An accused is permitted to adjourn the bail hearing indefinitely, until he or she is ready to exercise that right.

R. v. Hudson, 2011 ONSC 5176 is a strong statement for the proposition an accused need neither consent to a detention order nor run a bail hearing in order to proceed with the case. Based on Hudson an accused is permitted to adjourn the bail hearing indefinitely, until he or she is ready to exercise that right. The Court holds:

b) The Present Practice: Its Origins and Propriety

[10] As things presently stand in Toronto, subject to routine requests for short adjournments under s. 516 of the Criminal Code, an accused person is expected to either have a bail hearing under s. 515 or consent to his or her detention. Unless it is for a short period of time, an accused is generally not permitted to adjourn the bail hearing indefinitely, until he or she is ready to exercise that right. Hence the requirement for accused persons to consent to their detention if they do not wish to move forward at that point. Why is an accused person not permitted to simply postpone exercising his or her right to a bail hearing until a more advantageous time instead of being forced to agree to a detention order that can only be set aside by the Superior Court?

[11] On the surface, this would appear to be a straightforward matter with a clear answer. But when it comes to questioning matters of procedure and local administrative practices in the courts, one is often confronted with the apparently self-explanatory answer: "This is how it has always been done." And that is the case here. Interestingly, it is not done the same way in many other parts of this province. So, why is it done in Toronto?

[12] There would appear to be systemic pressures in place that encourage the present procedure. In Toronto, it seems that, for organizational purposes, the Crown's office is not prepared to provide disclosure until a case has "cleared" or passed through the bail stage of the proceedings. This is not to say that proper disclosure for bail purposes is being withheld. It means that the procedure for assembling, collecting and organizing disclosure materials for trial will not commence until the accused person has passed through the bail process and is either released or detained (by consent or otherwise). But there is no justification for delaying otherwise available disclosure until an accused person has cleared the first-level bail hearing stage. The right to bail (s. 11(e) of the Charter) and the right to Crown disclosure (s. 7 of the Charter) operate independently of each other. Timely disclosure is an integral right in the criminal process that clearly trumps other organizational practices put in place by the Crown: see R. v. Stinchcombe (1992), 68 C.C.C. (3d) 1 (S.C.C.) and the discussion in Don Stuart, Charter Justice in Canadian Criminal Law (Scarborough, Ont.: Carswell, 2010), at pp. 185-192. While the Crown controls the timing of disclosure to a certain degree, it was not demonstrated to me that an accused is not entitled to disclosure because he or she has yet to pass through bail court in a manner that is satisfactory to the Crown. More importantly for present purposes, this organizational convenience is not a proper basis upon which to require an accused person to consent to his or her detention.

[13] It would also appear that, in Toronto, an accused person is not permitted to set a date for his or her trial (or preliminary inquiry) before the bail issue yields a result of release or detention.[Note:6] Setting timely trial dates, for a court as busy as the Ontario Court of Justice, is a complicated matter. Quite rightly, accused persons detained in custody are given priority when it comes to setting trial or preliminary inquiry dates. This is based on the goal of mitigating the hardship of pre-trial custody. As the Crown submits, before a so-called "in custody" trial date is set, the system needs to know whether the accused will be in custody by the time of trial or whether he or she will be on release. As with disclosure, for scheduling purposes, the system is confounded by someone who is in "bail limbo." The system does not know what stream to put such a person into: custody or out of custody. The Crown submits that, if an accused person waives his or her bail hearing and gets an in custody date, only to successfully apply for bail later, he or she wreaks havoc with the "in custody" trial date allotment. As the argument goes, that person unfairly benefits from an earlier trial date, one that should be assigned to someone who is in pre-trial custody at the time of trial. For this reason, in Toronto at least, there is pressure on an accused person who is not ready for a bail hearing to consent to his or her detention so that effective court scheduling may proceed.

[14] While giving priority to in custody accused is obviously a very important objective of any rational approach to criminal trial scheduling, I am not persuaded that it justifies the present practice of insisting on consent detentions when an accused person is not ready for a bail hearing. The laudable goal of effective trial scheduling may be achieved without insisting on consent detention orders. In any event, the same problem (from the Crown's perspective) will occur in the case of an accused person who is detained in custody after a contested bail hearing (and who obtains an in custody trial date), only to be released down the road after a review under ss. 520, 523 or 525 of the Criminal Code. Indeed, the same problem is likely to occur in circumstances where an accused who consents to his or her detention is released after a bail "review" under s. 520 of the Criminal Code.

