Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Tunnillie, 2020 NUCJ 26

Date: 20200717
Docket: 03-19-290, 08-20-151
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Nuyalia Tunnillie

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): G. Lyndon

Counsel (Accused): M. Manocchio

Location Heard: Iqaluit, Nunavut

Date Heard: July 10, 2020
Matters: Entitlement to detention reviews pursuant to Criminal Code
of Canada, RSC 1985, c C-46, s. 525

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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Table of Contents

I. INTRODUCTION ........................................................................................................... 3
II. BACKGROUND ............................................................................................................ 4
III. ISSUES ......................................................................................................................... 4
IV. THE LAW .................................................................................................................... 5
A. Statutory interpretation .............................................................................................. 5
B. Criminal Code section 525—mandatory pre-trial detention reviews ........................ 5
C. R v Myers .................................................................................................................... 7
V. THE POSITIONS OF THE PARTIES .......................................................................... 8
A. The Crown.................................................................................................................. 8
B. The Defence ............................................................................................................... 9
VI. ANALYSIS................................................................................................................. 10
A. Does section 525 provide for ongoing detention hearings every 90 days on the same
file? ............................................................................................................................... 10
(i) The Charter Statement ......................................................................................... 10
(ii) The wording of section 525 ................................................................................ 11
(iii) Criminal Code sections 520 and 521 bail reviews............................................. 13
B. Does either party bear an onus of persuasion at the detention review hearing? ...... 14
C. Is an accused entitled to request an adjournment of the section 525 detention
review? .......................................................................................................................... 16
D. Once an accused has waived their right to the section 525 detention review, may
they revoke this waiver later on to have the hearing proceed? ..................................... 17
VII. CONCLUSION ......................................................................................................... 19
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I. INTRODUCTION

[1] This case addresses how the courts are to interpret and apply section
525 of the Criminal Code.1 Section 525 provides for mandatory
detention reviews.

[2] The accused, Nuyalia Tunnillie, has two active files before the Court.
A justice of the peace denied his bail request and he was remanded
into pre-trial custody on the first file. He has consented to his remand
on the second file. On 27 May 2020, the sentence administrator at the
Baffin Correctional Centre (BCC) filed a notice with the Court
triggering a mandatory judicial review of Mr. Tunnillie’s detention. He
did so citing section 525 of the Criminal Code.

[3] Crown and Defence counsel, however, do not agree whether the
accused is, in fact, entitled to the section 525 detention review. This
difference in opinion stems from their different interpretations of the
wording of section 525. The lawyers have asked me to rule on the
correct interpretation of section 525, and whether Mr. Tunnillie is
entitled to a detention review.

[4] The lawyers also have asked me to rule on three other related issues
which remain unclear:

1. Who bears the onus of persuasion at the section 525 detention

review?
2. Is an accused entitled to request an adjournment of the section
525 detention review? and
3. Once an accused has waived their right to the section 525
detention review, may they revoke this waiver later on to have the
hearing proceed?

[5] The legislation does not address these issues, and these issues have
not been decided in Nunavut. I agreed, therefore, to hear submissions
on these issues as they are all relevant to the conduct of this hearing.

[6] Each lawyer filed written submissions for my review, and I heard oral
argument on July 10. I thank counsel for their helpful submissions.
These are my reasons for decision.

1 RSC 1985, c C-46 [Criminal Code].

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II. BACKGROUND

[7] In Nunavut, BCC notifies the Court each month which detained
inmates will be entitled to a section 525 detention review hearing. The
Nunavut Court of Justice has designated days every month to deal
with these mandatory detention reviews. I now will briefly describe Mr.
Tunnillie’s remand situation.

