The Law of Bail in Canada Revisited
June 2, 2017
Being arrested by the police is a traumatic event.
Once in the criminal justice system, the process of being released from custody can be perplexing and stressful. This week, The Supreme Court of Canada rebuked the culture around the process of granting bail.
Procedurally, the process of obtaining bail, or pre-trial release, which the Criminal Code refers to as judicial interim release, is spelled out in section 515 of the Criminal Code of Canada. The criminal code, provides for a progressively more restrictive form of release which starts with an undertaking to return to court without conditions, and ends with a surety release with a cash deposit along with restrictive conditions. The six forms of release are:
- An undertaking without conditions.
- An undertaking with conditions.
- A recognizance with conditions without the deposit of money.
- A recognizance with conditions, with one or more sureties, and without the deposit of money.
- A recognizance with conditions, without sureties, and with the deposit of money.
- If not resident in province or reside more than 200 kilometers from place in custody, a recognizance with conditions, with or without one or more sureties and with a deposit of money.
Nine conditions of release which may be imposed are listed in the criminal code. This provides a wide range of conditions which include any “reasonable conditions”.
The ladder principle is codified in subsection 515(3) of the Criminal Code, which prohibits a justice or a judge from imposing a more onerous form of release unless the Crown shows why a less onerous form is inappropriate: “The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.”
A practice has grown over the years, in which the most restrictive form of release has been imposed for accused persons at the very first instance without any consideration of whether the less restrictive forms of release should apply. Often, the prosecutor would only consent to the release of an accused person on a recognizance with a surety with very restrictive conditions such as residing with that surety and being subject to a ‘house arrest’. An accused person in custody would readily accept this because, of course, they want to be released from custody as soon as possible. In a busy jurisdiction, an accused may have to wait several days before the court would be able to hear a contested bail hearing. They are, in effect, at the mercy of a system in which the prosecution exerts a powerful influence on their liberty. Mr. Raymond E Wyant wrote an excellent position paper describing this improper practice for the Ontario Ministry of the Attorney General.
This “bail culture” was sharply disapproved of by the Supreme Court in the case of R. v. Antic 2017 SCC 27. The Supreme Court reiterated the principle that the least restrictive form of release should be imposed. Each subsequent form of release must be considered and reasons for not imposing it must be specified before considering the next restrictive form for release.
The Supreme Court has reminded prosecutors and Justices of the Peace (who are normally tasked with presiding over bail hearings) that presumption of innocence as guaranteed by section 11(d) of the Charter of Rights and Freedoms and right to bail as guaranteed by section 11(e) of the Charter of Rights and Freedoms must be respected. The system of placing the onus on the accused to effect their release must end.
As criminal defence lawyers in Mississauga, we see this in practice on a daily basis. An accused person will be in custody at the Brampton courthouse, with no means of contacting anyone for assistance. Duty counsel may or may not be able to assist. If they do so, often onerous conditions are placed on the accused person in order for them to agree to a release plan. Often, duty counsel is ineffective and the accused person is taken to Maplehurst Detention Centre to sit in jail until someone shows up to bail them out.
As criminal defence lawyers working in Brampton, we understand the anxiety that an accused person and their families are feeling. We have taken it upon ourselves to attend at the accused’s home to locate someone who can bail them out.
Like many aspects of the criminal justice system, bail is a crucial moment where a person’s liberty is at stake. Navigating the system when charged with a criminal offence can be onerous and overwhelming. Let our skill and expertise can work for you to effect release from custody for you or a loved one.
The lawyers at Kalina & Tejpal can be reached at (416) 900-6999 or firstname.lastname@example.org