In R. v. Antic, 2017 SCC 27, the Supreme Court of Canada reiterates “the proper approach” for conducting a bail hearing (para. 6).
The Court emphasizes that the bail provisions in the Criminal Code “are federal law and must be applied consistently in all provinces and territories” (para. 6). The message is clear: Too many accused are being held unnecessarily in custody before trial, and for those who are granted bail, too many are being subjected to unnecessarily restrictive conditions and forms of release.
The Court sets out eleven “principles and guidelines” that “should be adhered to when applying the bail provisions in a contested hearing” (para. 67). These principles "also provide the legal backdrop that should guide plans of release to which the parties consent" (para. 44).
(a) “Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.” (para. 67(a))
The conceptual starting point for a bail hearing is a consideration of the following constitutional guarantees:
1) The right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (s. 11(d) of the Charter); and
2) The right not to be denied reasonable bail without just cause (s. 11(e) of the Charter).
As the Court states at para. 1:
The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal process and safeguards the liberty of accused persons… (emphasis added)
A judge must tread lightly in restricting the liberty of an accused who has not been found guilty of any crime and is awaiting a hearing on the merits of an allegation. As the Court states at para. 66:
…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”... 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… Courts must respect the presumption of innocence, "a hallowed principle lying at the very heart of criminal law...". (citations omitted)
(b) “ Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.” (para. 67(b))
The Court reminds us that the constitutional guarantee under section 11(e) applies not only to the determination of whether an accused should be released or detained in advance of trial – it also applies to the reasonableness of the form of bail and any specific terms or conditions (para. 41).
A judge is only authorized to restrict an accused’s liberty in advance of trial based upon well founded concerns about flight ("the primary ground"), public safety ("the secondary ground") and/or maintaining confidence in the administration of justice ("the tertiary ground") - see Code s. 515(10) - the statutory criteria for detention - and R. v. St-Cloud, 2015 SCC 27 for additional guidance with respect to the interpretation of the tertiary ground).
(c) “Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).” (para. 67(c))
The Court reminds us that the default position at a bail hearing is that the court shall release the accused on an undertaking to attend court at a later date, without conditions (s. 515(1)). The Crown must justify the necessity of an alternate form of release, or detention, on a balance of probabilities.
There are two exceptions to this general rule: 1) “…accused persons charged with any of the offences listed in s. 515(6) (must) be detained unless they justify their release” (para. 45) (the reverse onus provisions); and 2) an accused charged with an offence in s. 469 (including murder) must be detained in custody subject to an accused’s successful application for release in a superior court.
(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”: Anoussis, at para. 23. This principle must be adhered to strictly.” (para 67(d))
The ladder principle is a statutory conceptual tool that provides judges with guidance in selecting the necessary level of supervision for an accused pending trial.
The alternative forms of release authorized in s. 515(2) may be visualized as rungs on a ladder. The forms of release are ordered such that the level of supervision increases with each successive rung as we ascend the ladder.
The ladder principle ensures that judges cannot freely choose from any of the alternate forms of release in any given case. As the Court clarifies at para. 47:
The ladder principles is codified in s. 515(3), 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."
The Court draws attention to the progressively more restrictive nature of the alternative forms of release set out in s. 515(2) at paragraph 46:
Each provision, moving from s. 515(2)(a) to s. 515(2)(e), involves more burdensome conditions of release for the accused than the one before it. These forms of release, coupled with the specific terms of release a justice or judge may impose under s. 515(4), have significant potential to impinge on an accused person’s liberty.
The lowest rung of the bail ladder, s. 515(2)(a), is an undertaking to attend court at a later date with conditions.
The next rung of the bail ladder, s. 515(2)(b), involves a release on the accused's own recognizance – a monetary pledge by the accused, based upon reasonably recoverable assets and without the deposit of money – to attend court at a later date and to comply with any necessary conditions.
The next level, s. 515(2)(c), involves a release on a recognizance with sureties, without the deposit of money. (Sureties agree to supervise the accused’s compliance with any necessary conditions and pledge their own assets to secure the accused’s release.)