[15] This seemingly technical issue should also be considered from a broader, constitutional perspective. Like all legal rights under the Charter, the right to reasonable bail in s. 11(e) of the Charter is one that belongs to an accused person. An accused person is not required to immediately and simultaneously pursue all of his or her rights. For instance, the right to a jury trial may not be invoked at all, or it may be invoked later on in the proceedings (if in compliance with the re-election provisions of the Criminal Code). Similarly, an accused may waive the benefits inherent in the right to counsel at various junctures of the process, just as anyone is free to abandon their privacy interests for the purposes of s. 8 of the Charter.

[16] Returning to bail, as far as I can tell, there is no corresponding right of the Crown to obtain a detention order if the accused person does not wish to immediately exercise his or her rights under s. 11(e). Again, s. 11(e) confers a personal right on the accused person. Only he or she can decide if and when to apply for bail.

[17] Part XVI of the Criminal Code was originally designed to provide accused persons with speedy access to the court process for the purposes of a bail determination. This is because of the well-known hardships associated with pre-trial detention: see R. v. Wust (2000), 143 C.C.C. (3d) 129 (S.C.C.), at p. 148. For example, s. 503 places strict obligations on the police to bring a detained person before a justice of the peace: see R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.) and Toronto Newspapers Ltd. v. Canada (Attorney General) (2010), 255 C.C.C. (3d) 473 (S.C.C.).

[18] Similarly, s. 516 of the Criminal Code places limitations on how long a bail hearing may be adjourned. Without the consent of the accused, the outside marker is "three clear days." The failure to meet this reasonable threshold has been well litigated under the Charter: see, most recently, R. v. Zarinchang (2010), 254 C.C.C. (3d) 133 (Ont. C.A.), R. v. Rashid (2010), 259 C.C.C. (3d) 289 (Ont. C.A.) and R. v. Ward, 2011 ONCA 267. However, Part XVI was never designed to force an accused person into a hearing on such an important issue at an ill-advised or inopportune time. Section 516 places strict, constitutionally guarded limitations on how long the Crown may seek to delay or postpone a bail hearing. But there is no corresponding limitation on how long an accused person may delay exercising his or her right to apply for bail. This was recognized over 30 years ago in R. v. Adams (1978), 45 C.C.C. (2d) 459 (B.C.C.A.), in which Seaton J.A. said at p. 464: "[T]he key to the adjourning provisions is that the accused is put in control. Only he can consent to a long adjournment. The Crown cannot prevent such an adjournment…" I agree with this statement.

[19] There are many legitimate reasons why an accused person may not wish to avail himself or herself of the right to a bail hearing. In the unexpected chaos that often descends on an accused's life after being charged, there may be no viable plan of release to put forward. This situation may not be rectified even after a number of adjournments. It may take some time to construct a release plan. Moreover, an accused person may have outstanding charges or already be subject to a sentence, making a successful bail application unlikely. For various reasons, an accused person may not wish to seek bail immediately, or even in the near future. And there is nothing wrong with this. There is no competing constitutional principle that requires the accused to seek release within a time frame set by the Crown. Similarly, and stemming from this, there is no justification for requiring an accused person to waive his or her rights under s. 11(e) of the Charter in order to suit the scheduling exigencies of the trial court. The same goals can be achieved in a different manner, one that better respects the right to bail.

c) A Proposed Approach

[20] When an accused person appears in court and is not prepared to embark upon a bail hearing within a specified time frame, he or she should not be faced with the prospect of having to consent to detention in order to facilitate moving the case along (in terms of disclosure and scheduling). Once in place, it takes some time and effort to set aside a detention order. Success is far from guaranteed. In these circumstances, the justice of the peace or judge should adjourn the hearing sine die and allow the accused's case to move forward in the normal course. If, in the future, the accused person wishes to have a bail hearing, he or she may serve notice on the Crown and the Court, requesting that the case be brought forward for this purpose, much like when matters are brought forward for the purposes of a guilty plea. In the meantime, the accused person is entitled to disclosure and to set a date for trial (or a preliminary inquiry) in the normal course.