[8] On the first file,2 Mr. Tunnillie was arrested on 10 December 2019 and
was remanded into pre-trial detention after a bail hearing on 12
December. BCC notified the Court on 10 March 2020 that Mr.
Tunnillie was entitled to a section 525 detention review. However, on
20 March 2020, Mr. Tunnillie’s lawyer filed with the Court Mr.
Tunnillie’s express written waiver of his right to the section 525
detention review. The 27 May 2020 notice, then, is the second section
525 detention review notice filed by BCC in relation to Mr. Tunnillie on
this file.

[9] On the second file,3 the charges were sworn on 30 March 2020 while
Mr. Tunnillie was on remand for the first file. On 30 March, an order
for removal was issued requiring Mr. Tunnillie to attend court for his
first appearance on this matter on 16 June 2020. It appears from the
record that the question of bail on this file has not yet been
addressed. Mr. Tunnillie’s 20 March 2020 waiver does not apply to
this second file.

III. ISSUES

[10] There are four issues I must decide.

1. Does section 525 provide for automatic ongoing detention reviews

every 90 days on the same file?
2. Does either party bear an onus of persuasion at the detention
review hearing?
3. Is an accused entitled to request an adjournment of the section
525 detention review?
4. Once an accused has waived their right to the section 525
detention review, may they revoke this waiver later on to have the
hearing proceed?

2 Court file # 03-19-290.

3 Court file # 08-20-151.
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IV. THE LAW

[11] I will now turn to the law which I must apply to this case.

A. Statutory interpretation

[12] Entire books have been written parsing the nuances involved in the
various ways judges try to understand what a particular statute
means. The fundamental role of the interpreting judge is quite clear,
though. I must try to honour the intentions of Parliament.

Today there is only one principle or approach, namely, the words of an

Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of
the Act, and the intention of Parliament.4

[13] In this context, Defence counsel has submitted that I may discern
Parliament’s intention from the contents of a Charter Statement tabled
in the House of Commons by the Justice Minister on second reading
of Bill C-75.5 I will return to this submission in my analysis.

B. Criminal Code section 525—mandatory pre-trial detention reviews

[14] Canada has a national statutory bail system. Parliament has codified
bail and possible pre-trial detention in Part 16 of the Criminal Code.
Section 525 mandates a judicial pre-trial detention review for all
persons who are denied bail. As I just noted, Parliament revised
section 525 along with other parts of the Criminal Code last autumn.
Just what the revised section actually means is at the heart of this
decision. The revised section 525 now in force, subsections (1)-(5),
reads as follows:

525 (1) The person having the custody of an accused — who has been
charged with an offence other than an offence listed in section 469,
who is being detained in custody pending their trial for that offence
and who is not required to be detained in custody in respect of any
other matter — shall apply to a judge having jurisdiction in the place
in which the accused is in custody to fix a date for a hearing to
determine whether or not the accused should be released from custody,
if the trial has not commenced within 90 days from

4 EA Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) cited by Stéphane

Beaulac, Handbook on Statutory Interpretation (Toronto: LexisNexis, 2008) at 33. This statement
of the law was adopted by Wagner CJC in R v Myers, 2019 SCC 18 [Myers] at para 19.
5 Bill C-75 contained amendments to various acts including Criminal Code, supra note 1, s. 525.
 6

(a) the day on which the accused was taken before a justice
under section 503; or

(b) in the case where an order that the accused be detained in

custody has been made under section 521, paragraph
523.1(3)(b)(ii) or section 524, or a decision has been made with
respect to a review under section 520, the later of the day on
which the accused was taken into custody under that order and
the day of the decision.

The person shall make the application immediately after the expiry of
those 90 days.

(1.1) However, the person having the custody of the accused is not
required to make the application if the accused has waived in writing
their right to a hearing and the judge has received the waiver before
the expiry of the 90-day period referred to in subsection (1).

(2) On receiving an application under subsection (1), the judge shall

(a) fix a date for the hearing described in subsection (1) to be

held in the jurisdiction

(i) where the accused is in custody, or

(ii) where the trial is to take place; and

(b) direct that notice of the hearing be given to such persons,

including the prosecutor and the accused, and in such manner as
the judge may specify.

