Judicial Interim Release (Until December 18, 2019)

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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.[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.

  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...")

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:

Order of release

515 (1) Subject to this section, where 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, order, in respect of that offence, that the accused be released on his giving an undertaking 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 and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.

...
R.S., 1985, c. C-46, s. 515; (...) 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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

  • appearance notice
  • promise to appear
  • summons
  • undertaking
  • recognizance

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]

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.[5]

The ladder principle must be strictly adhered to.[6]

A recognizance with surety is one of the most restrictive forms of release.[7]

A recognizance is functionally equivalent to cash bail.[8]

Cash bail should only be applied in "exceptional circumstances" where a surety is unavailable.[9]

  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), (1972) 9 CCC (2d) 1 (B.C.S.C.), per Verchere J
  5. ↑ 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.")
  6. ↑ Antic, supra, at para 67 ("This principle must be adhered to strictly.")
  7. ↑ Antic, supra, at para 67
  8. ↑ Antic, supra, at para 67
  9. ↑ 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) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance 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, promise to appear, summons, undertaking or recognizance 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.
Where new information charging same offence

(1.1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, a new information, charging the same offence or an included offence, is received, 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 interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the new information.

When direct indictment is preferred charging same offence

(1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 [direct indictments] charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the indictment.
...

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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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)

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.
R.S., c. C-34, s. 474; 1974-75-76, c. 93, s. 59.1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Release on Section 469 Offences

Under s. 522 only a superior court justice may consider the release of someone charged with an offender under s. 469.[1]

Interim release by judge only

522 (1) Where an accused is charged with an offence listed in section 469 [exclusive jurisdiction offences], no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial.

Idem

(2) Where an accused is charged with an offence listed in section 469 [exclusive jurisdiction offences], a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10) [justification for detention in custody].

Order re no communication

(2.1) A judge referred to in subsection (2) [order detention for 469 offences unless accused shows cause] who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order except in accordance with such conditions specified in the order as the judge considers necessary.

Release of accused

(3) If the judge does not order that the accused be detained in custody under subsection (2) [order detention for 469 offences unless accused shows cause], the judge may order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) [release order with conditions – required obligations] with such conditions described in subsections 515(4) [permissible conditions on release order], (4.1) [condition prohibiting possession of firearms, etc.] and (4.2) [additional conditions re protecting victims or witnesses] as the judge considers desirable.

Order not reviewable except under section 680

(4) An order made under this section is not subject to review, except as provided in section 680 [review by court of appeal].

Application of sections 517, 518 and 519

(5) The provisions of sections 517 [Order directing matters not to be published for specified period], 518 [Inquiries to be made by justice and evidence] except subsection (2) [order detention for 469 offences unless accused shows cause] thereof, and 519 [release of accused after show cause hearing] apply with such modifications as the circumstances require in respect of an application for an order under subsection (2) [order detention for 469 offences unless accused shows cause].

Other offences

(6) Where an accused is charged with an offence mentioned in section 469 [exclusive jurisdiction offences] and with any other offence, a judge acting under this section may apply the provisions of this Part respecting judicial interim release to that other offence.
R.S., 1985, c. C-46, s. 522; R.S., 1985, c. 27 (1st Supp.), s. 88; 1991, c. 40, s. 32; 1994, c. 44, s. 48; 1999, c. 25, s. 10(Preamble).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Onus

The onus is upon the accused to show cause for release on a 469 offence.[2]

Detention by Provincial Court Judge

A person charged with an offence under s. 469 will be required to attend before a justice of the peace or provincial court judge under s. 503, however s. 515(11) requires them to detain the accused.

515
...

Detention in custody for offence listed in section 469

(11) Where an accused who is charged with an offence mentioned in section 469 [exclusive jurisdiction offences] is taken before a justice, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.
...

[annotation(s) added]

– CCC (CanLII), (DOJ)

  1. ↑ 469 offences consist of treason, intimidating Parliament or legislature, inciting mutiny, sedition, piracy, piratical acts, and murder
  2. ↑ see s.522(2)

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
...

Consideration of victim’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 he or she considered the safety and security of every victim of the offence when making the order.
...
[[List of Criminal Code Amendments|R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; ... 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.]]

– CCC (CanLII), (DOJ)

Topics

See Also

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