Section 515(3) of the Code requires a justice to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case. This is why bail hearings are sometimes referred to as “show cause” hearings.
Criminal Code.
Section 515(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) [types of release on recognizance] unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.
There are many instances where notwithstanding the Crown’s agreement with defence counsel, or even when the Crown consents to release, where the Court must intervene as part of its supervisory or review jurisdiction to make decisions contrary to such agreements or joint submissions.
R. v. D.C.G.S., 2003 ABQB 420 (CanLII).
Consent release is an efficient method of achieving the release of an accused. Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject one. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release.
R. v. Antic, [2017] 1 SCR 509, at para. 68.
It follows then that a justice may find that the evidence received at the bail hearing, in and of itself, meets the threshold of showing cause. The Crown’s position on release is not determinative.
However, rejecting a consent release is likely to be rare, as a justice cannot impose a more restrictive form of release unless, on balance, that more onerous form of release is necessary having regard to the statutory criteria.[FN]
