Criminal Law Notebook

Grounds for Detention

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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".[1]

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.

– CCC

Note up: 515(10)

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.[2]

Due to the use of the term "including" in reference to the suggested factors. No listed factors are dispositive of any determination on bail.[3]

Prohibited Purpose

There is an accepted prohibition against using remand as a means to punish accused persons prior to a fair trial.[4]

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.[5] The primary consideration was to secure attendance at trial.[6]

Factors considered would include the flight risk posed by the accused.[7]

  1. ↑ R v Antic, 2017 SCC 27 (CanLII), , [2017] 1 SCR 509, per Wagner J, at para 40
    R v Pearson, 1992 CanLII 52 (SCC), , [1992] 3 SCR 665, per Lamer CJ at p 693
  2. ↑ see Judicial Interim Release#Reverse Onus
  3. ↑ R v Manasseri, 2017 ONCA 226 (CanLII), per Watt JA, at para 91
    R v St Cloud, 2015 SCC 27 (CanLII), per Wagner J, at para 68
  4. ↑ R v James, 2010 ONSC 3160 (CanLII), per Hill J, at para 22
  5. ↑ R v Lagus, 1964 CanLII 391 (SK QB), per MacPherson J, at para 9
  6. ↑ Lagus, supra, at para 9
  7. ↑ R v Gottfriedson, 1906 CanLII 96 (BC SC), (1906), 10 CCC 239 (B.C. Co. Ct.), per Bole J
    R v Fortier, 1902 CanLII 119 (QC CA), (1902), 6 CCC 191 (Que. K.B.), per Wurtele JA

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.[1]

  1. ↑ R v Falls, [2004] OJ No 5870(*no CanLII links) , per Nordheimer J

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 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.[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 CanLII 1411 (ON SC), (1972), 20 C.R.N.S. 23 (Ont. S.C.), per Lerner J, 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), per Wittmann J
  3. ↑ Bulaman c United States of America, 2013 QCCS 2383 (CanLII), per Cohen J , at para 35
  4. ↑ e.g. Jackson v United States of America, 2012 ONSC 2796 (CanLII), per Thorburn J, at para 32
  5. ↑ see R v Parsons, 1997 CanLII 14679 (NL CA), , (1997), 161 Nfld. & P.E.I.R. 145 (NLCA), per Green JA, 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 ONCJ 693 (CanLII), , [2007] OJ No 5448 (C.J.), per Bourque J, at para 53
    R v Cox, 2009 NSCA 15 (CanLII), , (2009), 274 NSR (2d) 364 (C.A.), per Fichaud JA, at paras 13 and 14
    R v Barton, 2010 BCCA 163 (CanLII), , [2010] BCJ No. 576 (CA), per Kirkpatrick JA
  6. ↑ See Trotter, The Law of Bail in Canada, at pp. 131-132
    R v Noftall, 2001 CanLII 37611 (NL SCTD), per Rowe J, at para 21

Prohibited Factors

The seriousness of the offence is not a valid consideration for the primary grounds.[1]

  1. ↑ R v Prince, [1998] OJ No 3727 (ONSC)(*no CanLII links)

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), , 77 CCC (3d) 124, per Lamer CJ
    Jackson v United States of America, 2012 ONSC 2796 (CanLII), per Thorburn J
  2. ↑ United States of America v Edwards, 2010 BCCA 149 (CanLII), per Low JA, at para 18
    Jackson v USA, ibid., at para 14

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".[1]

This ground can be assessed by considering the following questions:[2]

  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)?
  1. ↑ See also R v Morales, 1992 CanLII 53 (SCC), , (1992), 77 CCC (3d) 91, per Lamer CJ
    R v Pearson, 1992 CanLII 52 (SCC), per Lamer CJ
    R v Samuelson, 1953 CanLII 454 (NL SC), (1953), 109 CCC 253 (Nfld. T.D.), per Winter J
    R v Groulx, 1974 CanLII 1620 (QC CS), (1974), 17 CCC (2d) 351 (Que. S.C.), per Chevalier J
  2. ↑ R v Abdel-Rahman, 2010 BCSC 189 (CanLII), per Halfyward J
    R v Duncan, 2020 BCSC 590 (CanLII), per Kent J, at para 19

"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 balance of 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, per McGillivray JA
  2. ↑ R v Link, 1990 ABCA 55 (CanLII), per Harradence JA
    cf. R v Walsh, [2000] PEIJ No 63 (PEISC)(*no CanLII links)
  3. ↑ R v Noftall, 2001 CanLII 37611 (NL SCTD), per Rowe J, 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), per Doherty JA
  2. ↑ R v Peddle, [2001] OJ No 2116 (S.C.)(*no CanLII links) , at paras 11 to 12
  3. ↑ Peddle, ibid., at para 11
  4. ↑ Peddle, ibid., at para 11

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.[1]

  1. ↑ R v CKT, 2020 ABQB 261 (CanLII), per Lema J, at paras 6 to 7 ("...while the pandemic is undeniably an unprecedented and globe-shaking phenomenon, it is not a factor in the secondary-ground exercise i.e. gauging whether detention is necessary to protect the public, with one exception ... The exception is where Covid-19 concerns bear on an accused’s willingness to comply with release conditions, as some cases have found. If the argument is narrower (as here) i.e. anchored solely on the accused’s concerns (with no spillover effect on “compliance attitude” and thus on public protection), it does not achieve lift-off. It instead seeks to introduce a “protection of the accused” element i.e. to rewrite the secondary ground.")