Section 515(2)(d), involves a release on an accused’s own recognizance with a deposit of money and an agreement to comply with any necessary conditions. This section requires the consent of the prosecutor. As the Court notes at para. 65, “some judges and justices are improperly imposing cash bail without seeking the consent of the Crown even though doing so is prohibited by the Code” (para. 65).
Section 515(2)(e), is a recognizance, with or without sureties, with a deposit of money and an agreement to comply with any necessary conditions. This section only applies when an accused “is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody”.
(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." (para. 67(e))
As the Court reiterates at para. 21:
...Although release is the default position in most cases, a judge or a justice also has the authority to deny the release of an accused or to impose conditions on the accused when he or she is released, provided the Crown justifies the detention or the conditions. ...
(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.” (para. 67(f))
The Court compels a judge, and counsel in crafting release positions, to give due consideration to each rung of the ladder.
For the purpose of a bail review, defence counsel will be alert to the Court’s direction that “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” (para. 67) (emphasis added).
(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." (para. 67(g))
The Court reminds practitioners to give proper weight to the burdensome nature of a recognizance with sureties as a form of release and cautions against “an overreliance on sureties” (para. 65). Counsel should consider a release involving sureties to be exceptional in nature as opposed to an automatic or presumptive starting point.
We must also not overlook a release on an accused's personal recognizance if a monetary condition is necessary.
(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 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable." (para. 67(h))
As the Court states at para. 4:
…A cash deposit and a monetary pledge both give an accused the same financial incentive to abide by his or her release order. Neither is more coercive than the other. But requiring cash can be unfair, as it makes an accused’s person’s release contingent on his or her access to funds. Thus, cash bail is merely a limited alternative to a pledge that should not be imposed where accused persons or their sureties have reasonably recoverable assets to pledge.
For greater clarification, the Court states at para. 49:
...where a monetary condition of release is necessary and a satisfactory personal recognizance or recognizance with sureties can be obtained, a justice or a judge cannot impose cash bail. ... (emphasis added)
(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." (para. 67(i))
The Court notes that the amount of cash bail that the judge ordered in Mr. Antic’s case became his “de facto prison, which is a sign that the amount may have been set too high” (para. 57). After the judge ordered his release with a surety and a cash deposit of $100,000, Mr. Antic remained in custody for over eight additional months as he struggled to raise the necessary funds to deposit with the court.
(j) “Terms of release imposed under s. 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 released. They must not be imposed to change an accused person’s behaviour or to punish an accused person." (para. 67(j))
A bail hearing is not a sentencing - the focus in not on punishment or rehabilitation. The necessity of a particular condition of release can only be justified based upon well-founded concerns about flight, public safety and/or maintaining confidence in the administration of justice (s. 515(10)).
Counsel must be alert to whether a proposed condition is unreasonable having regard to the client’s personal circumstances. For example, it is unrealistic to impose a strict alcohol prohibition on an accused suffering from a dependence on alcohol. Depending on the circumstances of the case, the risk to public safety may be addressed by a more tailored approach such as a condition prohibiting the consumption of alcohol outside a private residence.
Counsel must also question whether a proposal involving curfew or house arrest (effectively a conditional sentence of imprisonment - a severe punishment at a sentencing hearing) is necessary to address the legitimate concerns of the bail regime.
While clients will often be ready to agree to any terms or conditions in order to be released from custody at the courthouse, counsel must endeavour to shield the client from unnecessary and/or unrealistic conditions that may set the client up for failure upon release.
(k) “Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.” (2015 SCC 27) (para. 67(k))
Clients should appreciate that bail reviews may be time-consuming and may represent a significant financial burden in the absence of Crown consent. A client should not agree to an unworkable condition with the expectation that the release order will be changed easily and quickly.
While it is common for the Crown and the Defence to negotiate an accused’s release, a judge always makes the final decision at a bail hearing as to whether to order the release of an accused, and if so, on what terms. For example, a judge may take issue with a proposed optional condition of bail that appears unreasonable. As the Court states at para. 68:
…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.