Rejecting a Consent Release
Section 515(3) of the Code
requires a justice to impose the least onerous form of release on an accused
unless the Crown shows why that should not be the case. This is why bail
hearings are sometimes referred to as “show cause” hearings.
Criminal
Code.
Section
515(3) The justice shall
not make an order under any of paragraphs (2)(b) to (e) [types of release on
recognizance] unless the prosecution shows cause why an order under the
immediately preceding paragraph should not be made.
There are many instances
where notwithstanding the Crown’s agreement with defence counsel, or even when
the Crown consents to release, where the Court must intervene as part of its supervisory
or review jurisdiction to make decisions contrary to such agreements or joint
submissions.
R. v.
D.C.G.S., 2003 ABQB 420 (CanLII).
Consent release is an
efficient method of achieving the release of an accused. 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,
[2017] 1 SCR 509, at para. 68.
It follows then that a
justice may find that the evidence received at the bail hearing, in and of
itself, meets the threshold of showing
cause. The Crown’s position on
release is not determinative.
However, rejecting a
consent release is likely to be rare, as a justice cannot impose a more restrictive
form of release unless, on balance, that more onerous form of release is
necessary having regard to the statutory criteria.[FN]
[FN]
This is a consequence of the ladder principle, which is
codified in section 515(3). For more see Stuart O’Connell
Criminal Law Blog, www.stuartoconnell.blogspot.ca/2017/11/supreme-court-of-canada-addresses-legal.html?q=bail
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