After reading the Supreme Court of Canada’s decision in St-Cloud, I was instantly transported back to the heady days of the early nineties: where multifarious decisions produced more questions than answers but left the reader with the comforting feeling that somehow the Charter was above the fray. In those mixed-bag decisions there was the satisfaction that the Charter did make a difference and was shaping the new-look Canadian society. However, this nostalgic wave of emotion was not a “remembrance of things past” but was a physical time travel to the days of Morales, wherein the Supreme Court found the secondary “public interest” ground for justifying detention under the then s. 515 of no force and effect as it violated s. 11(e) of the Charter.
Now, let’s be clear, I agree that the 1990’s version of the grounds justifying detention under the Code is very different than today’s read. However, Justice Wagner’s decision applies a broad brush to those differences resulting in a tertiary ground which looks, feels, and acts like the old version.
In Morales and the companion case Pearson, Chief Justice Lamer unpacked the meaning of “public interest” as a judicial tool to justify the denial of bail. This justification was important to articulate, as the granting of bail was the default position under the section. Similarly, “reasonable” bail was guaranteed under s. 11(e) of the Charter. The meaning of “public interest” was therefore an important indicator of whether or not the law was properly mirroring this Charter right. In order to give meaning to a right, all courts should be in agreement with that meaning or the right is no longer an equitable claim. If “public interest” could not be crystallized and articulable then it would be of no assistance in grounding a denial of bail. This did not mean that there must be a precise definition but an articulable one. Throughout this discussion, Chief Justice Lamer reiterated the “golden thread” by which the court was guided in viewing the matter – the “golden thread” of the presumption of innocence.
Under this 1990’s microscope, the court was unable to find a consensus on the meaning of “public interest” resulting in a “vague and imprecise” basis for detention, which was contrary to fundamental principles of justice such as the principle of legality as delineated in the SCC case of Lohnes rendered a few months earlier. Upon a thorough sweep of authorities, Lamer C. J. found the term “public interest” was “open-ended” and failed to provide a structure for legal debate. With such a deficient yardstick, the ground could not be saved under s. 1.
It seems pretty clear from this decision that “public interest” is an unusable phrase from the past, except for this telling line from the Morales decision:
“As currently defined by the courts, the term "public interest" is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.” (Emphasis added)
Now, flash-forward to the St-Cloud decision and Justice Wagner’s valiant attempts to define “public confidence” seems to make short shrift of the Morales decision. To be sure the 2015 Court is working with a differently worded section and the issue is “public confidence” in the administration of justice and not “public interest” but what is “public confidence” now can be “public interest” then. Although Justice Wagner is very careful to couch the meaning in Charter correct terms and is mindful of the unique connection release from custody has to our fundamental concepts of the presumption of innocence and burden of proof, the fact remains that these core principles are now bound by the public interest, albeit tempered by the concept of Canada’s nom de plume, “reasonableness.”
This case raises many questions. Not just questions of applicability and not just questions of how this decision will look like in the realities of bail court but fundamental questions such as: is the law looking backward instead of forward by essentially reviving the public interest as a controlling feature of bail? And if so, how does the public interest reside within our fundamental principles, which tend to the individual as opposed to the collective, such as the presumption of innocence as the “golden thread” that appears throughout our notion of criminal law? These hard questions must be asked if we are to move into the future and beyond.