Thursday, February 7, 2013

The tertiary ground is only rarely to be used to refuse bail

R. v. Teemotee, 2011 NUCJ 17 considers the tertiary ground for refusing judicial interim release

Section 515(10)(c) of the Criminal Code provides that a person may be detained in custody pending trial if it is determined that "detention is necessary to maintain confidence in the administration of justice."  The Court must consider

(c)        If the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i)         The apparent strength of the prosecution’s case,
(ii)        The gravity of the offence,
(iii)       The circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv)       The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

The Court holds:

25        In considering whether to detain an accused on the tertiary ground, the Court must consider all of the circumstances of the offence, including those specifically set out in the Code.

26        As stated by Justice Vertes in R. v. Caisse, 2004 NWTSC 27 (N.W.T. S.C.) at para 6, [2004] N.W.T.J. No. 30 (N.W.T. S.C.):

But it is not simply a question of finding that the Crown has a strong case, that the offence charged is extremely grave, and that a potentially lengthy term of imprisonment is likely. More is required. The Criminal Code poses as the ultimate question whether, in a case such as this, in all of the circumstances, detention is necessary to maintain confidence in the administration of justice.

27        The Court must be mindful that there are no categories of offences for which bail is not available. In most cases the case for the Crown will, at the early stages, appear overwhelming. Most offences of violence which lead to contested bail hearings will have the potential for lengthy periods of imprisonment.

28        The tertiary ground must be considered and applied through the eyes of a reasonable person, informed of the facts and knowledgeable in the principles underlying our bail provisions.

29        It is generally recognized that the tertiary ground will rarely be the sole justification for detention — that it is reserved for those extraordinary cases where detention is necessary despite the fact that the accused is not a flight risk and is not likely to commit further offences.


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