Supreme Court of Canada reiterates the right not to be denied reasonable bail

The importance of the right not to be denied reasonable bail without just cause, and the intertwined presumption of innocence, were recently reiterated by the Supreme Court of Canada in the context of the bail hearing process.

On June 1, 2017 the Supreme Court of Canada released their decision in R v Antic1. In this decision the Court explained the application of a specific provision of the Criminal Code which allows for both a surety release as well as a cash bail in outlined circumstances. The decision also addressed wider concerns including the varying application of bail provisions across Canada.

The Court in Antic highlighted that bail provisions must be applied consistently across the country. The method of determining a fair and consistent application is through the mandatory application of the “ladder principle” outlined in section 515 of the Criminal Code when determining an appropriate form of release where pre-trial detention is not warranted. Justice Wagner explained as follows:

It is time to ensure that the bail provisions are applied consistently and fairly. The stakes are too high for anything less. Pre-trial custody "affects the mental, social, and physical life of the accused and his family" and may also have a "substantial impact on the result of the trial itself": Friedland, Detention before Trial, at p. 172, quoted in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857 (S.C.C.), at para. 24; see also Hall, at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption of innocence, "a hallowed principle lying at the very heart of criminal law... [that] confirms our faith in humankind": R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.), at pp. 119-202.

Aside from specific offences3, the presumption following arrest is that an accused shall be released on an undertaking to the court without conditions. If the prosecutor shows cause as to why a conditional release is justified, on the basis that there is a significant concern relating to flight risk, public safety, or public confidence in the administration of justice, conditions may be imposed to mitigate the risk. The Criminal Code mandates that the least onerous form of release be imposed as required in the circumstances. The “ladder” outlined in section 515(2) of the Criminal Code therefore begins with an undertaking with specified conditions as outlined in section 515(2)(a), and gets progressively more onerous with the final rung laid out in section 515(2)(e).

The specific issue in Antic related to section 515(2)(e) of the Code, which permits a judge or justice presiding over a bail hearing to order a release where an accused provides both a cash deposit as well as a surety who agrees to supervise him or her upon release. The Court reiterated that this provision only applies to persons meeting the geographical requirement laid out in the Code. The accused must either not ordinarily reside in the province where the charge is laid, or must not ordinarily reside within 200 km of the place in which he or she is in custody.

The Court in Antic then looked specifically at provincial differences in bail proceedings. It was suggested that in Ontario and the Yukon there may be an overreliance on surety release. The Court commented that in Alberta, cash bail is sometimes imposed without the bail judge or justice even seeking consent of the Crown.

Two specific guidelines were provided in Antic in relation to cash bail where such a condition is contemplated in accordance with the ladder principle and where the prosecutor has demonstrated that a less onerous form of release is inappropriate.

First, the Court emphasized that cash bail is not necessary where the accused or their sureties can pledge their assets, which are reasonably recoverable by way of a forfeiture proceeding, to the satisfaction of the court in justifying their release. A good example of a reasonably recoverable asset would be a piece of real estate owned by the person making the pledge.

In their determination that a cash deposit was not necessarily required in Mr. Antic’s case, the Supreme Court explained that a monetary pledge gives an accused the same financial incentive to abide by the terms of his or her release as a cash deposit would. The requirement of a cash bail should therefore be a limited alternative to a pledge where an accused, or his or her surety, has assets that could be recovered by way of forfeiture proceeding.

The Supreme Court held that it was an error to believe that the accused would be more likely to abide by his conditions where there was cash deposited with the court rather than a pledge to pay such money in the event of a breach. It was also an error in Mr. Antic’s case to speculate that forfeiture proceedings would not be instituted against a proposed surety, his elderly grandmother, should he breach the terms of his release.

Second, the Court emphasized that where cash bail is ordered, the amount ordered should not be beyond the readily available means of the accused and his or her sureties. The judge or justice presiding over the bail hearing must make inquiries into the ability of the accused to pay. The amount cannot be so high that it amounts to a de facto detention order, and cannot be higher than necessary to satisfy any concerns with release. The circumstances of the case and the accused must be considered.

In Mr. Antic’s case, he had originally been denied bail but was later ordered released on a $100,000 cash deposit despite evidence that he would not readily be able to pay such an amount. He sat in custody for months while raising the significant amount of cash required for his release, despite being ordered releasable. This is emblematic of the situation that the Supreme Court warns against.

The strong reiteration of the importance of the right not to be denied bail without just cause and the right to reasonable bail is a welcome push from the country’s highest court, as lost liberty can never be regained.

1. 2017 SCC 27 [Antic].
2. Ibid at para 66.
3. Referred to in section 469 of the Criminal Code, including murder, treason, and war crimes.

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