Criminal Law Notebook

Judicial Interim Release

This page was last substantively updated or reviewed February 2020. (Rev. # 96107)

Introduction

See also: Release by Police on Undertaking

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.[1]

Pre-trial custody affects the "mental, social, and physical life" of the accused and his family as well as impacting the trial itself.[2]

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."[3] The burden increases with an increase in the restrictiveness of the terms of release.[4]

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.[5]

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.[6]

  1. ↑ Ewaschuk, Criminal Practice and Procedure in Canada at 6:0010 where the terms are violated the surety will incur a debt with the crown.
  2. ↑ R v Antic, 2017 SCC 27 (CanLII), [2017] 1 SCR 509, per Wagner J, at para 66
  3. ↑ Antic, supra, at para 67 ("If the Crown proposes an alternative form of release, it must show why this form is necessary.")
  4. ↑ Antic, supra, at para 67 ("The more restrictive the form of release, the greater the burden on the accused")
  5. ↑ s. 763, 764(1)
  6. ↑ see Procuring the Attendance of a Prisoner for details

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."[1]

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.[2]

Prior to 1972 the bail system was primarily based on a cash bail.[3] It was also "highly discretionary" with a presumption of detention unless bail was applied for.[4] 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.[5]

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."[6] It created a system where "[b]ail must be granted unless pre-trial detention is justified by the prosecution."[7]

The Act was meant to Codify what is referred to as the "ladder principle" that is found in s. 515(1) to (3).[8]

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.[9]

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.

Relationship with Habeas Corpus

Long ago, habeas corpus applications was the standard way to secure bail. [10]

  1. ↑ R v Antic, 2017 SCC 27 (CanLII), [2017] 1 SCR 509, per Wagner J, at para 22
  2. ↑ Antic, ibid., at para 23
  3. ↑ R v Folkes, 2007 ABQB 624 (CanLII), 228 CCC (3d) 284, per Marceau J, at para 15
    R v Rowan, 2011 ONSC 7362 (CanLII), per Ramsay J, at para 9 ("One of the main purposes of the Bail Reform Act was to get away from the common law’s preoccupation with cash deposit")
    Antic, supra, at para 26
  4. ↑ Antic, ibid., at para 23
  5. ↑ Antic, ibid., at para 24
  6. ↑ Folkes, supra, at para 15
    Antic, supra, at paras 26 to 28 See Gary Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) [Trotter] at 247
  7. ↑ R v Pearson, 1998 CanLII 776 (SCC), [1998] 3 SCR 620, per Lamer CJ
  8. ↑ Antic, supra, at para 29
  9. ↑ Antic, supra, at para 31 ("In 1982, the enactment of the Charter transformed the statutory right to bail into a constitutional right...")
  10. ↑ see RJ Sharpe, The Law of Habeas Corpus, 2d. ed. (Oxford: Clarendon Press, 1989) p.134.
    R v Black, 1968 CanLII 818 (BC CA), 2 CCC 68, per Tysoe JA

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."[1] This means that the accused cannot be denied bail without reason and only where necessary.[2]

The rights under s. 11(e) of the Charter of Rights and Freedoms consist of two aspects:[3]

  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).[4]

Default Position

The "default position in most cases" should be release.[5] That release is presumed to be unconditional.[6]

Presumption of Innocence

The right to bail under s. 11(e) of the Charter is a corollary to the presumption of innocence.[7]

  1. ↑ Section 11(e) of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
  2. ↑ R v Antic, 2017 SCC 27 (CanLII), [2017] 1 SCR 509, per Wagner J
    R v Hall, 2002 SCC 64 (CanLII), [2002] SCJ No 65, per McLachlin CJ
    R v Villota, 2002 CanLII 49650 (ON SC), 163 CCC (3d) 507, per Hill J
    R v Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711, per Lamer CJ
    R v Hall, 2000 CanLII 16867 (ON CA), 147 CCC (3d) 279, per Osborne ACJ
  3. ↑ Antic, supra, at paras 36 and 67
  4. ↑ Antic, supra, at paras 33 to 34
  5. ↑ Antic, supra, at para 21 ("Although release is the default position in most cases, a judge or a justice also has the authority to deny the release of an accused or to impose conditions on the accused when he or she is released, provided that the Crown justifies the detention or the conditions. ")
  6. ↑ Antic, ibid., at para 67 ("Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1)")
  7. ↑ Antic, supra, at para 67 ("Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.")

