“Lock Them Up! Lock Them Up!”:  Is the Tertiary Ground Under Canadian Law Fundamentally Unjust?

It has been one-and-a-half years since the Supreme Court of Canada released R. v. St-Cloud, perhaps breathing renewed life into the tertiary ground for detention under Section 515(10) of the Criminal Code of Canada.

We say perhaps breathing new life into the tertiary ground because, arguably, St-Cloud does not purport to increase the frequency that courts ought to detain based on the tertiary ground, but simply asks courts not to forget that it exists as an option.

The specifics of St-Cloud and its application deserve a close examination and critical analysis.  But for a moment let us take a step back and see the forest for the trees: how comfortable are we with the very notion of the tertiary ground at all?  How comfortable are we that mere public perception can be determinative in deciding whether or not an accused is detained in custody awaiting the opportunity to make full answer and defence?

Let’s start with the basics.  When somebody is arrested and charged with a criminal offence, one of two things can happen: they can be released into the community on conditions, one of which will always be to come back to court and answer to the charges; or, if necessary, they will be kept in jail until their charges are dealt with.  There are three reasons (or “grounds”) for which a person may be detained.  We call these the primary, secondary and tertiary grounds for detention.  Let’s very briefly explore the rationale behind each.

The primary ground is concerned with the necessity to ensure the accused person attends court to be dealt with according to law.  That makes sense, doesn’t it?  If a Judge or Justice of the Peace believes you must be detained as the only means to reasonably ensure you will not flee and escape prosecution, then your detention is justified.

The secondary ground is concerned with the protection of the public: if there is a substantial likelihood that an accused – if released – will commit a criminal offence or interfere with the administration of justice such that the public is endangered, that person should be detained pending the disposition of his charges.  Again: makes sense.  (The ways in which the secondary ground is interpreted and the practical reality that people are often detained based on unfounded or overstated fears on this ground is subject for another discussion.)  Suffice it to say that the ground, in theory, is sound: it certainly justifies detention in some cases.

Preventing abstention and ensuring public safety are legitimate functions of state power and if a learned justice properly assesses the risk of each, the value of these functions can be measured against the rights of the accused.

Then there is the tertiary ground, which holds that an accused may be detained “if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances including: the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances of the commission of the offence, including whether a firearm was used, and the fact that the accused is liable to, on conviction, a lengthy term of imprisonment…” [Criminal Code, S. 515(10)(c)]

So, to review, there are three reasons that, according to legislation, a person accused of an offence, but presumed innocent, may be nonetheless jailed while awaiting trial: (i) if it is necessary to ensure they do not flee justice, (ii) if it necessary to ensure the safety of the public, or (iii) because “crime is bad and criminals are bad and guns are bad and not putting somebody in jail right now if they may have done something bad makes me feel icky and we can’t wait to find out if they did it or not, because I’d never commit a crime and I want it now”.

Now, to be clear, the law properly applied does not attempt to consider the base emotions of the least informed or least sympathetic of our citizenry, as portrayed –facetiously – above.  The Ontario Court of Appeal in R. v. E.M.W. tells courts to consider “the ordinary, reasonable, fair-minded members of society,” those informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.

Absolutely fundamental to this is an understanding of and appreciation for the Presumption of Innocence, and the constitutional Right to Reasonable Bail.  No person can be considered informed as to the rights or principles of our justice system without holding these fundamental cornerstones dear.  This is the “member of the public” with whom the tertiary ground concerns itself.

Now let us remember, in practical terms, we are imagining scenarios in which an accused person is denied bail based on the tertiary ground alone.  That is, we are only concerned with this ground when the person is not already being detained based on the primary or secondary ground.  This means we are discussing the case of an offence and an accused who is demonstrably unlikely to flee, not substantially likely to commit an offence, interfere with the administration of justice, or endanger the public.  So we ask:  What reasonable and fair-minded member of society, learned of the legislation and the fundamentals behind it would say: “despite the lack of substantial risk to anyone or anything, I don’t like this … lock him up”?  Such a member of society is either misinformed about the facts or misunderstands the law of Judicial Interim Release.  Such a citizen does not meet the standard set out in E.M.W. and his view ought not to be considered.

