Release With and Without Sureties and Deposits

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General Principles

Guarantees of Section 11(e)
Section 11(e) guarantees two rights. Those are the "right not to be denied bail without just cause" and "the right to bail on reasonable terms".[1]

The right to bail is a "corollary to the presumption of innocence".[2]

  1. Antic at para 67
  2. Antic, supra at para 67

Ladder Principle

The default position on all bail matters, with some exception, under s. 515(1) is for the "unconditional release on an undertaking".[1]

Where the default unconditional release does not apply, the "ladder principle" must be "strictly" followed.[2] The ladder principle states that "release is favoured at the earliest reasonable opportunity" and in consideration of the criteria of release must be done on the "least onerous grounds".[3]

Burden
Whenever the Crown seeks to impose conditions or more onerous forms of release beyond an undertaking, it must "show why this form is necessary".[4]

The burden of proof will increase where the conditions becomes more onerous upon the accused.[5]

Standard of Proof
A restrictive condition can only be imposed where "the Crown has shown it to be necessary having regard to the statutory criteria for detention".[6]

Analysis
To comply with the "ladder principle" the judge imposing conditions must reject each form of less restrictive release before they may consider any further restriction.[7] Failure to reject a lesser form of release is an error of law.[8]

Ladder Principle In Consent Releases
The principles and guidelines for bail as set out by case law "do[es] not apply strictly to consent release plans".[9]

Section 515(2) permits the judge release the accused on either an undertaking (515(2)(a)) or a recognizance with conditions (515(2)(b) to (e)).

515
...
Release on undertaking with conditions, etc.
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released

(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the 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*, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.

...
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; 2014, c. 17, s. 14; 2015, c. 13, s. 20.[annotated] [* see "Constitution", below]


CCC

An accused can be released in the following circumstances:

  • personal undertaking without conditions (515(1))
  • personal undertaking with conditions (515(2)(a))
  • recognizance with conditions and without surety or deposit (515(2)(b))
  • recognizance with conditions and with surety without deposit(515(2)(c))
  • recognizance with conditions without surety with deposit (515(2)(d))
  • recognizance with conditions with surety and deposit (515(2)(e))

These options are listed in order of escalating risk.[10]

  1. Antic at para 67
  2. Antic at para 67
  3. Antic at para 67
    R v Anoussis, at para 23
  4. Antic, supra at para 67
  5. Antic, supra at para 67
  6. Antic{{supra]}} at para 67 - emphasis added
  7. Antic, supra at para 67
  8. Antic, supra at para 67
  9. R v Antic, 2017 SCC at para 68
  10. R v O’Connor, 2015 ONSC 1256 (CanLII) at para 43

Undertaking With or Without Conditions (515(2)(a),(b))

Recognizance With Conditions and Without Surety or Deposit (515(2)(b)

A recognizance is "functionally equivalent" to cash bail.[1]

  1. Antic, supra at para 67

=Recognizance With Surety (515(2)(c))

A surety takes on the role of "civilian jailer of the accused". They are responsible to ensure the accused's attendance at court and ensure they abide by their conditions.[1] The public interest and its faith in the bail system requires them to act promptly and faithfully in their duties.[2]

Sureties
A recognizance with a surety is "one of the most onerous forms of release" and must be considered last after rejecting all other forms of release.[3]

A recognizance is "functionally equivalent" to cash bail.[4]

With Deposit (515(2)(d))

The purpose of 515(2)(d) has been described as adding "some flexibility into this situation by permitting an accused with some personal resources to gain his/her own release".[5]

Section 515(2)(d) has been read down to exclude the phrase, "with the consent of the prosecutor", allowing the judge to release the accused on cash bail.[6]

Cash Bail
Cash bail should not be imposed where the accused or their surety "have reasonably recoverable assets and are able to pledge those assets ot the satisfaction of the court to justify their release".[7] It should only be imposed in "exceptional circumstances" where "release on a recognizance with sureties is unavailable".[8]

The Amount for Cash Bail
The amount set for cash bail must be "no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate means of hte accused nad the circumstances of the case".[9]

