Grounds for Detention

This page was last substantively updated or reviewed June 2021. (Rev. # 95660)

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General Principles

Section 11(e) of the Charter of Rights and Freedoms requires that any basis for the denial of bail is only be permitted where (1) it occurs in a "narrow set of circumstances" and (2) the denial is "necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to the bail system."

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
[omitted (1), (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) and (9)]

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.

[omitted (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.

– CCC (CanLII), (DOJ)

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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.

Due to the use of the term "including" in reference to the suggested factors. No listed factors are dispositive of any determination on bail.

Prohibited Purpose

There is an accepted prohibition against using remand as a means to punish accused persons prior to a fair trial.

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. The primary consideration was to secure attendance at trial.

Factors considered would include the flight risk posed by the accused.

Primary Grounds: Flight Risk

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.

Anyone charged with a serious criminal offence has some likelihood of choosing to flee. This alone is not enough to justify detention.

Factors

This can include factors such as:

• 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 the 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.

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."

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

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

Prohibited Factors

The seriousness of the offence is not a valid consideration for the primary grounds.

Specific Offences and Cases

Drug Trafficking

It is recognized that in cases of drug trafficking there is a greater risk of absconding.

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."

Secondary Grounds: Risk of Re-Offence

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."

This ground can be assessed by considering the following questions:

1. If released, is there a risk the accused will commit an offence?
2. Does the magnitude of that risk amount to a “substantial likelihood”?
3. Does that risk constitute a danger to public safety? and
4. Can that danger to public safety not be prevented or reduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties or cash bail)?

"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."

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

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

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
• 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.

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

Non-Factors

The existence of health risks to the persons detained, such as during a pandemic, is generally not a factor that is considered on detention for secondary grounds unless it goes to the accused willingness to comply with conditions.

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.

Tertiary Grounds: Public Confidence

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."

The key consideration is the effect of release on the confidence in the administration of justice. The release plan must be suitable to maintain public confidence.

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

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

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

Seriousness of the Offence

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

This consideration should include the maximum and minimum penalties permitted upon conviction.

Strength of the Crown case

The consideration of the strength of the crown's case includes consideration of the "quality, and to some extent, the quantity of the evidence available to the Crown to prove its case." This should also include the "defence advanced by the accused."

Surrounding Circumstances

The factor concerning the circumstances surrounding the commission of the offence considers the "nature of the offence", including the presence of violence, the context, the involvement of others, the accused's role, and the vulnerability of the victim.

The factor can also include consideration of the accused's personal circumstances.

Confidence of the Public

The concern should be upon the confidence of a "reasonable, informed and dispassionate public." 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 the prohibition against punishment through pre-trial custody before a fair trial.

The perspective of an "excitable" or "irrational" citizen should not be taken into account. The public's "negative and even emotional attitude" towards crime including powerful criminals is not to be taken into account.

Who is the "Public"

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 not be treated as a "legal expert" who can appreciate the "subtleties of the various defences."

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

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

A "reasonable member of the community" should understand and appreciate:

• the importance of the presumption of innocence and assume accused are treated as such;
• the significance of the liberty of the subject;
• that granting of bail must be assessed on a case-by-case basis and that there are "no offences for which bail is automatically prohibited"
• that "the vast majority of those who are charged with criminal offences are granted bail and do not abscond or commit further offences while on release"
• that waiting for trial may last many months and "can have a significantly adverse affect on the life of the accused person and her or his family – resulting, for example, in loss of employment or interruption of education"
• that "[t]he poor may be more likely to be detained than those accused persons with greater financial resources."
• that "Pre-trial detention can significantly complicate the ability of an accused person to prepare their defence"
• that release should be assessed "in light of their antecedents and the support available to them from family, friends and the broader community"

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. The consideration of the public's confidence in the administration of justices does not take into account "excitable" or "irrational" views of the public. The perspective must be "reasonable, informed and dispassionate." They must also be properly informed of the philosophy of the legislative provisions, Charter and full circumstances of the case. And they must be aware of the presumption of innocence and prohibition against pre-trial punishment.

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

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

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."

Constitutionality

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

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.

Types of Offences

Gun Offences

The presence of guns or weapons do not automatically satisfy the tertiary grounds on the basis of public safety.

Inapplicable Grounds

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

See Also

• Bail (Cases)
• Grounds for Release (Until December 18, 2019)