It therefore requires an error in logic to detain on the tertiary ground alone.  Consider this in practice:  The presiding justice undertakes an analysis on the tertiary ground, having found neither of the other two grounds to justify detention.  To detain on the tertiary ground, she must imagine the “reasonable and informed member of society” to be so in favour of detention that he would lose his confidence in the administration of justice if detention was not ordered.

But on what basis does he – the citizen – find release offensive, or even improper?  Unless we presume that this “reasonable and informed member of society” has better judgment than the presiding justice (with respect to primary and secondary grounds), the citizen would – like the judge – agree that neither primary nor secondary grounds justify detention.  And on what basis other than primary and secondary ground analyses does the imagined citizen base his opinion as to releasability?  It would demonstrate circular logic to say the imagined citizen himself relies on the tertiary ground.  His own opinion would necessarily accord with that of the presiding justice with respect to the primary and secondary ground: he is not offended by release, and so detention on the tertiary ground alone is impossible.

(Now, even if somehow we wanted to presume that this “reasonable member of society” has better judgment with respect to primary and secondary grounds than the presiding justice, this leads us to another logical dead-end.  We would require that the justice recognize her own misjudgment partway through her decision: she would have rule the accused releasable on primary and secondary grounds, then self-appeal, prefer the superior judgment of the imagined “reasonable citizen”, and overrule her own primary and secondary ground findings.  What could make her recognize the error of her ways in the middle of her judgment? It is logically absurd.)

One may counter that Section 515(10)(c) does not ask the court to consider views of the “reasonable member of society” with respect to the primary and secondary grounds, but as to something else.  But what, then?  It would have to be some emotional or irrational fear, or some “fourth” ground of detention that does not exist.  This cannot be, or at the very least cannot be justified.  An informed and reasonable citizen learned in the law and cognizant of the fundamentals behind the legislation would be familiar with Section 515(10).  Parliament did not dream up a fourth ground for detention based on fundamental principles, so what “learned member of society” can supplant that?  There is no fourth ground that justifies detention.  If the presiding justice finds there is no justification for detention under the primary or secondary ground – and the reasonable and informed citizen would agree, there is no possibility for detention on the tertiary ground.

Let us leave aside for a moment the above argument that the scheme behind the tertiary ground lacks internal logic.  Let us presume that the court is somehow able to consider some abstract way in which a fair-minded member of society can be offended by release despite the absence of primary or secondary ground-justification for detention.

Let us turn to another fundamental issue.  Since the tertiary ground rests entirely on ensuring we maintain the public’s confidence in the administration of justice, let us explore this notion – this confidence that is so precious to our courts that we would jail an otherwise releasable accused just to preserve it.

But in exploring this notion with respect to the tertiary ground law, we find another failure of logic.  Ironically, invoking the tertiary ground requires a justice to presume the public fundamentally lacks confidence in the justice system to begin with!  If a member of the public has confidence in the justice system, he or she will say: this accused poses no threat and no danger while awaiting trial, I trust the presiding justice to make that determination, and I trust that if the accused is guilty he will be found guilty and sentenced appropriately … if he is not guilty, there is even less reason to detain him for the time being.

And here is the logical failing of the scheme that aims only to “preserve public confidence” in our system:  It is only a lack of confidence in the system in the first place that could cause a member of the public to prefer detention despite the absence of primary or secondary ground concerns.  It requires a member of the public who worries that our Judges and Justices of the Peace routinely misjudge primary and secondary ground concerns.  Or that the accused is probably guilty, but our system will fail and he will be acquitted, and at least he should be in jail until that happens.  Or, perhaps, that the fundamental principle of presumption of innocence at the heart of our system of justice is misguided, and that the accused should start his sentence now.

And disturbingly, it may be this last concern that is most prevalent: that the presumption of innocence should be taken with a grain of salt.  Why else would the strength of the prosecution matter?  Why else would the likelihood of a long sentence matter?  Why else would it matter if the crime is serious or if a firearm was used?  All these things may affect the primary or secondary ground concerns, but we are here because the justice found they did not justify detention on those bases.  So what are we left with?  We are left with a public (or the perception of a public) who is just not comfortable with the idea that a person who is likely guilty, who will probably end up in jail anyhow, and whose presumption of innocence is being taken just a little too literally should get the benefit of that fundamental principle, that pillar of our criminal justice system.

Well, we’d better drag him off to jail then … we wouldn’t want the public to lose all that precious confidence in our system of justice.