Supreme Court of Canada Addresses Legal Errors Widespread in the Bail System
For as long as I
can remember there has been a widespread disjunction between the legal rule that
the form of bail release imposed on an accused be no more onerous than
necessary and the application of that rule in our courts.
In my experience, release of
the accused on a recognizance with a surety/sureties (which the Supreme Court
of Canada has recognized as an onerous form of bail) has become the sine qua non of a bail release.
Suggest at a bail hearing
that the accused ought to be released on his own undertaking without or even
with conditions and you will likely have to endure an eye roll from the
presiding justice. Coming to a bail
hearing expecting that sureties will not be required is simply folly. Yet the legal rule (known as the ladder principle) that release of the
accused should occur at the earliest reasonable opportunity and on the least
onerous grounds is well-established in our jurisprudence.
The June 2017 decision
of the Supreme Court of Canada in R. v.
Antic, [2017] 1 SCR 509 comes then as a welcome relief. R. v.
Antic reorients courts to the primacy of the ladder principle, asserts that a surety should not be imposed
unless all the less onerous forms of release have been considered and rejected
as inappropriate, and requires a court to justify its decision to prefer a more
onerous form of release over a less onerous form.
The Ladder Principle
The ladder principle
generally requires that a justice not order a more onerous form of release
unless the Crown shows why a less onerous form is inappropriate. In other words,
the ladder principle means that release is favoured at the earliest reasonable
opportunity and on the least onerous grounds.
R. v. Antic, at para.
29;
R. v. Anoussis, 2008
QCCQ 8100 (CanLII), 242 C.C.C. (3d) 113,
at para. 23.
The ladder principle and
the authorized forms of release remain a central part of the Canadian law of
bail and are enumerated in s. 515(1) to (3) of the Criminal Code.
R. v. Antic, at para. 30.
At the beginning of the
ladder is release of the accused on his giving an undertaking without
conditions. [FN1]
See
section 515(1) of Criminal Code.
However, s. 515(1) also affords
the prosecutor an opportunity to show why the accused should either be detained
or be released under more onerous forms of release. [FN2]
The Criminal Code sets out these possible forms of release, ordered
from the least to the most onerous; hence, the metaphor of a ladder.
See sections 515(1) to (3) of the Code.
The Rungs of the Ladder (from least onerous to most
onerous forms of release)
·
Undertaking
without conditions;
·
Undertaking
with conditions;
·
Recognizance
without sureties (no deposit), with or without conditions;
·
Recognizance
with sureties (no deposit), with or without conditions;
·
On the
consent of the prosecutor, recognizance without sureties, with deposit, with or
without conditions;
·
Recognizance
with or without sureties, with or without conditions, with deposit (only where
accused not ordinarily resident of province or does not ordinarily reside
within 200 km of the place in which he is in custody).
Contested Bail Hearings
As per R. v. Antic, at para. 67 the following
principles and guidelines should be adhered to when applying the bail provisions
in a contested hearing:
(a)
Accused persons
are constitutionally presumed innocent, and the corollary to the presumption of
innocence is the constitutional right to bail.
(b)
Section 11(e)
guarantees both the right not to be denied bail without just cause and the
right to bail on reasonable terms.
(c)
Save for exceptions, an unconditional release
on an undertaking is the default position when granting release: s. 515(1).
(d)
The ladder
principle articulates the manner in which alternative forms of release are to
be imposed. According to it, release is favoured at the earliest reasonable
opportunity and, having regard to the statutory criteria for detention, on the
least onerous grounds. This principle must be adhered to strictly.
(e)
If the Crown proposes an alternative form of
release, it must show why this form is necessary. The more restrictive the form
of release, the greater the burden on the accused. Thus, a justice of the peace
or a judge cannot impose a more restrictive form of release unless the Crown
has shown it to be necessary having regard to the statutory criteria for
detention.
(f)
Each rung of the
ladder must be considered individually and must be rejected before moving to a
more restrictive form of release. Where the parties disagree on the form of
release, it is an error of law for a justice or a judge to order a more
restrictive form of release without justifying the decision to reject the less
onerous forms.
(g)
A recognizance
with sureties is one of the most onerous forms of release. A surety
should not be imposed unless all the less onerous forms of release have been
considered and rejected as inappropriate.
(h)
It is not
necessary to impose cash bail on accused persons if they or their sureties have
reasonably recoverable assets and are able to pledge those assets to the
satisfaction of the court to justify their release. A recognizance is functionally
equivalent to cash bail and has the same coercive effect. Thus, under s.
515(2)(d) or s. 515(2)(e), cash bail should be relied on only in exceptional
circumstances in which release on a recognizance with sureties is
unavailable.
(i)
When such
exceptional circumstances exist and cash bail is ordered, the amount must not
be set so high that it effectively amounts to a detention order, which means
that the amount should not be beyond the readily available means of the accused
and his or her sureties. As a corollary to this, the justice or judge is under
a positive obligation, when setting the amount, to inquire into the ability of
the accused to pay. The amount of cash bail must be no higher than necessary to
satisfy the concern that would otherwise warrant detention and proportionate to
the means of the accused and the circumstances of the case.
(j)
Terms of release
imposed under section 515(4) may “only be imposed to the extent that they are necessary” to address concerns
related to the statutory criteria for detention and to ensure that the accused can be release. They must not be imposed to
change an accused person’s behaviour or to punish an accused person.
(k)
Where a bail review
is applied for, the court must follow the bail review process set out in St-Cloud.
Consent Releases
Although a justice
or a judge should not routinely second-guess joint proposals by counsel, he or
she does have the discretion to reject one. Joint proposals must be premised on
the statutory criteria for detention and the legal framework for release.
R. v. Antic, at para. 68.
[FN1] Section
515(1) requires that, where an accused is charged with an offence other than
the ones listed in s. 469 of the Code, “the accused be released on his
giving an undertaking without conditions”.
[FN2] The Code also
requires that accused persons charged with any of the offences listed in s.
515(6) be detained unless they justify their release. This reversal
of the burden is know as reverse onus.
Stuart O’Connell, O’Connell
Law Group, www.leadersinlaw.ca
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