(3) The judge may cancel the hearing if the judge receives the
accused’s waiver before the hearing.

(4) On the hearing described in subsection (1), the judge shall

consider whether the prosecutor or the accused has been responsible
for any delay and, if the judge is concerned that the proceedings are
progressing slowly and that an unreasonable delay may result, the
judge may

(a) give directions for expediting the proceedings; or

(b) require a further hearing under this section within 90 days or

any other period that the judge considers appropriate in the
circumstances.
 7

(5) If, following the hearing, the judge is not satisfied that the
continued detention of the accused in custody is justified within the
meaning of subsection 515(10), the judge shall make a release order
referred to in section 515.

[15] As we have seen in subsection (1), Parliament has specified five

events which trigger a mandatory detention review 90 days after an
accused is denied bail. These triggering events are, in the same order
as contained in section 525:

• where an accused is brought before a justice of the peace after

arrest (section 503);
• where the prosecutor may apply to have the accused’s bail
revoked after having been released (section 521);
• where the court may revoke the accused’s bail if it is satisfied that
the accused failed to attend court as required (section
523.1(3)(b)(ii));
• where the court may revoke the accused’s bail in other
circumstances (section 524); and
• where the court may revoke the accused’s bail after a bail review
(section 520).

[16] Each of these statutorily-specified situations triggers the mandatory

section 525 detention review once 90 days have elapsed from the
triggering bail event.

C. R v Myers

[17] Last year, the Supreme Court of Canada examined at length the then
existing version of section 525 and it outlined what it called “the
correct approach”6 to these detention review hearings. The Court
highlighted that the purpose of section 525 is to prevent an accused
person from “languishing” on remand, and to ensure their prompt
trial.7 As we shall see, Myers assists us to resolve issues one and
three. However, Myers does not address the issues of onus,
adjournment, and waiver.

6 Myers, supra note 4 at para 4.

7 Ibid at para 24.
 8

V. THE POSITIONS OF THE PARTIES

A. The Crown

[18] On issue one, the Crown says that section 525 does not state
expressly that an accused is entitled to ongoing detention reviews
every 90 days. “Parliament’s silence”, he continued, is “very telling”.
He contrasted section 525 to section 520 which does provide for
possible subsequent bail reviews (under other circumstances). The
Crown also contrasted section 525 with the regime in the Immigration
and Refugee Protection Act which is also federal legislation.8 This
latter Act expressly provides for ongoing detention reviews every 30
days. Parliament’s experienced legislative drafters know how to
provide for successive reviews. Parliament did not include such a
regime in section 525. Therefore, the Crown concluded, Mr. Tunnillie
– and any detained accused – is only entitled to one section 525
detention hearing.

[19] The Crown also referred to several cases where courts across
Canada have reached that conclusion.9

[20] On issue two, the Crown submits that there is no onus on either party
at the detention review hearing, citing the Ontario case R v G.F.10
This trial level Ontario case says the section places a statutory
obligation on the judge to make an independent decision whether the
continued custody of the accused is justified. The question of an onus
is thus irrelevant to this independent judicial detention review.

[21] On issue three, the Crown referred to Myers noting, correctly in my

view, that the court focused its discussion on court induced
adjournments, and not those which may be requested by the
Defence. He noted further that the court in Myers recognized the
potential need for adjournments, but that they must be short.

[22] On issue four, the Crown says that the accused is no longer eligible
for a hearing once he has filed an express written waiver. To find
otherwise would open up the possibility of lengthy adjournments
which do not help move cases along to timely resolution.

