Grounds for Release

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General Principles

Section 515(10) of the Criminal Code provides that bail may be denied in three situations:

  1. where it is "necessary to ensure his or her attendance in court";
  2. where it is "necessary for the protection or safety of the public" or
  3. where it is "necessary to maintain confidence in the administration of justice".

Section 515(10) states:

515.
...
Justification for detention in custody
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) 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.

...
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32.


CCC

Burden and Standard of Proof
The burden is upon the Crown to justify detention on the balance of probabilities unless the offence is subject to a reverse onus.[1]

Prohibited Purpose
There is an accepted prohibition against using remand as a means to punish accused persons prior to a fair trial.[2]

History
Prior to the Bail Reform Act, the criteria for bail were a matter of the common law.

At common law, bail was not intended to be punitive.[3] The primary consideration was to secure attendance at trial.[4]

Factors considered would include the flight risk posed by the accused.[5]

  1. see Judicial_Interim_Release#Reverse_Onus
  2. R v James, 2010 ONSC 3160 (CanLII), at para 22
  3. R v Lagus, 1964 CanLII 391 (SK QB) at para 9
  4. Lagus, supra at para 9
  5. R v Gottfriedson (1906), 10 CCC 239 (B.C. Co. Ct.)(*no link)
    R v Fortier (1902), 6 CCC 191 (Que. K.B.)(*no link)

Primary Grounds

Under s. 515(10)(a) bail can be denied "where the detention is necessary to ensure [the accused’s] attendance in court". This ground addresses whether the accused is a flight risk.

Factors

This can include factors such as:[1]

  • Accused's Local Connections vs Connections to Another Jurisdiction
    • family or community roots in the jurisdiction
    • citizenship / ownership of a passport
    • current residence, history of residences
    • living arrangement (partner or roommate), marital status
    • current connection with the community
    • employment history and ability to work if released
    • amount of assets and connection with community (ie. property ownership such as house and car)
  • Accused's Character
    • age and maturity
    • history of substance abuse
    • education
    • history of flight
    • history of untrustworthiness
    • criminal record for breaching court orders
    • association with persons with criminal record
  • Level of Potential Supervision
  • Motives to Flee
    • outstanding criminal charges
    • possibility of lengthy sentence
    • links to criminal organization
  • Plans for release
  • Availability of sureties
  • Potential sureties / ability to supervise / character witnesses
    • their criminal record
    • employment
    • money or property that can be pledged to the court
    • familiarity with the accused
    • familiarity with criminal record of accused
    • familiarity of accusations against accused
    • ability and willingness to monitor the accused

The Court should compare the accused's connection with the local community as well as those with another country or province.[2]

Factors "employment, links with community or with family, quality of the evidence against him, severity of the consequences of the accusation and links with other countries, along with links with a criminal organization".[3]

The accused's trustworthiness is of importance as it indicates his likelihood of appearing.[4]

A history of breaching Court Orders can be used to infer a likelihood of breaching orders in the future.[5] Breach of any type of court order is relevant, particularly in light of their recency and frequency. However, breaches alone should not be determinative.[6]

  1. R v Powers (1972), 20 C.R.N.S. 23 (Ont. S.C.)(*no link) at para 26 ("detention for the purpose of ensuring attendance in court for the trial includes consideration of such things as residence, fixed place of abode, employment or occupation, marital and family status, and if applicable, previous criminal record, proximity of close friends and relatives, character witnesses, facts relating to the allegations of the offences, personal history or vitae, would appear to become pertinent.")
  2. R v Ellahib, 2005 ABQB 565 (CanLII)
  3. Bulaman c United States of America, 2013 QCCS 2383 (CanLII) at para 35
  4. e.g. Jackson v United States of America, 2012 ONSC 2796 (CanLII) at para 32
  5. see R v Parsons, 1997 CanLII 14679 (NL CA), (1997), 161 Nfld. & P.E.I.R. 145 (N.L.C.A.), at para 54, ("the fact that an accused has breached an order in the past may well be predictive of a predisposition to flouting any future court order")
    R v General, [2007] O.J. No. 5448 (C.J.)(*no link), at para 53
    R v Cox, 2009 NSCA 15 (CanLII), (2009), 274 N.S.R. (2d) 364 (C.A.), at paras 13 and 14
    R v Barton, 2010 BCCA 163 (CanLII), [2010] BCJ No. 576 (C.A.)
  6. See Trotter, The Law of Bail in Canada, at pp.131-132
    R v Noftall, 2001 CanLII 37611 (NL SCTD) at para 21