Method of Release

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

Release order without conditions

515 (1) Subject to this section, when an accused who is charged with an offence other than an offence listed in section 469 [exclusive jurisdiction offences] is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, make a release order in respect of that offence, without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made.

[omitted (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) added]

– CCC (CanLII), (DOJ)

Note up: 515(1)

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.[1]

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).[2]

  1. ↑ R v Penunsi, 2019 SCC 39 (CanLII), [2019] 3 SCR 91, per Rowe J
    R v Hebert, CanLII 4160 (NB CA) 54 NBR (2d) 251, per Angers JA
    R v Nowazek, 2018 YKCA 12 (CanLII), 366 CCC (3d) 389, per Fitch JA
    contra R v Onalik, 2006 NLTD 108 (CanLII), 211 CCC (3d) 366, per Fowler J
  2. ↑ R v Goikhberg, 2014 QCCS 3891 (CanLII), QJ 8164, per Cournoyer J
    see also Procuring the Attendance of a Prisoner

Ladder Principle

Part XVI of the Code on bail sets out a structure of bail known as the "ladder principle."[1] 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."[2] 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).[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.[4]

Antic Principles

The case of Antic re-established the principles and guidelines required for bail that are modelled around the "ladder principle."[5]

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.[6]

The ladder principle must be strictly adhered to.[7]

A recognizance with surety is one of the most restrictive forms of release.[8]

A recognizance is functionally equivalent to cash bail.[9]

Cash bail should only be applied in "exceptional circumstances" where a surety is unavailable.[10]

  1. ↑ R v Antic, 2017 SCC 27 (CanLII), [2017] 1 SCR 509, per Wagner J R v O'Connor, 2015 ONSC 1256 (CanLII), per Price J, at para 46
  2. ↑ Antic, supra, at para 67
    O'Connor, ibid., at para 46
    R v Anoussis, 2008 QCCQ 8100 (CanLII), 242 CCC (3d) 113, per Healy J
  3. ↑ O'Connor, ibid., at para 46
    Anoussis, supra
  4. ↑ O'Connor, ibid., at para 46
    Anoussis, supra
    R v Horvat, 1972 CanLII 1371 (BC SC), 9 CCC (2d) 1 (B.C.S.C.), per Verchere J
  5. ↑ Antic, supra, at para 67
  6. ↑ Antic, supra, at para 67 ("Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.")
  7. ↑ Antic, supra, at para 67 ("This principle must be adhered to strictly.")
  8. ↑ Antic, supra, at para 67
  9. ↑ Antic, supra, at para 67
  10. ↑ Antic, supra, at para 67 ("cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties 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.[1]

The "Antic principles" do not apply strictly when the release is by consent.[2]

  1. ↑ R v Antic, 2017 SCC 27 (CanLII), [2017] 1 SCR 509, per Wagner J, at para 68
  2. ↑ Antic, ibid., at para 68

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 – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 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) [release of accused on s. 469 offences], 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 — appeals — definitions] 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 [process on justice receiving an information] or 508 [justice to hear informant and witnesses], 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 [direct indictments] 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.
[omitted (2)]

Provisions applicable to proceedings under subsection (2)

(3) The provisions of sections 517 [Order directing matters not to be published for specified period], 518 [Inquiries to be made by justice and evidence] and 519 [release of accused after show cause hearing] apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2) [power to vacate previous orders], except that subsection 518(2) [release on guilty plea pending sentence] does not apply in respect of an accused who is charged with an offence listed in section 469 [exclusive jurisdiction offences].
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) added]

– CCC (CanLII), (DOJ)

Note up: 523(1), (1.1), (1.2), (2), and (3)

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 [judicial interim release provisions[1]] 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 [judicial interim release provisions[2]].

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

– CCC (CanLII), (DOJ)

Note up: 519.1

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), (DOJ)

Note up: 546

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 [irregularity or variance not to affect validity], he may adjourn the inquiry and may remand the accused or grant him interim release in accordance with Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)].
R.S., c. C-34, s. 474; 1974-75-76, c. 93, s. 59.1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 547

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
[omitted (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.
[omitted (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), (DOJ)

Note up: 515(13) and (13.1)

Topics

See Also

  1. ↑ Found elsewhere in this same page.
  2. ↑ Found elsewhere in this same page.
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