain a person for the investigation of an offence for which the reasonable grounds for arrest have yet to be established. From another viewpoint, it invites a double impact on the rights of the individual. First, it raises the issue of the use of an extraneous purpose to bail, a potential charge, to deny the right to the prompt determination of bail on a current charge. Second, it raises the issue of investigative detention—the imprisonment of a person while police investigate if there are sufficient grounds to charge and/or arrest.

[31] These two problems raise obvious concerns with respect to compliance with s. 11(e), s. 7 and s. 9 of the Charter. In R. v. N.M., [2005] O.J. No. 3296 (ONCJ), Cohen J. considered the use of s. 516(1) in the context of the investigation of an offence and concluded as follows, at para. 13:

¶ 13 In my view, the Crown, through its application under section 516, invited the Justice of the Peace to participate in an investigative detention. Such a detention is unlawful. Canadian jurisprudence recognizes a police power to briefly detain for investigative purposes. The power is rigorously circumscribed, and a detention for investigative purposes is subject to Charter scrutiny (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49). However, with the possible exception of national security investigations, there is no authority in Canadian law to incarcerate a person solely for purposes of criminal investigation. A detention for such a purpose is therefore arbitrary within the meaning of section 9 of the Charter. Since the effect of the detention was to deny the accused his right to have the question of his right to bail determined, without just cause, the detention also resulted in a breach of the accused's rights under section 11(e) of the Charter. This being the case, it is also apparent that the liberty and security of the person interests of the accused have also been adversely affected.

The analysis and conclusions in R. v. N.M. are highly persuasive and, in my view, they must guide and inform the exercise of my duty to always act in a Charter-compliant manner when applying my judicial discretion to grant or deny an adjournment application pursuant to s. 516(1).

[32] Furthermore, I am of the view that s. 516(1) read in its entire context and its grammatical and ordinary sense does not provide the authority to adjourn a bail hearing for the purpose of investigating a potential new charge. Such an investigation would constitute a purpose extraneous to the determination of bail. This conclusion is revealed by the following analysis.

[33] The investigation of a potential new charge does not attract the scrutiny of s. 11(e) of the Charter because s. 11 only comes into play once a person is charged with an offence. The provisions of s. 515 of the Criminal Code do not apply to the investigation of a potential new charge because s. 515(1) limits the section's application to "…where an accused who is charged with an offence…" and limits the scope of any order to "… the order shall refer only to the particular offence for which the accused was taken before the justice." Finally, s. 516(1) does not apply to the investigation of a potential charge because the judicial authority to grant an adjournment is limited to "…any proceedings under section 515…" and the provisions of s. 515 do not apply to such an investigation.

[34] The investigation of a potential charge is simply not a bail matter and s. 516(1) cannot be lawfully drafted into the service of police investigations or any other non-bail matters. For these reasons, including the analysis and conclusions in R. v. N.M., the investigation of a potential new charge cannot constitute lawful grounds for an adjournment pursuant to s. 516(1).

Application of the Legal Principles to the Case of J.M.

[35] The Crown applied for an adjournment of the bail hearing from Wednesday, July 13, 2016, to Friday, July 15, 2016. J.M. is thirty-five years of age, does not have a criminal record, but he faces serious charges. His parents were present at court and he was ready for his bail hearing. From his perspective, the adjournment request would have represented two additional nights in jail for a total of three nights in jail waiting for his bail hearing.

Evidence of the Child and the Children's Aid Worker

[36] The first purpose for the adjournment request was to interview and obtain evidence from J.M.'s child, as well as a Children's Aid worker, who would have interviewed the child. Two types of evidence were sought from the child: evidence of what the child would have witnessed, in this case what would have been heard, with respect to the allegations before the court; and evidence that the child would have been assaulted by J.M. At the time of the Crown application, J.M. had not been charged for an assault against the child.

[37] I agree with the Crown that the child's evidence as a witness to the charges before the court would have relevance to the determination of bail, including the strength of the Crown's case. The bail provisions of the Criminal Code (s. 518(1)(c)(iv)) and the case law are clear that the strength of the Crown's case is one among the many relevant factors in the determination of bail. The question is whether, in the circumstances of this case and this accused person, obtaining the child's evidence is a sufficient reason to grant the adjournment and pre-empt J.M.'s right to his bail hearing on July 13, 2016.

[38] In this particular case, the Crown advised the court that there was some uncertainty as to whether the child's evidence would strengthen or weaken the Crown's case. A weakened Crown case could benefit the accused person. In addition, the Crown had access to the evidence of the complainant that would speak to both the seriousness of the allegations and to the strength of the Crown's case. There are three sources of the complainant's evidence: the information the complainant provided to police that established the grounds to arrest J.M. on July 12, 2016; the subsequent 'KGB' statement the complainant provided to police on July 12, 2016; and the information the complainant provided to the police officer assigned to the Safe Bail Program. In submissions, there was no indication that the evidence of the complainant could not be adduced or received by way of the flexible rules of evidence at bail.

[39] In these circumstances, after weighing and balancing the applicable legal principles and competing interests, I concluded that the purpose of interviewing the child, to learn what the child would have heard, was not sufficient to deny J.M. his right to his bail hearing on July 13, 2016.

[40] As I have already explained, the investigation of a potential new charge cannot constitute lawful grounds to adjourn bail proceedings pursuant to s. 516(1). Therefore, J.M.'s bail hearing could not be adjourned to permit the investigation of a new charge of assault involving the child.

[41] The purpose of interviewing and obtaining evidence from the Children's Aid worker was also not a sufficient reason to adjourn J.M.'s bail hearing. Given that I was declining to adjourn the bail hearing for the purpose of interviewing the child, I could not, without more information from the Crown, find there to be sufficient reason to adjourn the bail hearing for the purpose of obtaining evidence from the worker who had interviewed the child. I did not have enough information before me to conclude that the evidence of the worker would be significantly different from that of the child or the police investigators. It was also unclear how much of the worker's evidence would be related to the investigation of the potential new charge of an assault involving the child, which could not support an adjournment pursuant to s. 516(1).

Evidence from Other Investigations

[42] The second purpose advanced by the Crown was that the adjournment would permit police to conduct other investigations they would deem appropriate, which could include interviews of other persons. In my view, this reason, as framed, used different words, but it was, in effect, an adjournment request for the general purpose of 'further investigation'. There was insufficient information before me about these investigations and the persons to be interviewed as well as insufficient information as to how the investigations and interviews would be related or relevant to the determination of bail on the current charges. As I have explained, the purpose of 'further investigation', is not sufficient in itself, to pre-empt the right to the prompt determination of bail. Therefore, this second purpose was not sufficient to pre-empt J.M.'s right to his bail hearing on July 13, 2016.

Disposition

[43] The Crown application for adjournment pursuant to s. 516(1) was denied.

[44] I wish to thank Crown and Defence counsel for their professionalism and submissions in this application.

Released: July 28, 2016

Justice of the Peace J. Gary McMahon