8 Written Representations of the Crown, filed with the Court on 4 July 2020 at paras 27-29.
9 R v McCallum, 2013 ABQB 175 [McCallum]; R v Oake, 2019 NWTSC 2; R v Ibanez, 2020
BCSC 233; R v Doczi, 2020 BCSC 951; R v Scott, 2020 NBQB 89.
10 R v G.F., 2020 ONSC 3389 [G.F.].
 9

B. The Defence

[23] On issue one, Defence counsel stated that Parliament did, in fact,
intend for section 525 detention reviews to be held every 90 days.
She cited only one authority to justify her submission – a Charter
Statement filed by the Minister of Justice in the House of Commons
on 29 March 2018 relating to Bill C-75.11 The introductory explanation
to the Charter Statement sets out the reasons for tabling such a
document. In the context of this decision, two points stand out:

The Minister of Justice prepares a “Charter Statement” to help inform

the public and Parliamentary debate on a government bill … By
tabling a Charter Statement, [sic] the Minister is sharing some of the
key considerations that informed the review of a bill for consistency
with the Charter.12

[24] Defence counsel acknowledged that section 525 does not expressly
provide for continuing detention reviews. But, she quoted from the
Charter Statement to highlight the following statement:

This 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.13

[25] This is the crux of Defence counsel’s argument.

[26] On issue two, Defence counsel in her written submissions referred to

G.F., but acknowledged the difference judicial approaches on this
issue in the national case law.14 In oral argument, she stated that the
reference to section 515(10)15 in section 525(5) indicates that the
onus falls on whichever party had the onus – or would have had the
onus – at the initial bail hearing.

11 Among many other things, Bill C-75 contained the proposed amendment to section 525 which
was eventually passed by Parliament into law.
12 Charter Statement – Bill C-75: An Act to Amend the Criminal Code, Youth Criminal Justice Act

and other Acts and to make consequential amendments to other Acts at 1. The references to the
Charter refer to the Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act
1982 (UK), 1982, c 11.
13 Defence counsel’s Written Submissions, filed with the Court on 4 July 2020 at 9.
14 Ibid at 10.
15 Section 515(10) of the Criminal Code, supra note 1, outlines the only circumstances which

justify the pre-trial detention of an accused.

 10

[27] On issue three, Defence counsel said it is open to the Court to grant
adjournments of the detention review. In practice, she stated that
judges of this Court have recently adjourned several detention
reviews sine die – or without a fixed return date – when the Defence
has not been ready to put a reasonable bail package forward.

[28] On issue four, Defence counsel stated that an accused ought to be

able to revoke a waiver and to insist on having a detention review.
She noted that waivers in Canadian criminal law are “fluid” meaning
as circumstances change, an accused is free to revoke a previous
waiver.

VI. ANALYSIS

A. Does section 525 provide for ongoing detention hearings every 90

days on the same file?

[29] In my view, the answer to question one is no. An accused is only

entitled to one section 525 detention review 90 days after the last
detention order.

[30] I will first discuss Defence counsel’s submission that the Charter
Statement should persuade me that Parliament intended there to be
ongoing 90-day detention reviews. I shall then discuss the clear
wording of section 525. Lastly, I will consider whether section 525 is
consistent with the remainder of Canada’s statutory bail regime.

(i) The Charter Statement

[31] It is permissible for the Court to consider this document to understand

the context of the issues as well as the policy considerations which
informed the government’s Bill. I acknowledge that the Charter
Statement filed by the Minister of Justice early in 2018 stated that
detention hearings “must occur every 90 days for all accused
persons”. However, I note that the document itself states that it was
intended merely “to help inform” the subsequent Parliamentary debate
on the Bill, and to outline its anticipated compliance with the Charter
of Rights and Freedoms.16 I must be cautious in how much weight I
may place upon it.

16 The Charter, supra note 12.

 11

[32] I conclude that I cannot place any weight upon the document. The
document may have been a statement of ministerial intent at the time
it was tabled, but it bears no relation to the section that Parliament
passed. As the English judge Lord Denning once remarked in a
similar case:

… you cannot look at what the committee [read Minister of Justice]

recommended … for the simple reason that Parliament may, and often
does, decide to do something different to cure the mischief.17

[33] In my view, Parliament did decide to do something different relating to

section 525 from what the Minister seems to have recommended.

