Nunavut court to hear arguments on need for recurrent pre-trial detention reviews

Lawyers in Nunavut are raising questions about 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.

These detention reviews are held in the form of a hearing before a judge, and arguments are brought forward as to whether the accused should remain in custody.

In a 2019 Supreme Court of Canada decision, R. v. Myers, the court unanimously ruled that these detention reviews are automatic after 90 days. That means the jail or the prosecutor must apply for a hearing 90 days after the last order to put someone in custody. The judge then has to schedule a hearing as soon as possible.

“The purpose of the s. 525 hearing is to prevent accused persons from languishing in pre‑trial custody and to ensure a prompt trial,” the Myers decision states.

Appearing before Justice Paul Bychok on June 18, defence lawyer Mia Manocchio told the court the law was unclear about whether her client, Oolayou Shoo, is eligible for more than one detention review.

Shoo, 25, had a detention review before Justice Susan Charlesworth on March 25, 90 days after he was detained. At that hearing, 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 question is, is Mr. Shoo allowed … a second detention review? The defence is of the opinion that yes,” Manocchio said.

Manocchio and Crown lawyer Gregory Lyndon requested Bychok’s guidance on how to proceed.

“It’s a very important issue and if the Supreme Court of Canada decided to analyze 525 … maybe because it lacks clarity. And if it lacks clarity, therefore I think we have to push the question forward,” Manocchio said.

Although a few other courts in Canada have ruled on this issue, it has never been brought before a court in Nunavut, Manocchio said.

“I must admit I’m also raising this as a member of the Nunavut Bar Association because I want to make sure of how I give advice to my clients and, if you do a detention review, this is your only shot. Make sure you do it correctly,” she added.

Bychok admitted he was surprised to find there was no relevant Nunavut case law, but said he would need to hear arguments and receive written submissions from both lawyers before making a decision.

“I was immediately struck … that there was no Nunavut case,” Bychok said. “This is far too important an issue for the court to wing it.”

“We’ve had the Supreme Court of Canada weigh in on the Myers case and yet here we are, three experienced legal professionals scratching our heads over a very fundamental issue. One might have hoped that Parliament or the Supreme Court of Canada might have solved this for us, and we wouldn’t be wasting time trying to figure out something as basic and essential as what you’ve brought before the court,” Bychok added.

Lyndon also noted that judges across the country have “grappled’ with the issue.

“I found no relevant case law in this jurisdiction, nor have I found any case law anywhere in the country that suggests that this is a revolving window of every 90 days,” Lyndon said.

Lyndon acknowledged that with “heightened concerns about pre-trial custody,” it makes sense to have recurring pre-trial detention reviews, but he said there is no case law to support that argument.

“The experience of pre‑trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence. It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well‑being and on their families, and the loss of their livelihoods. Parliament intended Section 525 to operate as a safeguard,” the Myers decision states.

Judges also have the power to order further reviews or expedite the trial process, Lyndon said.

“The possibility of a further review is anticipated in the legislation. That’s a clear indication that if there was an automatic right and some sort of revolving window … Parliament would have said that explicitly, Lyndon said.

Manocchio said that since March, she and Lyndon have been vetting lists of people in custody who qualify for Section 525 hearings.

“I started practising here in October last year of 2019 and I didn’t hear anything about Myers before March 2020, after COVID. Right after the emergency court order.… That’s when we started getting letters or applications from the jailer for 525s,” she said.

Bychok is scheduled to hear oral arguments on the matter on July 10 at 9:30 a.m.