Provincial Practice Advisory – 90 day Detention Reviews s. 525 Criminal Code

IMPORTANT NOTICE

This notice has been superseded by Chief Justice Morawetz. Please see the Notices and Orders tab and for current information.

Effective: June 3, 2019

Purpose: To notify Crown counsel, members of the criminal bar, court staff, trial coordinators and corrections of their obligations to the Court pursuant to s. 525 of the Criminal Code and R. v. Myers, 2019 SCC 18.  

Responsibilities

  1. It is the responsibility of the correctional facility to notify the SCJ when an inmate is eligible for a 90[1] day review pursuant to s. 525 as interpreted in Myers.[2]
  2. When the 90 day eligibility period is reached, the correctional facility must notify and bring a s. 525 application to the SCJ. The correctional facility will notify the SCJ trial coordinator and SCJ court administration.[3]
  3. Corrections is to notify the SCJ sufficiently in advance of the 90 day eligibility period to enable the Court and trial coordinator to arrange for notification of counsel and to determine next steps in the matter. The point in time for notification in each region will be determined by arrangement with the SCJ judiciary in each region.[4]
  4. Correctional facilities are to notify the SCJ in the location where the case is going to be tried.
  5. Unless directed otherwise by the Court or local practice advisory, SCJ court administration is responsible for:
    1. Inputting the appropriate information into FRANK
    2. Opening a s. 525 file – this should generally include
      • the material submitted to the Court from correctional facility (e.g. OTIS information/s. 525 application)
      • an endorsement page for SCJ presiding judge
    3. Ordering a copy of the information from the OCJ to be available to the SCJ when required as directed by the Judge or by local practice.
    4. CSD (OCJ) must make efforts to expedite making a copy of the information available to SCJ at the requisite time when it is required.

The trial coordinator is responsible for:

  1. Notifying counsel of record in writing of the date of the appearance[5]. Notification may allow for counsel to notify the Court in writing if the accused waives the hearing.
  2. Listing the s. 525 detention review hearing as directed by a judge of the Court, if a hearing is required.
  3. If counsel’s name is not provided by the correctional facility via the warrant of remand or other means, the SCJ must make efforts to identify whether there is a counsel. This may require the trial coordinator to make inquiries of the Crown Attorney’s office or to check the information.
  1. The Crown is expected to assist in identifying counsel.
  2. First appearances on s. 525 reviews may be held by video or in person as is determined by local practice.
  3. If the accused person or counsel acting on the accused person’s behalf does not waive the hearing, it should be scheduled without delay as is reasonable in the all the circumstances.

Record for the hearing

  1. At the first appearance, if a s. 525 hearing is to be scheduled, the SCJ presiding judge may make inquiries into the nature of the hearing and may give direction to the Crown and defence counsel as to their responsibilities for providing a record for the hearing.

Such direction may include:

  • Setting time requirements for the s. 525 hearing
  • Setting timelines for the filing of materials and specifying the materials required
  • Identifying the party responsible for the filing of materials, such as (if applicable):
    • Surety affidavits
    • Transcripts
    • Relevant synopses (current and outstanding charges) and
    • Criminal record of the accused person

Bail transcripts

  1. Where the accused person is represented by counsel, the judge who schedules the 90 day review for hearing should make inquiries about the necessity of having the transcript of any bail hearing and/or previous review hearing, or any part of it available for the 90 day review hearing.

Those inquiries may include:

  • The basis of the 90 day review
  • Any delay that has occurred in moving the case forward and who is responsible for the delay
  • The allegations
  • The existence of a criminal record and/or outstanding charges
  • Whether the bail hearing/previous review proceeded on the basis of Crown or reverse onus
  • Whether evidence was called at the bail hearing/previous review
  • Whether the 90 day review will involve the presentation of a new plan for release, new information, or new sureties
  • Whether the reasons for the detention order will suffice, or whether a full transcript of the bail hearing/review is necessary, and/or
  • Whether the defence will argue that the accused person is at the point of time served.

Should the judge determine that all or part of the transcript is required, the judge may provide direction as to who will be responsible for ordering the transcript and who will cover the cost of the transcript. Where it is in the interests of justice to do so, the transcript cost may be covered by the Court. In those circumstances, the judge will either make arrangements to order the transcript or will direct the Crown to order the transcript with payment to be made by the Court.

Self-represented accused persons

  1. If the accused person is self-represented, and the judge determines that the bail transcript is necessary, the judge may order (or direct the Crown to order) the transcript with payment to be made by the Court.

Heather J. Smith
Chief Justice
Superior Court of Justice (Ontario)|
May 31, 2019

[1] The same procedure applies to 30 day reviews for summary conviction matters.
[2] 90 days since initially brought before a justice in OCJ (s. 503) or detained under s. 524, or since bail review s. 520/521.
[3] Corrections will always advise SCJ trial coordinator and will also advise SCJ court office if requested by SCJ. Additional offices (eg OCJ court office) may be notified by local practice advisory.
[4] The most optimum timing can be determined at the Regional level and by direction of RSJ or designated SCJ judiciary. (eg day 60-65 or day 75)
[5] In some centres, the Crown may be involved in this role.