Judge’s ruling could set Nunavut precedent on detention reviews

Lawyers in Iqaluit presented arguments last Friday in a case that could set a territorial precedent for the way detention reviews work.

Defence lawyer Mia Manocchio and Crown lawyer Gregory Lyndon spoke for about four hours in front of Justice Paul Bychok on questions raised 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, according to Manocchio, it’s unclear if these detention reviews are successive, meaning they happen every 90 days.

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

When asked for comment, Nunavut’s Justice Department said it’s waiting for direction from the courts.

“In the absence of clear direction from the court on subsequent 525 applications, the Nunavut Corrections Divisions has erred of the side of doing what is best for the accused under our care. Therefore Corrections has been, on its own initiative, making a subsequent application every 90 days on behalf of inmates who are in pre-trial detention,” Stephen Mansell, Nunavut’s deputy minister of justice, said in an email to Nunatsiaq News.

“Pending further direction from the Nunavut Court of Justice on this issue the Corrections Division will continue to bring an application every 90 days to ensure the circumstances of our remanded inmates are reviewed on a regular basis.”

Bychok will rule on several legal issues brought before the court, including whether detention review hearings can be recurrent, if a detention review hearing can be adjourned, if an accused can waive his or her right to a detention review and who has the onus in a detention review.

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.

Manocchio told the court that lawyers in Quebec were also questioning whether detention reviews are recurrent, but were waiting for Bychok’s decision.

“We’re the first ones. That’s why I feel so much pressure, sir. We’re the first ones discussing this,” Manocchio said.

In 2018, then justice minister Jody Wilson-Raybould introduced the Bill C-75, which intended to reduce delays in criminal proceedings.

“The Bill would amend the provisions for mandatory judicial reviews of pre-trial detention orders, so that these reviews must occur every 90 days for all accused persons,” Wilson-Raybould stated in a Charter statement on the bill.

“Parliament’s intention was for detention reviews to be heard on a recurrent basis by the courts,” Manocchio wrote in her written submissions to Bychok, citing Wilson-Raybould’s statement.

But Lyndon disagreed, saying Wilson-Raybould’s Charter statement didn’t become part of the final bill.

“The silence of Parliament … is very telling. If Parliament had wanted to provide for successive hearings it could have easily written this into the section explicitly, but it did not do so,” Lyndon wrote in his submissions.

On the question of adjournments, Manocchio said judicial adjournments should be used exceptionally, but they can be useful “to afford time for when the detention of the accused can’t be meaningfully assessed.”

Lyndon argued that adjournments should be rare and are “not best practice.”

Manocchio argued that an accused can waive his or her right to a detention review and can still request a detention review later on.

“There is no principle or practical reason to force an accused person to have a review hearing at a time where they may not be fully prepared. This would result in a waste of court resources and further clogging of the system. Those who require more time to fully prepare should not be punished,” Manocchio wrote.

Lyndon argued that by an accused waiving their right to a review, they end the matter.

“Section 525 is drafted with a clear indication that the process is finite,” Lyndon wrote.

Bychok is scheduled to issue a decision on Friday, July 17, at 9:30 a.m.

“You’ve both been very helpful,” Bychok told Manocchio and Lyndon. “I really do appreciate the effort you’ve both made to deal with these complicated issues.”