Not to be Denied Bail

Not to be Denied Bail

Section 11(e) of the Charter of Rights and Freedoms guarantees everyone the right not to be denied reasonable bail without just cause. This right is closely related to section 11(d), the right to be presumed innocent until proven guilty. As a result of this presumption, the Charter ensures that those who are arrested and charged will be presumptively releasable from police custody, with the least onerous conditions possible.

Section 515(1) of the Criminal Code provides that where an accused person is arrested for an offence other than a section 469 offence, and brought before a justice, the justice must order release without conditions unless the Crown can show cause as to why the individual should be released with conditions. Subsection 515(2) indicates that where the justice does not agree to release without conditions, they must release with conditions unless the Crown can show cause why the accused should be detained. 

What is the Right not to be Denied Reasonable Bail without Just Cause?

When an individual is arrested and charged with a criminal offence, they may be released by police officers from the scene and provided a court date, or they may be held for a bail hearing, formally known as a show cause hearing. At the show cause hearing, the burden lies with the Crown to show cause why the accused should be released with conditions or detained pending trial. The presumption is that the accused be released with no conditions. This right is rooted in the presumption of innocent and was enacted in an effort to reduce the population of individuals in pre-trial detention.

Section 11(e) encompasses two rights: the right to reasonable bail and the right not to be denied bail without just cause. The right to reasonable bail refers to the conditions attached to an accused’s bail. These conditions must be reasonable. Any conditions which the accused would not be capable of abiding by will be considered unreasonable.

In determining a “reasonable” bail, the court must consider the specific circumstances of the accused. If conditions are to be ordered, they must be uniquely tailored to the accused and their current situation. Only conditions that are necessary should be imposed. Necessary conditions include conditions to ensure the accused attends court, conditions to ensure the accused does not reoffend or bring the administration of justice into disrepute and/or conditions to ensure the public’s confidence in the justice system.

In addition to reasonable bail, section 11(e) also guarantees the right not to be denied bail without just cause. Section 11(e) creates the presumption that those who are arrested will be released without conditions. If the Crown believes conditions or detention are necessary, they must show cause as to why. Crowns and the Court must use the ladder principle to ensure accused persons are released on the least onerous bail conditions.

R. v. Antic and the Ladder Principle

The landmark Supreme Court case of R. v. Antic [2017] discusses how section 11(e) of the Charter, the right not to be denied reasonable bail without just cause, must be applied. In their decision, the Court outlined what is known as the ladder principle, creating binding law for all criminal courts in Canada. The ladder principle states that those accused of criminal offences must be released from custody on the least onerous grounds possible. This principle is rooted in the underlying presumption that all those charged with an offence are innocent until proven guilty. 

When determining the appropriate release plan, the Crown must start at the bottom of the ladder and work their way up. If they feel as though the lowest form of release is not appropriate, thereby moving up the ladder, they must provide reasons for doing so to the court. 

Section 515(10) provides three possible grounds that warrant detention. These are known as primary, secondary, and tertiary grounds. 

Primary Grounds

Under primary grounds, the Crown may oppose an accused’s release if they have reason to believe that the accused will not attend their court appearances moving forward as directed by the court. Factors that the Crown and court will consider under this ground include but are not limited to prior convictions for failing to appear in court, lack of ties to the community, a sporadic employment history, length of potential incarceration, and ability to travel outside the country.  

Secondary Grounds

Under secondary grounds, the Crown may oppose an accused’s release where there is a substantial likelihood that the accused will reoffend while out on release in the community. Factors that the Crown and court will consider under this ground include prior breaches of recognizance or probation, the nature and circumstances of the offence, likelihood of conviction, relationship between the accused and victim, prior similar conduct, and the danger the accused poses to the community if released. 

