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Watt’s Criminal Law and Evidence Newsletter | Balancing Test

Supreme Court of Canada clarifies that s. 515(10)(c) provides a stand-alone basis to keep an accused detained in custody, depending on how the court assesses the balancing test of listed and other circumstances.



Watt’s Criminal Law and Evidence Newsletter



[CL 8] — The Application of s. 515(10)(c)

To determine whether D’s detention is necessary to maintain confidence in the administration of justice, a justice must first consider the four circumstances expressly described in the section:

i. the apparent strength of P’s case, which includes consideration of the quality of P’s evidence and any defences raised by D that may affect the apparent strength of P’s case;

ii. the objective gravity of the offence when compared to other Code offences;

iii. the circumstances surrounding the commission of the offence, including use of a firearm, the violent, heinous or hateful nature of the offence, and whether the offence involved domestic violence, a criminal gang or terrorist organization, a vulnerable victim or the joint participation of others; and

iv. D’s liability for a potentially substantial term of imprisonment.

R. v. St-Cloud, 2015 CarswellQue 3556, 2015 CarswellQue 3557, 321 C.C.C. (3d) 307 (S.C.C.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 515, “Any Other Just Cause: s. 515(10)(c)”.

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[CL 10] — Balancing the Factors Under s. 515(10)(c)

No circumstance listed in 515(10)(c) is determinative of whether D should be released or detained. The justice must consider the combined effect of all the circumstances to determine whether detention is justified under the section. Other relevant circumstances beyond those listed in the section include:

i. D’s personal circumstances;

ii. V’s status;

iii. the societal impact of the offence; and

iv. the fact that D’s trial will be held much later.

R. v. St-Cloud, 2015 CarswellQue 3556, 2015 CarswellQue 3557, 321 C.C.C. (3d) 307 (S.C.C.)

See, Tremeear’s Annotated Criminal Code, Criminal Code, s. 515, “Any Other Just Cause: s. 515(10)(c)”.

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