Specific Offences and Cases

Drug Trafficking
It is recognized that in cases of drug trafficking there is a greater risk of absconding.[1]

Extradition Cases
When applying s. 515 in an extradition hearing, "the court must look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings".[2]

  1. R v Pearson, 1992 CanLII 52 (SCC), (1992), 77 CCC (3d) 124 (S.C.C.)
    Jackson v United States of America, 2012 ONSC 2796 (CanLII)
  2. United States of America v Edwards, 2010 BCCA 149 (CanLII), at para 18, per Low J.A.
    Jackson v USA, ibid. at para 14

Secondary Grounds

Under s. 515(10)(b), bail can be denied "for the protection or safety of the public ... including any substantial likelihood that the accused will...commit a criminal offence or interfere with the administration of justice".[1]

  1. See also R v Morales, 1992 CanLII 53 (SCC), (1992), 77 CCC (3d) 91
    R v Pearson, 1992 CanLII 52 (SCC)
    R v Samuelson (1953), 109 CCC 253 (Nfld. T.D.)(*no link)
    R v Groulx (1974), 17 CCC (2d) 351 (Que. S.C.)(*no link)

"Substantial Likelihood"

The Court must consider the risk of the accused committing another crime "in the context of the circumstances of the offence with which he is charged and his personality".[1]

Substantial likelihood means "substantial risk". It is not the same as proof beyond a reasonable doubt or probability.[2]

A tendency or proclivity to commit offences short of it being a "substantial likelihood" is not sufficient to deny bail.[3]

  1. See Re Keenan and The Queen, 1979 ABCA 278 (CanLII), (1979), 57 CCC (2d) 267 (Que. C.A.)
  2. R v Link 1990 ABCA 55 (CanLII)
    c.f. R v Walsh [2000] PEIJ No 63 (PEISC)(*no link)
  3. R v Noftall, 2001 CanLII 37611 (NL SCTD) at paras 23 to 24

Factors

Denial of bail can include factors such as:

  • the circumstances of the offence:
    • seriousness and nature of the offence
    • duration of the offence, number of offences
    • surrounding circumstances of the offence and offender
    • accused's potential culpability
    • involvement of firearms
    • degree of planning and deliberation
  • mental health issues (observable by witnesses or in video statement)
  • addiction issues
  • any other issues that suggest dangerousness
  • suicidal tendencies
  • consciousness of guilt
  • physical and emotional impact of the incident upon the victim
  • likelihood of lengthy sentence
  • strength of the Crown's case[1]
  • risk or harm to victim
  • accused's criminal record
  • previous outstanding release conditions
  • history of abiding by court orders and conditions

Where there is a risk the court must consider whether it can be nullified by imposing conditions. [2]

Where it is reasonably foreseeable that the accused will not comply with the conditions without monitoring, then a surety should be required.[3] If it is likely that the accused will not comply then bail should not be granted.[4]

  1. R v Baltovich, 1991 CanLII 7308 (ON CA), (1991) 68 CCC (3d) 362 (ONCA)
  2. R v Peddle, [2001] O.J. No. 2116 (S.C.)(*no link) at paras 11 to 12
  3. Peddle, ibid. at para 11
  4. Peddle, ibid. at para 11

Types of Offences

The drug trade "occurs systematically, usually within a highly sophisticated commercial setting", it is lucrative and a way of life for many and as such creates strong incentives to continue in the criminal conduct while on bail.[1]

  1. Pearson per Lamer CJ. at p. 144
    Morales per Lamer CJ. at p. 107

Tertiary Grounds

Under 515(10)(c), bail can be revoked "in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment."[1]

The key consideration is the effect of release on the confidence in the administration of justice.[2]

This ground should be considered in all circumstances of bail not simply when the offence is particularly serious.[3] Nevertheless, situations where this ground is relied upon "may not arise frequently"[4] and only in "limited circumstances".[5]

The tertiary ground is not a "residual ground" to be considered after the first two grounds have rejected.[6]

This ground "must not be interpreted narrowly or applied sparingly".[7]

If the offence is "serious or very violent", if there is "overwhelming evidence" and the victims were vulnerable, then detention will usually be ordered.[8]