Obligation to Inquire into Ability to Pay
Where the court imposes cash bail, the court must inquire into the accused's ability to pay. The cash bail order cannot be "set so high that it effectively amounts to a detention order".[10]


  1. R v Jacobson, 2005 CanLII 63779 (ON SC) at para 18
    Quilling v Canada (Attorney General), 2007 BCSC 1008 (CanLII) at paras 55 to 57 - discussion on history of sureties as jailers
  2. Jacobson at para 19
  3. Antic, supra at para 67
  4. Antic, supra at para 67
  5. Gary Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) at p. 248
  6. R v Saunders, 2001 BCSC 1363 (CanLII)
  7. Antic, supra at para 67
  8. Antic, supra at para 67
  9. Antic, supra at para 67
  10. Antic, supra at para 67

With Surety and Deposit (515(2)(e))

The circumstances described in s. 515(2)(e) is the only case where the accused can be released with both a surety and cash deposit.[1] This form of release is designed to be the most secure as it requires both forms of commitment.[2]

Constitution
The part of this section that reads "if the 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" has been found constitutional and does not s. 11(e) of the Charter.[3]

Assignment of Funds
The funds held as cash deposit for bail cannot be assigned to legal counsel pay for fees.[4]

  1. R v Folkes, 2007 ABQB 624 (CanLII), at para 17
  2. Folkes at para 27
  3. R v Antic, 2017 SCC 27 (CanLII)
    c.f. Folkes at para 40
  4. R v Webster, 1994 CanLII 9166 (AB QB)

Procedure

It is not always necessary to have the surety to appear in court.[1]

The surety and accused continue to be bound by the recognizance after every court appearance until the completion of the matter.[2]

  1. R v Brooks, 2001 CanLII 28401 (ON SC)
  2. see s. 763, 764

Amount of Deposit

Under s. 515(2)(d), a cash bail can be required from the accused. It may only be returned to the accused who deposited.

The "test for financial security is whether the pledge will bind the conscience of the surety and the accused".[1] This is irrespective of whether the amount would cause "mere hardship and loss" or "total financial calamity".[2]

The constitutional right to bail requires that the amount of security needed for bail should not "be set so high as to amount to a detention order".[3] The bail judge has an obligation to make inquiries "into the ability of the accused to pay".[4]

  1. R v Gaete, 2011 CanLII 28500 (ON SC) at para 32
    R v MacDonald, 2011 NSCA 46 (CanLII), at para 25
  2. Gaete at para 32
  3. R v Saunter, 2006 ABQB 808 (CanLII)
    R v Brost, 2012 ABQB 696 (CanLII) at para 40
  4. R v Brost at para 40

Surety

A surety has the obligations of a jailer in the community and is responsible for ensuring that the accused appears in court when required and abides by his conditions. [1] The surety must exercise "utmost due diligence" and take "all reasonable steps" to live up to their responsibilities.[2]

It will usually be a relative, friend, or neighbour of the accused. Generally, it should not be someone who is:

  • someone with a criminal record,
  • a co-accused in a outstanding charge, or has unrelated criminal charges
  • a person not resident in the jurisdiction,
  • underage
  • acting as a surety for someone else,
  • receiving financial compensation for being a surety

The surety is to render the accused back into the custody of the court once he has lost ability or desire to control the accused compliance with the conditions of release.

Responsibility of sureties
764 (1) Where an accused is bound by recognizance to appear for trial, his arraignment or conviction does not discharge the recognizance, but it continues to bind him and his sureties, if any, for his appearance until he is discharged or sentenced, as the case may be.
Committal or new sureties
(2) Notwithstanding subsection (1), the court, justice or provincial court judge may commit an accused to prison or may require him to furnish new or additional sureties for his appearance until he is discharged or sentenced, as the case may be.
Effect of committal
(3) The sureties of an accused who is bound by recognizance to appear for trial are discharged if he is committed to prison pursuant to subsection (2).
Endorsement on recognizance
(4) The provisions of section 763 and subsections (1) to (3) of this section shall be endorsed on any recognizance entered into pursuant to this Act.
R.S., 1985, c. C-46, s. 764; R.S., 1985, c. 27 (1st Supp.), s. 203.