(ii) The wording of section 525

[34] The key to understanding section 525 is in the language used by

Parliament.

[35] The wording of section 525 is clear. In layman’s terms, subsection (1)
specifically lists five events which trigger a mandatory detention
review. 90 days after the triggering event, the jailer must notify the
court and the court must then conduct a detention review. The
presiding judge must determine whether the continuing detention of
the accused is justified. The judge must release the accused if their
continued detention cannot be justified. If the judge concludes that the
detention ought to continue, he merely affirms the existing detention
order. In this latter instance, the judicial affirmation of the existing
detention order does not constitute a new detention order, and the
renewal is not another triggering event.

[36] Furthermore, subsection (1) does not call for ongoing 90-day
detention reviews. I must not guess or speculate whether this
absence of an ongoing detention review mechanism may have been a
Parliamentary oversight.

17Cited in Ruth Sullivan, Statutory Interpretation, 3rd ed (Toronto: Irwin Law, 2016) [Sullivan] at
263-264.
 12

[37] I believe a correct reading of Myers supports this view. In the words of
the Chief Justice:

… 90 days following the last detention order against the accused is

simply the point at which Parliament has specified that a judge must
determine whether the continued detention of the accused is justified.18
[emphasis added]

[38] Mr. Tunnillie was brought before a justice of the peace after his arrest
and the justice of the peace denied him bail after a bail hearing on 12
December 2020. The 90-day clock started counting down that day
which led to the March 2020 filing by his jailer of its section 525
notice. That is exactly the scenario outlined in the quote above from
Myers. As it happened, Mr. Tunnillie waived his right to the detention
review, and no new detention order was issued by the Court.

[39] I am further bolstered in my analysis because Parliament elected

specifically to provide for a further discretionary detention review in
cases where the judge is concerned about unreasonable pre-trial
delay. In these cases, subsection (4)(b) of section 525 specifically
provides for a further detention review “within 90 days or any other
period that the judge considers appropriate in the circumstances”.
Thus, we see that Parliament did consider the possibility of further
detention reviews but restricted it to cases where unreasonable pre-
trial delay was a real concern. Parliament did not mandate a regime of
ongoing detention reviews every 90 days.

[40] As part of my analysis, I must assume that Parliament knew what it

was doing when it drafted and passed section 525 in its present form.

This assumption implies, first of all, that the legislature is able to

devise effective legislative schemes and to formulate directives and
rules that will provide adequate guidance to those who must
implement and obey the law. Secondly, it implies mastery of the
conventions of legislative drafting.19

18 Myers, supra note 4 at para 33.

19 Sullivan, supra note 17 at 41.
 13

[41] Parliament provided for a mandatory detention review process

whenever one of the five triggering events occurs. Parliament also
addressed itself specifically to one further instance where a further
detention review might be available – in cases where the judge is
concerned about unreasonable pre-trial delay. In my view, section
525 constitutes an adequate and effective legislative scheme. I can
only properly assume that that is what Parliament intended to do.

(iii) Criminal Code sections 520 and 521 bail reviews

[42] As part of my analysis, I also consider what bail review mechanisms

Parliament has enshrined in other parts of its statutory bail regime. In
doing so, I must assume that the bail provisions of Part 16 are
“consistent and coherent”.20

[43] Apart from section 525, Mr. Tunnillie enjoys an ongoing right to have
his detention reviewed. Pursuant to Criminal Code section 520(1), an
accused may apply to a judge to review a bail order “at any time
before the trial of the charge”.21 Furthermore, section 520(8) states
that once such a bail review has been held, another review cannot be
requested by the accused, without leave of the court, until 30 days
have gone by.

