Detention reviews not recurrent, but can be adjourned, Nunavut judge rules

A Nunavut judge has ruled that mandatory detention reviews are a “one-time systems check” and are not recurrent.

Justice Paul Bychok issued his decision on Friday, July 17, in a case that sets the precedent for how detention reviews are conducted in Nunavut.

Defence lawyer Mia Manocchio and Crown lawyer Gregory Lyndon had raised questions at a June 18 hearing on whether a section of the Criminal Code gives Nunavummiut in custody the right to multiple pre-trial detention reviews.

The Criminal Code of Canada, under Section 525, states that when the trial of a person in pre-trial custody is delayed for a period of more than 90 days, the court will review whether detention is necessary. In a 2019 Supreme Court of Canada decision, R. v. Myers, the court unanimously ruled that detention reviews are automatic after 90 days.

But Bychok said that the Myers decision left some issues unresolved, such as who bears the burden of proof at a detention review, whether a detention review could be adjourned and whether an accused can waive their right to a detention review and then revoke that waiver later on.

The court’s dilemma began in March, when the jail started sending monthly lists of inmates with requests for detention reviews. Since then, Manocchio and Lyndon have been vetting lists of people in custody who qualify for Section 525 hearings.

Bychok received written submissions from both lawyers and heard oral arguments last week.

There are two cases at the centre of the arguments: Oolayou Shoo and Nuyalia Tunnillie.

Shoo, 25, had a detention review before Justice Susan Charlesworth on March 25, 90 days after he was detained. Charlesworth ruled to keep Shoo detained.

The court then received another request from the jail to hold a second detention review for Shoo 90 days later, on June 25. Shoo is still in custody awaiting trial.

The Crown objected to the request, stating Shoo is not entitled to a second detention review hearing.

Tunnillie was arrested in Kinngait on Dec. 10, 2019, and detained. On March 20, Tunnillie waived his right to a detention review. Then, on May 27, the jail sent a request for Tunnillie to have a detention review. The Crown objected to the request, stating Tunnillie had already waived his right to a review.

Both Shoo and Tunnillie listened to Bychok’s ruling over the phone, Shoo from Baffin Correctional Centre and Tunnillie from a federal penitentiary in Ontario.

Parliament revised Section 525 last year as part of its amendment to the Criminal Code through Bill C-75.

“Just what that revised section actually means is at the heart of this decision,” Bychok said.

On the question of onus—or burden of proof in a legal proceeding—Lyndon had argued that there is no onus on either party at a detention review hearing.

Bychok ruled that although Section 525 does not outline an onus, the onus lies with the same party “that had the onus at the hearing that resulted in the original detention order” or who would have had the onus at a bail hearing.

“In my experience, the presence of an onus tends to focus counsel on what is really relevant to the case,” Bychok said.

“This issue has not been considered before in Nunavut and I must try to resolve it.… It would be preferable for Parliament to decide this issue after proper study in committee and … Parliamentary debate,” Bychok said.

On the question of recurrent detention reviews, Bychok also noted both Myers and the legislation itself do not explicitly state that detention reviews are recurrent.

“I must not guess or speculate whether this absence of an ongoing detention review mechanism may have been a parliamentary oversight,” Bychok said.

On the question of adjournments, Bychok ruled that an accused does have a right to adjourn a detention review, but adjournments should be brief.

“It appears only logical that any adjournment ought to be reasonably short so as not to undermine the purpose of a timely detention review process.”

On the final question, Bychok ruled that if an accused waives their right to a detention review, that waiver cannot be revoked.

Bychok’s ruling means Tunnillie’s waiver of his right to a detention review is “irrevocable.”

“Parliament intended Section 525 to act as an early safety net to ensure that an accused subject to pre-trial detention does not fall through the cracks,” Bychok said. “In most cases, Section 525 acts as a one-time systems check to ensure that an accused’s case is moving along.”

An accused can still apply to have their bail reviewed at any time before trial under Section 520 of the Criminal Code, Bychok noted.

“Mr. Tunnillie has not fallen through the cracks and he will not languish in pre-trial custody because of this decision,” Bychok said.

R v Tunnillie, 2020 NUCJ 26 by NunatsiaqNews on Scribd