See R v Scosky (1955) 114 CCC 294(*no link)

Rendering Surety

Where a surety no longer wishes to be responsible as a surety for the accused, he may render surety under s. 766(1) and 767 to have the accused rendered into custody thus relieving him of his obligations.

The surety ceases to be bound once the accused in committed into custody by s. 764(2).[3]

Render of accused by sureties
766. (1) A surety for a person who is bound by recognizance to appear may, by an application in writing to a court, justice or provincial court judge, apply to be relieved of his obligation under the recognizance, and the court, justice or provincial court judge shall thereupon issue an order in writing for committal of that person to the prison nearest to the place where he was, under the recognizance, bound to appear.
Arrest
(2) An order under subsection (1) shall be given to the surety and on receipt thereof he or any peace officer may arrest the person named in the order and deliver that person with the order to the keeper of the prison named therein, and the keeper shall receive and imprison that person until he is discharged according to law.
Certificate and entry of render
(3) Where a court, justice or provincial court judge issues an order under subsection (1) and receives from the sheriff a certificate that the person named in the order has been committed to prison pursuant to subsection (2), the court, justice or provincial court judge shall order an entry of the committal to be endorsed on the recognizance.
Discharge of sureties
(4) An endorsement under subsection (3) vacates the recognizance and discharges the sureties.
R.S., 1985, c. C-46, s. 766; R.S., 1985, c. 27 (1st Supp.), s. 203.


Render of accused in court by sureties
767. A surety for a person who is bound by recognizance to appear may bring that person into the court at which he is required to appear at any time during the sittings thereof and before his trial and the surety may discharge his obligation under the recognizance by giving that person into the custody of the court, and the court shall thereupon commit that person to prison until he is discharged according to law.
R.S., c. C-34, s. 701.


CCC

When a surety renders under s. 766 or 767 and the accused is then committed to prison under s. 767(2), only then is the recognizance vacated and the surety completely discharged.[4] In this circumstance, s. 767.1 does not apply and would not permit re-release with a new surety under the same terms.[5]

Application of judicial interim release provisions
769. Where a surety for a person has rendered him into custody and that person has been committed to prison, the provisions of Parts XVI, XXI and XXVII relating to judicial interim release apply, with such modifications as the circumstances require, in respect of him and he shall forthwith be taken before a justice or judge as an accused charged with an offence or as an appellant, as the case may be, for the purposes of those provisions.
R.S., c. C-34, s. 703; R.S., c. 2(2nd Supp.), s. 14.


CCC

After the surety has rendered and the accused is taken back into custody, s. 769 requires a new bail hearing for any future release.[6]


  1. R v Jacobson (2005), 2005 CanLII 63779 (ON SC) at para 18
    R v Tymchyshyn, 2015 MBQB 23 (CanLII) at para 34
  2. Jacobson, supra at para 18
    Tymchyshyn at para 34
  3. s. 764(3)
  4. R v Mott, 2013 ONSC 1768 (CanLII) at para 46
  5. Mott at para 46
  6. Mott at para 46

Change of Surety

Where a surety no longer wishes to be responsible as a surety for the accused and there is a suitable substitution available, the surety will render surety under s. 766(1) and 767, but rather than render the accused into custody, the court may substitute the previous surety with a new one under s. 767.1. The new surety is in place once he has signed the recognizance.

Substitution of surety
767.1 (1) Notwithstanding subsection 766(1) and section 767, where a surety for a person who is bound by a recognizance has rendered the person into the custody of a court pursuant to section 767 or applies to be relieved of his obligation under the recognizance pursuant to subsection 766(1), the court, justice or provincial court judge, as the case may be, may, instead of committing or issuing an order for the committal of the person to prison, substitute any other suitable person for the surety under the recognizance.
Signing of recognizance by new sureties
(2) Where a person substituted for a surety under a recognizance pursuant to subsection (1) signs the recognizance, the original surety is discharged, but the recognizance and the order for judicial interim release pursuant to which the recognizance was entered into are not otherwise affected.
R.S., 1985, c. 27 (1st Supp.), s. 167.


CCC


See Also