[44] Criminal Code section 521 extends an equivalent right of bail review
to the Crown.

[45] These specific bail provisions strengthen my view that Parliament

would have expressly provided for an ongoing automatic 90-day
detention review had that been its intention. Again, Parliament did not
do so.

[46] Nunavut is a tiny jurisdiction population-wise and with few exceptions

accused persons are represented by legal aid counsel. The Nunavut
Court of Justice has regularly scheduled “Myers days” known to our
jails and counsel to hear detention reviews. Mr. Tunnillie continues to
enjoy his section 520 rights to periodic bail reviews. Mr. Tunnillie has
not fallen through the cracks, and he will not languish in pre-trial
custody because of this decision.

20 Ibid at 43.
21 Criminal Code, supra note 1, s. 520(1). Generally, the accused must show a material change
in circumstances since the bail order was made.
 14

B. Does either party bear an onus of persuasion at the detention

review hearing?

[47] The answer to question two is yes, depending on the underlying

circumstances, one or other party bears an onus of persuasion.

[48] A court may deny an accused bail and remand him into custody only
in three circumstances: if remand is necessary to get the accused to
attend court, or it is necessary for the safety or protection of the
public, or to maintain public confidence in the justice system.22
Depending on the surrounding circumstances, the onus – or burden of
persuasion – at a bail hearing or bail review may lie either with the
Crown or the Defence. Section 525 makes no reference to whether
either party bears an onus at the detention review.

[49] There is indeed “considerable debate in the case law”23 on this topic.
The proposition that there is no onus at the detention review is based
on a certain reading of Myers. The G.F. case noted by both counsel
sets out the position nicely:

Turning to the question of onus, in my view, it is clear that on a s. 525

review there is no onus on either party during this hearing. There is
nothing in the language of Myers or in the wording of s. 525 that
would suggest that a party appearing at the hearing carries an onus.
Indeed, Chief Justice Wagner in Myers stressed that the section
imposes an independent responsibility on the reviewing judge to
consider whether the continued detention of the accused is justified,
and establishes a discretionary mechanism designed to prevent
unreasonable delay and to expedite the trials of individuals on
remand.24

[50] As I noted earlier, Myers did not discuss or decide the onus issue. I
remind myself that I am considering a statutory regime, and that I
must consider the overall purpose and scheme of the entire regime.

22 Criminal Code, supra note 1, ss. 515(10)(a), (b), and (c). These criteria are known as the
primary, secondary, and tertiary grounds.
23 Hon. Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed (Toronto: Thomson Reuters,

2020) [Trotter] at 8-54.

24 G.F., supra note 10, citing Coroza J in R v Pescon (unreported, March 16, 2020) at para 17.
 15

[51] Prior to Myers, several cases in different provinces held that the onus
at the detention hearing is the same as at the initial bail hearing.25
Post Myers, an Ontario trial level judge has ruled that where an
accused has not had a bail hearing, the onus at the detention review
is what it would have been had the bail hearing been held. There are
Ontario cases which say that where there has been a bail hearing, the
onus at the detention hearing lies with the Defence to establish,
among other things, a change in circumstances or the existence of
new evidence.26 G.F. is authority for the proposition that there is no
onus. Given our federal system, none of these cases are binding law
in Nunavut.

[52] This issue has not been considered before in Nunavut, and I must try
to resolve it.

[53] Needless to say, it would be preferable for Parliament to decide this

issue after proper study in committee and considered Parliamentary
debate. Until such time as Parliament – or the Supreme Court of
Canada – settles the question, I agree with the conclusion reached by
Chief Justice R. Veale in R v Sawrenko that the “fairest procedure
would be to have the burden of proof [at the detention review] on the
same party that had the burden that resulted in the original or
reviewed custodial order”.27

[54] This recognition of an onus applicable to detention reviews also

seems logical. I will give an example. An accused might, as has Mr.
Tunnillie on his second file, appear in court for a section 525 detention
review without having had a bail hearing. In the event that an accused
was facing a Defence onus bail hearing, it is illogical that that onus
should disappear simply because he is up for a detention review. The
very same policy factors which justified a Defence onus at the bail
hearing remain present at the time of the detention review.

