Mise en liberté provisoire

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• < Libération provisoire judiciaire

Introduction

Where a person is held in custody by police who decide not to release them, the accused must be brought before a judge to determine if they should be released on bail.

Meaning of Bail

Bail is a form of contract between the crown and the surety or accused, where the crown releases the accused in exchange for the guarantee that the accused will abide by the terms of release.

Pre-trial custody affects the "mental, social, and physical life" of the accused and his family as well as impacting the trial itself.

Burden to Detain

Under s. 515(1), a judge or justice must release a person held in custody on an undertaking without conditions unless the Crown can show cause to do otherwise.

It is on the Crown to show why anything other than unconditional release is "necessary." The burden increases with an increase in the restrictiveness of the terms of release.

Power to Expedite

Where the court sees fit, s. 526 permits the judge to "give directions for expediting any proceedings in respect of the accused".

Duty of Surety

When a person is released on a recognizance under s. 515, the accused and his surety will continue to be bound by the terms of the recognizance after each appearance.

Power to Remand and Order Attedance

A person who is in police custody or in the custody of a correctional facility can be ordered to attend court and ordered to be remanded into custody under s. 527.

History

Traditionally, tracing back to English common law, the "sole purpose" of bail was to "ensure that accused persons who were released would attend their trials."

Canadian bail originates from 1869 legislation that made it discretionary for all offences. There was little guidance prior to 1972 as to the standard to meet.

Prior to 1972 the bail system was primarily based on a cash bail. It was also "highly discretionary" with a presumption of detention unless bail was applied for. The only forms of release was the release (a) by recognizance with surety or sureties (b) release on cash deposit, or (c) release on entering a recognizance.

Bail Reform Act 1972

The modern regime of bail arose from the 1972 Bail Reform Act, S.C. 1970-71-72, c. 37, which included the addition of s. 457 (2) (now s. 515 (2)).

The Bail Reform Act was designed to "do away with the requirement ... to deposit money unless [the accused was] not normally resident in or near the jurisdiction in which they were in custody." It created a system where "[b]ail must be granted unless pre-trial detention is justified by the prosecution."

The Act was meant to Codify what is referred to as the "ladder principle" that is found in s. 515(1) to (3).

Subsequent Reforms

In 1975, the Criminal Law Amendment Act, S.C. 1974-75-76, c. 93, added s. 515(2)(c.1) (now s. 515(2)(d)), which allows an accused to be released with consent by entering a recognizance without a surety by depositing money or property as security.

Enactment of the Charter

With the enactment of the Charter, the statutory right to bail became a constitutional right.

Bill C-75 Revamp

On December 18, 2019, the bail provisions of the Code were changed as follows:

• removal of a Promise to Appear method of compelling attendance
• removal of the police power to issue a Recognizance
• the undertaking is now the only method of release, replacing the promise to appear and recognizance
• there will be a Release Order as the main form of judicial release.

Appearance notices and summons are still available.

Charter Right to Bail (s. 11(e))

Section 11(e) of the Charter of Rights and Freedoms states that "Any person charged with an offence has the right ... not to be denied reasonable bail without just cause." This means that the accused cannot be denied bail without reason and only where necessary.

The rights under s. 11(e)du Charte canadienne des droits et libertés consist of two aspects:

1. the right not to be denied bail without "just cause" and
2. the right to "reasonable bail".

The meaning of "just cause" relates to the circumstances in which it is constitutionally permissible to deny bail as well as the statutory grounds to justify detention enumerated under s. 515(10).

Default Position

The "default position in most cases" should be release. That release is presumed to be unconditional.

Presumption of Innocence

The right to bail under s. 11(e) of the Charter is a corollary to the presumption of innocence.

