Release With and Without Sureties and Deposits (Until December 18, 2019)

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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. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII), per Wagner J, at para 67
  2. Antic, ibid., at para 67

Ladder Principle

Bail ladder.png

The common law "ladder principle" of bail was codified in s. 515(3). It prohibits the imposition of a "more onerous form of release unless the Crown shows why a less onerous form is inappropriate".[1]

Default Release

The default position on all bail matters, with some exception, under s. 515(1) is for the "unconditional release on an undertaking".[2]

Strict Application of Ladder Principle

Where the default unconditional release does not apply, the "ladder principle" must be "strictly" followed.[3]

Must Release at Earliest Reasonable Opportunity

The ladder principle also states that "release is favoured at the earliest reasonable opportunity".[4]

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".[5]

The burden of proof will increase where the conditions becomes more onerous upon the accused.[6]

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".[7]

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.[8] Failure to reject a lesser form of release is an error of law.[9]

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".[10]

The judge has discretion to reject a joint proposal on release, however should not "routinely second-guess" them.[11]

  1. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII), per Wagner J, at para 47 ("The ladder principle 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. […]")
    R v Anoussis, 2008 QCCQ 8100 (CanLII), per Healy J, at para 23
  2. Antic, ibid., at para 67
  3. Antic, ibid., at para 67 ("This principle must be adhered to strictly.")
  4. Antic, supra, at para 67
  5. Antic, supra, at para 67
  6. Antic, supra, at para 67
  7. Antic, supra, at para 67 - emphasis added
  8. Antic, supra, at para 67
  9. Antic, supra, at para 67
  10. Antic, supra, at para 68
  11. Antic, supra, at para 68

Enabling Release Conditions

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; 2018, c. 16, s. 218.
[annotation(s) added] [* 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.[1]

  1. R v O’Connor, 2015 ONSC 1256 (CanLII), per Price J, 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))

Cash bail should only be applied in "exceptional circumstances" where a surety is unavailable.[5]

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".[6]

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.[7]

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 to the satisfaction of the court to justify their release".[8] It should only be imposed in "exceptional circumstances" where "release on a recognizance with sureties is unavailable".[9]

Cash bail is considered one of the "most onerous" rungs of the ladder.[10]

Cash bail is considered "merely a limited alternative to a pledge" which should not be used where the accused or sureties have "reasonably recoverable assets to pledge".[11]

Amount of Cash

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 the accused nad the circumstances of the case".[12] It should not be set so high as to effectively amount to a detention order.[13]

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".[14]

  1. R v Jacobson, 2005 CanLII 63779 (ON SC), per GP Smith J, at para 18
    Quilling v Canada (Attorney General), 2007 BCSC 1008 (CanLII), per Parrett J, at paras 55 to 57 - discussion on history of sureties as jailers
  2. Jacobson, ibid., at para 19
  3. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII), per Wagner J, at para 67
  4. Antic, supra, at para 67
  5. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII), per Wagner J, at para 67 ("cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.")
  6. Gary Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999), at p. 248
  7. R v Saunders, 2001 BCSC 1363 (CanLII), per MacKinnon J
  8. Antic, supra, at para 67
  9. Antic, supra, at para 67
  10. Antic, ibid., at para 48
  11. Antic, ibid., at para 4
  12. Antic, ibid., at para 67
  13. Antic, ibid., at para 67
  14. Antic, ibid., at paras 56, h41w467

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), per Marceau J, at para 17
  2. Folkes, ibid., at para 27
  3. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII), per Wagner J
    cf. Folkes, supra, at para 40
  4. R v Webster, 1994 CanLII 9166 (AB QB), per Veit J

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]

Naming Surety on Order

515
...

Power of justice to name sureties in order

(2.1) Where, pursuant to subsection (2) or any other provision of this Act, a justice, judge or court orders that an accused be released on his entering into a recognizance with sureties, the justice, judge or court may, in the order, name particular persons as sureties.
...

CCC


Video Appearance Permitted

515
...

Alternative to physical presence

(2.2) Where, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the appearance shall be by actual physical attendance of the accused but the justice may, subject to subsection (2.3), allow the accused to appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the justice.

Where consent required

(2.3) The consent of the prosecutor and the accused is required for the purposes of an appearance if the evidence of a witness is to be taken at the appearance and the accused cannot appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication.

Idem

(3) 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.
...

CCC


  1. R v Brooks, 2001 CanLII 28401 (ON SC), per Hill J
  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), per Corbett J, at para 32
    R v MacDonald, 2011 NSCA 46 (CanLII), per Bryson JA, at para 25
  2. Gaete, supra, at para 32
  3. R v Saunter, 2006 ABQB 808 (CanLII), per Veit J
    R v Brost, 2012 ABQB 696 (CanLII), per Hughes J, at para 40
  4. Brost, ibid., 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.

CCC

See R v Scosky (1955) 114 CCC 294, 1955 CanLII 463 (BC SC), per Sasrget J

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.

CCC

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]

Rights of surety preserved

768 Nothing in this Part limits or restricts any right that a surety has of taking and giving into custody any person for whom, under a recognizance, he is a surety.
R.S., c. C-34, s. 702.

CCC

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), per GP Smith J, at para 18
    R v Tymchyshyn, 2015 MBQB 23 (CanLII), per Bond J, at para 34
  2. Jacobson, supra, at para 18
    Tymchyshyn, supra, at para 34
  3. s. 764(3)
  4. R v Mott, 2013 ONSC 1768 (CanLII), per Gauthier J, at para 46
  5. Mott, ibid., at para 46
  6. Mott, supra, 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

Continuation of Recognizance

Recognizance binding

763 Where a person is bound by recognizance to appear before a court, justice or provincial court judge for any purpose and the session or sittings of that court or the proceedings are adjourned or an order is made changing the place of trial, that person and his sureties continue to be bound by the recognizance in like manner as if it had been entered into with relation to the resumed proceedings or the trial at the time and place at which the proceedings are ordered to be resumed or the trial is ordered to be held.
R.S., 1985, c. C-46, s. 763; R.S., 1985, c. 27 (1st Supp.), s. 203.

CCC

Effect of Arrest on New Charges

An arrest on new charges does not affect the recognizance, including the obligations of the surety:

Effect of subsequent arrest

765 Where an accused is bound by recognizance to appear for trial, his arrest on another charge does not vacate 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, in respect of the offence to which the recognizance relates.
R.S., c. C-34, s. 699.

CCC

See Also