When someone is charged with a crime, the law typically requires that the accused be released from detention before trial on what is known as “bail.” Historically, bail was not intended to be punitive. The primary consideration was to secure attendance at trial. In Canada, a person charged with a criminal offence and detained on arrest has the constitutional right not to be denied bail without just cause according to s. 11(e) of the Charter. Section 11(e) contains two distinct elements, namely the right to “reasonable bail” and the right not to be denied bail without “just cause.” Reasonable bail refers to the terms of bail. Thus, the quantum of bail and the restrictions imposed on the accused’s liberty while on bail must be “reasonable.” Just cause refers to the right to obtain bail. Thus, bail must not be denied unless there is “just cause” to do so.
Bail is not a privilege. It should only be withheld where it is necessary: R v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 (S.C.C.) at 97, per Lamer C.J.C.
The Criminal Code annunciates the “ladder principle”, which is a central feature of the Canadian law of bail. The ladder principle generally requires that a justice not order a more onerous form of release unless the Crown shows why a less onerous form is inappropriate. R v Antic, [2017] 1 SCR 509 at para. 29. In other words, the ladder principle means that release is favoured at the earliest reasonable opportunity and on the least onerous grounds. Id. at para. 67 (citing R. v. Anoussis, 242 C.C.C. (3d) 113 (C.Q.), at para. 23). The analysis should consider the possible forms of release in order (i.e., undertaking with conditions, a release order with a financial obligation, or a recognizance to one or more sureties with or without the promise to pay a specified amount if they fail to comply). Recognizance with surety is one of the most restrictive forms of release. Id. Cash bail should only be applied in “exceptional circumstances” where an appropriate surety is unavailable. Id.
Where the Crown shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until trial. Criminal Code, s 515(5). The burden is upon the Crown to justify detention on the balance of probabilities unless the offence is subject to a reverse onus. Antic, at para. 67. Detention of an accused in custody is justified only one or more of the following grounds: (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. Criminal Code, RSC 1985, c C-46, s 515(10).
If you or someone you know is charged with a criminal offence and is awaiting a bail hearing, contact our experienced team of criminal defence lawyers at Kitchen Simeson Belliveau. They will help to navigate you through the process.