Method of Release

Section 515 permits a justice to release an accused who is brought to him:

Ordonnance de mise en liberté sans conditions

515 (1) Sous réserve des autres dispositions du présent article, lorsqu’un prévenu inculpé d’une infraction autre qu’une infraction mentionnée à l’article 469 [Infractions pertinentes d'une compétence exclusive] est conduit devant un juge de paix, celui-ci, sauf si un plaidoyer de culpabilité du prévenu est accepté, rend une ordonnance de mise en liberté sans conditions à l’égard de cette infraction, à moins que le poursuivant, ayant eu la possibilité de le faire, ne fasse valoir à l’égard de cette infraction des motifs justifiant la détention du prévenu sous garde ou des motifs justifiant de rendre une ordonnance aux termes de toute autre disposition du présent article. [omis (2), (2.01), (2.02), (2.03), (2.1), (2.2), (2.3), (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3), (5), (6), (6.1), (7), (8), (9), (9.1), (10), (11), (12), (13) and (14)]
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; 2019, c. 25, s. 225; 2021, c. 27, s. 4; 2022, c. 17, s. 32(E); 2023, c. 7, s. 1.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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An accused may be released by any one of these release mechanisms:

• appearance notice
• summons
• undertaking

Taken Before a Justice

In the context of s. 515(1), the phrase "taken before a justice" refers to someone who is in custody following arrest. This provision has no application and cannot be used to object to the release of someone appearing on an appearance notice.

A person who appears on a s. 527 order is not considered to have been "taken before a justice" within the meaning of s. 515(1).

Ladder Principle

Part XVI of the Code on bail sets out a structure of bail known as the "ladder principle." This principle dictates that "release is favoured at the earliest reasonable opportunity" and "on the least onerous grounds" in light of the "risk of flight and public protection." The analysis should consider in order. First, whether to release on undertaking with conditions under s. 515(1). If this is not sufficient to "secure the aims of Part XVI" then the Crown "may seek to show cause for other, non-monetary conditions" under s. 515(2)(a). Third, as a last resort, the release should consider a "requirement for cash by deposit or recognizance" under s. 515(3). A cash condition can come in different forms under s. 515(2)(b) through (e), which should be viewed in favour of the least onerous conditions.

Antic Principles

The case of Antic re-established the principles and guidelines required for bail that are modelled around the "ladder principle."

The principles include:

• the guarantee under s. 11(e) not to be denied bail without just cause and release must be one "reasonable terms".
• absent one or more exceptions, unconditional release is the default position
• release should be at the earliest possible opportunity on the least onerous grounds
• where the crown requests conditions, it must show that the conditions are necessary.
• the more restrictive the term the greater the onus of proof.
• before a judge can order some form of restriction, they must explicitly reject all lesser forms of restriction.

Each rung of the ladder must be considered in order. A more restrictive form of release cannot be considered until a lesser form is rejected.

The ladder principle must be strictly adhered to.

A recognizance with surety is one of the most restrictive forms of release.

A recognizance is functionally equivalent to cash bail.

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

Consent Release

Where the Crown and accused agree to a release plan a the court should not "second-guess" the joint proposal, but retains the ability to reject one.

The "Antic principles" do not apply strictly when the release is by consent.

Duration of Release Mechanism

Period for which appearance notice, etc., continues in force

523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)], the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3) [liberté de l'accusé pour infractions à l'art. 469], until his trial is completed; or

(b) in any other case,

(i) until his trial is completed, and

(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 [Pt. XXI — appels — définitions] is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

When new information is received

(1.1) If an accused is charged with an offence and a new information, charging the same offence or an included offence, is received while the accused is subject to an order for detention, release order, appearance notice, summons or undertaking, section 507 [procédure judiciaire recevant une information] or 508 [justice to hear informant and witness], as the case may be, does not apply in respect of the new information and the order for detention, release order, appearance notice, summons or undertaking applies in respect of the new information.