  1. See also R v Hood (1992), 130 A.R. 135 (Q.B.)(*no link)
    R v Rondeau 1996 CanLII 6516 (QC CA), (1996)
    R v Koehn 1997 CanLII 2778 (BC CA)
    R v Farinacci 1993 CanLII 3385 (ON CA)
  2. R v Mordue 2006 CanLII 31720 (ON CA), (2006), 41 C.R. (6th) 259 (Ont. C.A.) at para 25
  3. R v B.S., 2007 ONCA 560 (CanLII) at paras 9 to 10
    R v LaFromboise 2005 CanLII 63758 (ON CA), (2005), 203 CCC (3d) 492 (Ont. C.A.) at para 31 ("the nature of the offence charged, by itself, cannot justify the denial of bail.")
  4. R v Hall at p. 463
  5. see R v Heyden, 2009 ONCA 494 (CanLII), (2009), 252 CCC (3d) 167 (Ont. C.A.) at para 21
    R v LaFromboise, supra at para 23
  6. R v St-Cloud, 2015 SCC 27 (CanLII)
  7. St-Cloud, ibid., at para 87
  8. St-Cloud, ibid., at para 88

Confidence of the Public

Concern should be upon the confidence of a "reasonable, informed and dispassionate public".[1] The reasonable person consists of a "reasonable member of the community is one properly informed of the philosophy of the relevant legislative provisions, Charter values, and the actual circumstances of the case". As well, they should have an awareness of the presumption of innocence, and prohibition against punishment through pre-trial custody before a fair trial.[2]

The perspective of an "excitable" or "irrational" citizen should not be taken into account.[3]

The "public" perspective is the "reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case". It should be not be treated as a "legal expert" who can appreciate the "subtleties of the various defences".[4]

Public concern and fear as well as public safety are valid considerations on the tertiary grounds.[5]

Confidence can be undermined not only by a failure to detain but also "if it orders detention where detention is not justified".[6]

  1. R v Dhillon, 2002 CanLII 45048 (ON CA), [2002] O.J. No. 345 (C.A.) at para 28
  2. R v James, 2010 ONSC 3160 (CanLII) at para 22
  3. R v White, 2007 ABQB 359 (CanLII), (2007), 221 CCC (3d) 393 (Alta. C.A.) at para 18
    R v James, supra, at para 22
  4. R v St-Cloud, 2015 SCC 27 (CanLII)
  5. R v Mordue 2006 CanLII 31720 (ON CA) at paras 21 to 24
  6. St-Cloud, supra, at para 87

Enumerated Factors

In cases where the crime is heinous and the evidence overwhelming bail must be denied to preserve the public's confidence in the administration of justice.[1] The consideration of the public's confidence in the administration of justices does not take into account "excitable" or "irrational" views of the public.[2] The perspective must be "reasonable, informed and dispassionate".[3] He must also be properly informed of the philosophy of the legislative provisions, Charter and full circumstances of the case.[4] AS well as aware of the presumption of innocence and prohibition against pre-trial punishment.[5]

None of the factors are determinative in the analysis which should look at the entire context of the circumstances.[6] The court must consider all four factors and weigh their combined effect.[7]

The four circumstances listed in s. 515(10)(c) are not exhaustive.[8]

Where the four circumstances suggest detention, it is not automatic that detention will follow. No single circumstance is determinative. It must be based on the "all the circumstances of each case" and must involve a "balancing [of] all the relevant circumstances".[9]


  1. R v Hall at para 26
    R v EWM [2006] OJ No 3654(*no link) at para 25
  2. R v White, 2007 ABQB 359 (CanLII), [2007] AJ No 608 at para 18
  3. R v Dhillon, 2002 CanLII 45048 (ON CA), [2002] OJ No 3451 (ONCA) at para 28
  4. Hall
    White at para 17,18
  5. White at para 17
  6. Mordue at para 13
    B.S. at para 10, 16
    R v James, 2010 ONSC 3160 (CanLII), [2010] OJ No 2262 per Hill J.
  7. James, ibid. at para 22
  8. R v St-Cloud, 2015 SCC 27 (CanLII) at para 87
  9. St-Cloud, ibid. at para 87

Constitutionality

This section was added after s. 515(10)(b) was found unconstitutional due to violating s. 11(e) of the Charter for vagueness.[1] the addede section 515(10)(c) was found to be constitutional.[2]

However, the portion of s. 515(10)(c) stating "on any other just cause being shown and without limiting the generality of the foregoing" was found to be unconstitutional and should be struck from the provision.[3]

  1. R v Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711
  2. R v MacDougal, 1999 BCCA 509 (CanLII)
    R v Hall, 2000 CanLII 16867 (ON CA)
  3. see Hall, 2002 SCC 64 (CanLII)

Inapplicable Grounds

A person should not be denied bail only on account the limit financial means of either the surety or the accused.[1]

  1. see R v Dyke, 2001 CanLII 37610 (NL SCTD), (2001), 203 Nfld. & P.E.I.R. 1 (N.L.S.C.), at para 47

See Also