25 R v Thorsteinson, 2006 MBQB 184; R v Russell, 2016 NLTD(G) 208, 136 W.C.B. (2d) 73.
26 These cases are discussed in G.F., supra note 10 at para 16, and Trotter, supra note 23 at 8,
54-55.
27 2008 YKSC 27 at para 30.
 16

[55] I believe this is a principled approach. I do not see the presence of an

onus as undermining the independent responsibility of the presiding
judge at the detention review. The issue of onus has not triggered
concerns about its possible effect on the independence of judicial
officers at other stages of the bail process. Recognizing an onus at
the detention review, then, conforms to the overall structure of the bail
regime. I see no adverse implications to applying an onus at the
detention review stage. Indeed, in my experience, the presence of an
onus tends to focus counsel on what is relevant to the case.

[56] The onus of persuasion or onus of proof at the detention review falls
on the same party that had the onus at the hearing that resulted in the
original or reviewed detention order (or who would have had the onus
at the bail hearing).

C. Is an accused entitled to request an adjournment of the section

525 detention review?

[57] In my view, the answer to question three is yes. An accused is entitled

to request a short adjournment of the detention review.

[58] The section 525 detention review regime does not include any
reference to adjournments. However, the Supreme Court of Canada
has provided some guidance on this point. Once the jailer has filed its
section 525 notice, the court must schedule the hearing date “without
delay” to the “first available date.”28 As the hearing is mandated by
statute, the court has no authority not to hold the hearing in a timely
fashion. The Court in Myers continued that only “occasionally and in
limited circumstances” may the judge exercise discretion to adjourn
the detention hearing.29

[59] As the Crown noted, paragraphs 39 and 40 in Myers focus on court-

inspired adjournments. The Court did not address those
circumstances where it is an accused – like Mr. Tunnillie - who makes
the adjournment request. In any event, the Court did set out a two-
part-test which must be satisfied before a court may adjourn a
detention review. The proposed adjournment must “clearly” be one
which “serves the interest of justice and the underlying purposes of
[section 525]”.30

28 Myers, supra note 4 at para 39.

29 Ibid, para 40.
30 Ibid, para 41.
 17

[60] We know from experience a major reason accused persons consent

to their pre-trial remand: they do not have a reasonable release plan
to present to the court. Courts routinely adjourn bail hearings to give
an accused the chance to put just such a release plan together.
Holding quick bail hearings in these circumstances just to be seen to
be dealing with cases in a timely fashion would obviously lead to
many injustices.

[61] Defence counsel says Mr. Tunnillie needs some time to respond
properly to the detention review. In my view, the interests of justice
are clearly served by granting Mr. Tunnillie’s request for an
adjournment on the second file. The first part of the two-part-test is
satisfied. The real issue invokes the second part of the test. How long
may the Court adjourn and thereby delay the detention review?

[62] The second part of the Myers test says that any adjournment must
conform to the purposes of the detention review regime. As we have
seen, the purpose of the regime is to ensure that an accused does not
fall through the cracks while sitting on remand, and that the judge act
as a case manager to ensure that the case proceeds along to a timely
resolution. To that end, it appears only logical that any adjournment
ought to be a reasonably short one so as not to undermine the
purpose of the timely detention review process.

[63] I will not try to define what, or what may not, constitute a reasonably
short adjournment. These determinations can only be made in
response to the circumstances of the individual case. In Mr. Tunnillie’s
case, I am prepared to grant an adjournment up to 30 days before the
detention review may be held. I would not be inclined to go beyond
that time for the reasons I have already stated above, and because
Mr. Tunnillie always has the benefit of a potential section 520 bail
review.