Tertiary Grounds

Under tertiary grounds, the Crown may oppose an accused’s release where they believe it is necessary to maintain public confidence in the administration of justice having regard to all the circumstances, including the apparent strength of the Crown’s case, the gravity of the offence, the length of possible prison sentence and whether a firearm was used. This ground is used infrequently.  

Example

Person A is arrested and charged with possession of child pornography. The accused is held for a show cause hearing. At the show cause hearing the Crown consents to the accused’s release with conditions to address the primary, secondary and tertiary grounds.

The Crown argues that release with no conditions is not appropriate because of the secondary and tertiary grounds. The Crown seeks conditions prohibiting the accused from accessing the internet except for work purposes and prohibiting the accused from being alone with children. These conditions are necessary to ensure the accused does not reoffend and to protect the public’s confidence in the justice system. Given that person A is a first-time offender and there is nothing to suggest he will not attend court as directed, the Crown does not seek any conditions related to the primary ground.

Section 469 Offences

Pursuant to section 515(11) of the Code, an accused person charged with an offence listed in section 469 of the Criminal Code will automatically be denied bail by virtue of the seriousness of the offence. These offences include: 

  • Treason 
  • Intimidating Parliament or legislature 
  • Inciting to mutiny 
  • Seditious offences 
  • Piracy 
  • Piratical acts 
  • Murder 
  • Accessory to high treason or murder or bribery of a judicial office 
  • Crimes against humanity 
  • Conspiracy to commit high treason or murder or bribery of a judicial office 
  • Attempting to commit any of the above offences 

When is the Right Triggered?

The right not to be denied reasonable bail without just cause is triggered as soon an individual is arrested and charged with an offence. Any individual taken into custody is entitled to be released with reasonable bail unless the Crown can show cause why they should be released with conditions or detained. The only exception to this rule is for individuals charged with offences listed under section 469 of the Criminal Code.

What is a Reverse Onus Bail?

In most cases, the onus lies with the Crown to show cause as to why an accused should be released with conditions or not released at all. This is known as a Crown onus bail hearing. There is a presumption that all matters are Crown onus, unless certain conditions are met. For example, where an accused is arrested for an indictable offence while out on release for another indictable offence, the bail hearing will be what is known as a reverse onus hearing. Section 515(6)(a) through (d) list all the circumstances in which there is a reverse onus. Where there is a reverse onus, the accused must show cause as to why they should not be released with conditions or detained. If the accused can show that their detention is not necessary, the court will make an order of release under section 515(7) of the Code. 

What happens if the Right is Violated?

If an individual is charged with a criminal offence and unreasonably denied bail they may launch a section 11(e) Charter challenge, arguing that they were denied reasonable bail without just cause. If the challenge is successful, the court may order a remedy pursuant to section 24(1) of the Charter.

An accused who has been denied bail may also apply for a bail review. A bail review is essentially an appeal of the initial bail hearing. If the accused can show that they were denied reasonable bail without just cause at the bail hearing, their bail conditions will be altered, or they will be released.

Cases

R. v. Pearson, [1992] 3 SCR 665

In the case of R. v. Pearson, the Supreme Court of Canada, in discussing section 11(e) of the Charter, provided new guidance to lower courts. The Court indicated that section 11(e) guarantees two things: the right to reasonable bail, which refers to the conditions imposed on the accused as well as the quantum of bail if a cash bail is ordered, and the right not to be denied bail without just cause. The Court indicated that bail must only be denied in a narrow set of circumstances where the Crown can show sufficient just cause.

R. v. Antic, [2017] 1 SCR 509

In the landmark case of R. v. Antic, the Supreme Court of Canada outlined the ladder principle, setting a new Brightline rule for how bail cases across Canada should be managed by Crown’s and the lower courts. The Court laid out a detailed analysis, discussing primary, secondary, and tertiary grounds to justify release with conditions or detention. The Court reiterated that granting reasonable bail is rooted in the fundamental principle that everyone is innocent until proven guilty, and that innocence must be the presumed throughout the pre-trial stages of an

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