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: 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."[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]

  1. ↑ See also R v Hood (1992), 130 A.R. 135 (Q.B.)(*no CanLII links)
    R v Rondeau, 1996 CanLII 6516 (QC CA), per Proulx JA
    R v Koehn, 1997 CanLII 2778 (BC CA), per Hall JA
    R v Farinacci, 1993 CanLII 3385 (ON CA), per Arbour JA
  2. ↑ R v Mordue, 2006 CanLII 31720 (ON CA), , (2006), 41 CR (6th) 259 (Ont. C.A.), per Juriansz JA, at para 25
  3. ↑ R v BS, 2007 ONCA 560 (CanLII), per curiam, at paras 9 to 10
    R v LaFromboise, 2005 CanLII 63758 (ON CA), , (2005), 203 CCC (3d) 492 (Ont. C.A.), per Cronk JA, at para 31 ("the nature of the offence charged, by itself, cannot justify the denial of bail.")
  4. ↑ R v Hall, 2002 SCC 64 (CanLII), per McLachlin CJ (5:4), at p. 463
  5. ↑ see R v Heyden, 2009 ONCA 494 (CanLII), , (2009), 252 CCC (3d) 167 (Ont. C.A.), per curiam (3:0), at para 21
    LaFromboise, supra, at para 23
  6. ↑ R v St-Cloud, 2015 SCC 27 (CanLII), per Wagner J (7:0)
  7. ↑ St-Cloud, ibid., at para 87

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.[1]

This consideration should include the maximum and minimum penalties permitted upon convicition.[2]

  1. ↑ R v St-Cloud, 2015 SCC 27 (CanLII), per Wagner J (7:0), at para 88
  2. ↑ R v Manasseri, 2017 ONCA 226 (CanLII), per Watt JA, at para 98
    St-Cloud, ibid., at para 60

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."[1] This should also include the "defence advanced by the accused".[2]

  1. ↑ R v Manasseri, 2017 ONCA 226 (CanLII), per Watt JA, at para 97
  2. ↑ Manasseri, ibid., at para 97
    St-Cloud, supra, at paras 58 to 59

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.[1]

The factor can also include consideration of the accused's personal circumstances.[2]

  1. ↑ R v Manasseri, 2017 ONCA 226 (CanLII), per Watt JA, at para 99
    R v St-Cloud, 2015 SCC 27 (CanLII), per Wagner J (7:0), at para 61
  2. ↑ Manasseri, supra, at para 99
    St-Cloud, supra, at para 71

Confidence of the Public

The 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 the 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]

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 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] OJ No 345 (C.A.), per Goudge JA, at para 28
  2. ↑ R v James, 2010 ONSC 3160 (CanLII), per Hill J, at para 22
  3. ↑ R v White, 2007 ABQB 359 (CanLII), , (2007), 221 CCC (3d) 393 (Alta. C.A.), per Brooker JA, at para 18
    James, supra, at para 22
  4. ↑ R v St-Cloud, 2015 SCC 27 (CanLII), per Wagner J, at paras 74 and 79
    R v Hall, 2002 SCC 64 (CanLII), per McLachlin CJ, at para 41
  5. ↑ R v Mordue, 2006 CanLII 31720 (ON CA), per Juriansz JA, 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, 2002 SCC 64 (CanLII), per McLachlin CJ, at para 26
    R v EWM, 2006 CanLII 31720 (ON CA), , [2006] OJ No 3654, per Juriansz JA, at para 25
  2. ↑ R v White, 2007 ABQB 359 (CanLII), , [2007] AJ No 608, per Brooker J, at para 18
  3. ↑ R v Dhillon, 2002 CanLII 45048 (ON CA), , [2002] OJ No 3451 (ONCA), per Goudge JA, at para 28
  4. ↑ Hall, supra
    White, supra, at paras 17 to 18
  5. ↑ White, supra, at para 17
  6. ↑ Mordue, supra, at para 13
    BS, supra, at paras 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), per Wagner J (7:0), 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 (CanLII), per Lamer CJ
  2. ↑ R v MacDougal, 1999 BCCA 509 (CanLII), per Hall JA (3:0)
    R v Hall, 2000 CanLII 16867 (ON CA), per Osborne ACJ (3:0)
  3. ↑ see R v Hall, 2002 SCC 64 (CanLII), per McLachlin CJ

Types of Offences

Gun Offences

The presence of guns or weapons do not automatically satisfy the tertiary grounds on the basis of public safety.[1]

  1. ↑ R v Ouellet, [2006] OJ 1785 (ONSC)(*no CanLII links) - court found it to be an error of law for the JP to infer public safety risk simply because of possession of a weapon

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. & PEIR 1 (NLSC), per Russell J, at para 47

See Also

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