When direct indictment preferred

(1.2) If an accused is charged with an offence, and an indictment is preferred under section 577 [actes d'accusation directs] charging the same offence or an included offence while the accused is subject to an order for detention, release order, appearance notice, summons or undertaking, the order for detention, release order, appearance notice, summons or undertaking applies in respect of the indictment.
[omis (2)]

Provisions applicable to proceedings under subsection (2)

(3) The provisions of sections 517 [Ordonnance ordonnant que des éléments ne soient pas publiés pendant une période déterminée], 518 [Inquiry to be made by justice and evidence] and 519 [libération de l'accusé après une audience de justification] apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2) [pouvoir d'annuler les ordonnances précédentes], except that subsection 518(2) [libération sur plaidoyer de culpabilité en attendant la sentence] does not apply in respect of an accused who is charged with an offence listed in section 469 [Infractions pertinentes d'une compétence exclusive].
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.

[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Consent Variation of Release Order

Variation of release order with consent

519.1 A release order under which an accused has been released under section 515 [dispositions relatives à la mise en liberté provisoire par voie judiciaire] may be varied with the written consent of the accused, prosecutor and any sureties. The order so varied is considered to be a release order under section 515 [dispositions relatives à la mise en liberté provisoire par voie judiciaire].

2019, c. 25, s. 229.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Irregularities or Variance in Release Mechanism

Irregularity or variance not to affect validity

546. The validity of any proceeding at or subsequent to a preliminary inquiry is not affected by

(a) any irregularity or defect in the substance or form of the summons or warrant;

(b) any variance between the charge set out in the summons or warrant and the charge set out in the information; or

(c) any variance between the charge set out in the summons, warrant or information and the evidence adduced by the prosecution at the inquiry.

R.S., c. C-34, s. 473.

– CCC (CanLII), (Jus.)

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Adjournment if accused misled

547 Where it appears to the justice that the accused has been deceived or misled by any irregularity, defect or variance mentioned in section 546 [irrégularité ou divergence n'affectant pas la validité], he may adjourn the inquiry and may remand the accused or grant him interim release in accordance with Part XVI [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)].
R.S., c. C-34, s. 474; 1974-75-76, c. 93, s. 59.1.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Release on Section 469 Offences

• Release on Section 469 Offences

Consideration of Victim's Safety and Security

When ordering the release of a detainee, the justice is required to state on the record that they have considered the "safety and security" of all victims in the case.

515
[omis (1), (2), (2.01), (2.02), (2.03), (2.1), (2.2), (2.3), (3), (4), (4.1), (4.11), (4.2), (4.3), (5), (6), (6.1), (7), (8), (9), (9.1), (10), (11) and (12)]

Victim’s and community’s safety and security

(13) A justice who makes an order under this section shall include in the record of the proceedings a statement that the justice considered the safety and security of every victim of the offence and the safety and security of the community when making the order.

Aboriginal accused or vulnerable populations

(13.1) A justice who makes an order under this section shall include in the record of proceedings a statement that sets out both how they determined whether the accused is an accused referred to in section 493.2 and their determination. If the justice determines that the accused is an accused referred to in section 493.2 , they shall also include a statement indicating how they considered their particular circumstances, as required under that section.
[omis (14)]
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; 2019, c. 25, s. 225; 2021, c. 27, s. 4; 2022, c. 17, s. 32(E) 2023, c. 7, s. 1; 2023, c. 30, s. 1.

– CCC (CanLII), (Jus.)

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Topics

• Release by Police on Undertaking
• Continued Detention After Appearing Before a Justice
• Bail Hearings
  • Bail Hearing Evidence
• Grounds for Detention
• Order of Detention
• Release With and Without Sureties and Deposits
• Terms of Release
• Release on Section 469 Offences
• Breach of Release Conditions
• Revoking, Terminating, or Replacing Bail or Remand Orders
• Bail Pending Appeal
• Bail Review
• Bail for Young Accused

See Also

• Judicial Interim Release (Until December 18, 2019)
• Compelling the Accused to Attend Court
• Bail (Cases)
• Bail Hearing (Model Examination)
• Out of Province Arrest Warrants