D. Once an accused has waived their right to the section 525

detention review, may they revoke this waiver later on to have the
hearing proceed?

[64] In my view, the answer to this question is no. Once an accused

waives the right to a detention review, the waiver is irrevocable.

[65] Section 525 is silent on this issue which was not considered in Myers.
I look to the legislation itself and the implications of section 525(1.1) to
find the answer.
 18

[66] In Nunavut, the practice has developed where BCC, for example, files
its section 525 notice with the Court close to or at the very same time
as it sends the notice to Defence and Crown counsel. This may
explain why the waiver form drafted by counsel for the Legal Services
Board contains a place to record the court file number. Once the
Court receives the notice, the Court must schedule the detention
review. So, practically, we have the situation where Mr. Tunnillie has
filed his written waiver after the jailer has filed its notice, so the Court
is seized with the matter. While the merits of this practice were not
argued before me, the present practice seems to conform with the
legislation.

[67] Section 525(1.1) does contemplate a different scenario, though.

Subsection (1.1) says an accused may file a waiver of the right to
detention review with the court before the jailer files its notice with the
court. As long as the court receives the waiver before the 90-day
clock expires, the jailer is not obliged to file its notice with the court. In
such a case, the waiver is filed, and if the judge decides not to hold
the detention review anyway,31 the 90-day clock clicks down to zero
and the matter is concluded – at least as far as the detention review is
concerned. The 90-day clock having expired the effect of the waiver is
permanent.

[68] But, is the waiver permanent if the matter gets before the court?
Counsel were unable to provide any case law where this issue has
been discussed. As a matter of principle, a revocable waiver
potentially could lead to long or indefinite adjournments. These
possibilities fly directly in the face of Parliament’s clear purpose to
have the mandatory section 525 safety net detention review held as
close as possible to 90 days after an accused is denied bail.

[69] Therefore, I rule that Mr. Tunnillie’s express waiver of his right to the
detention review filed on 20 March 2020 was irrevocable.

31 Criminal Code, supra note 1, s. 525(3).

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VII. CONCLUSION

[70] Section 525 forms one part of the comprehensive statutory bail
regime enshrined in the Criminal Code. 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. 90 days after he is
brought before a justice of the peace after arrest, or 90 days after a
subsequent remand, an accused must be brought before a judge. In
most cases, section 525 acts as a one-time32 systems check to
ensure that an accused’s case is moving along appropriately.

[71] Section 525 is an effective complement to the other bail safeguards

which I have already discussed.

[72] Mr. Tunnillie irrevocably waived his right to his detention review on file
one on 20 March 2020. There has been no subsequent detention
order and therefore no subsequent triggering event. For these
reasons, I find that Mr. Tunnillie is not entitled to another section 525
detention review. I strike file one from the docket.

[73] Mr. Tunnillie, however, is entitled to have his bail status determined
on the second file. Myers is binding authority which mandates the
detention review judge to conduct a detention-review-cum-bail-
hearing if one has not yet been held.33

[74] I have the authority to adjourn this detention-review-cum-bail-hearing

for a short time. I adjourn Mr. Tunnillie’s hearing to the first available
date for counsel. Counsel told me that the Crown would have had the
onus of persuasion had a bail hearing been held. The Crown shall
bear the onus at the detention review hearing.

Dated at the City of Iqaluit this 17th day of July 2020

___________________
Justice P. Bychok
Nunavut Court of Justice

32 As Alan D. Gold noted in The Practitioner’s Criminal Code 2020 (Toronto: LexisNexis, 2020) at
849, before the amendments in Bill C-75, “In normal circumstances, there is only one application
available under s. 525 of the Code, with no application 90/30 days thereafter. However, there
may be anomalies…”. For a discussion of these possible anomalies, see McCallum, supra note 9
at paras 47-48.
33 Myers, supra note 4 at para 56.