….courts…act both as watchdogs against mob justice and as guardians of public confidence in our justice system.
The Honourable Richard Wagner, speaking for a unanimous Supreme Court of Canada in R. v. St.-Cloud,  2 S.C.R. 328, at para. 83.
A judge may deny an accused bail subsequent to an arrest for the sole purpose of maintaining public confidence in the administration of justice (Criminal Code s. 515(10)(c)). Parliament recognizes that, in some cases, the release of an accused back into the community before trial may raise legitimate societal concerns as to whether our system of justice is functioning properly.
The analytical starting point for a judge is the language of s. 515(10)(c) and the guidance provided by the Supreme Court of Canada in St.-Cloud.
Section 515(10)(c) states that a judge may deny an accused bail for any offence:
…if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution's case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
A judge must “adopt the perspective of the public in determining whether detention is necessary” (para. 4). The Court clarifies that the “perspective of the public” is not that of an ill-informed, impulsive mob with no regard for the constitution, but rather a public that is “reasonable” (para. 77), “thoughtful” (para. 80), “not overly emotional” (para. 77) and with adequate knowledge of “the circumstances of the case” (para. 83), the “philosophy of the legislative provisions”, and the “fundamental values of our criminal law” (para. 79).
Adopting this perspective, a judge must “consider all the circumstances of each case, paying particular attention to the four listed circumstances”(para. 87). The Court emphasizes that “no single circumstance is determinative” and that a judge “must consider the combined effect of all the circumstances of each case” (para. 87). In conclusion, the Court stresses that:
…At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c) (para. 87).
The Court also notes that detention is not automatic “where the four listed circumstances weigh in favour of such an order” (para. 68). As the Court states at para. 69:
The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. …The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.
The Court also reminds judges at para. 86 that:
…there is not just one way to undermine public confidence in the administration of justice. It may be undermined not only if a justice declines to order the interim detention of an accused in circumstances that justify detention, but also if a justice orders detention where such a result is not justified.
- On a practical level, the Court sends a clear message that “if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered” (para. 88).
- Legal jargon – At a bail hearing a Crown Attorney will make reference to the “tertiary ground” when seeking to detain an accused before trial based upon the need to maintain confidence in the administration of justice (s. 515(10)(c)). The “primary ground” refers to flight concerns (s. 515(10)(a)) and the “secondary ground” refers to concerns that the accused will commit a further offence or interfere with the administration of justice (s. 515(10)(b)).
- In assessing the apparent strength of the prosecution’s case (s. 515(10)(c)(i)), a judge does not analyze the credibility of the Crown’s witnesses or the reliability of any scientific evidence (para. 58). That being said, a judge must consider the quality of the evidence tendered by the Crown during the balancing process – “physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be less reliable than direct evidence” (para. 58). A judge must also consider any apparent weaknesses in the Crown’s case, any defences it suggests, and any defences that the accused chooses to raise (para. 59).
- The gravity of the offence (s. 515(10)(c)(ii)) is determined objectively, by way of reference to the maximum allowable punishment for the offence, and any applicable minimum punishment.
- Regarding the circumstances surrounding the commission of the offence (s. 515(10)(c)(iii)), a judge may take into account any aggravating or mitigating factors that would be used by the court for sentencing purposes. While not an exhaustive list, a judge may consider:
o Whether the offence is a “violent, heinous or hateful one” (para. 61);
o Whether the offence was “committed in a context involving domestic violence, a criminal gang or a terrorist organization” (para. 61);
o Whether the victim was “a vulnerable person (e.g. a child or a person with a disability)” (para. 61); and
o The extent of the accused’s participation where there was more than one perpetrator (para. 61).
- Whether the accused is liable to a lengthy term of imprisonment (s. 515(10)(c)(iv)) is determined subjectively, taking into account case specific information about the alleged offence and the accused (para. 64).
- Other, non-listed, factors that a judge may consider include:
o “the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc. (para. 71);
o the status of the victim and the impact on society of a crime committed against that person (para. 71); and
o the fact that the trial of the accused will be held at a much later date (para. 71).