For as long as I can remember there has been a widespread disjunction between the legal rule that the form of bail release imposed on an accused be no more onerous than necessary and the application of that rule in our courts.
In my experience, release of the accused on a recognizance with a surety/sureties (which the Supreme Court of Canada has recognized as an onerous form of bail) has become the sine qua non of a bail release.
Suggest at a bail hearing that the accused ought to be released on his own undertaking without or even with conditions and you will likely have to endure an eye roll from the presiding justice. Coming to a bail hearing expecting that sureties will not be required is simply folly. Yet the legal rule (known as the ladder principle) that release of the accused should occur at the earliest reasonable opportunity and on the least onerous grounds is well-established in our jurisprudence.
The June 2017 decision of the Supreme Court of Canada in R. v. Antic,  1 SCR 509 comes then as a welcome relief. R. v. Antic reorients courts to the primacy of the ladder principle, asserts that a surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate, and requires a court to justify its decision to prefer a more onerous form of release over a less onerous form.
The Ladder Principle
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. In other words, the ladder principle means that release is favoured at the earliest reasonable opportunity and on the least onerous grounds.
R. v. Antic, at para. 29;
R. v. Anoussis, 2008 QCCQ 8100 (CanLII), 242 C.C.C. (3d) 113, at para. 23.
The ladder principle and the authorized forms of release remain a central part of the Canadian law of bail and are enumerated in s. 515(1) to (3) of the Criminal Code.
R. v. Antic, at para. 30.
Sitting at the top of the ladder is release of the accused on his giving an undertaking without conditions. [FN1]
See section 515(1) of Criminal Code.
However, s. 515(1) also affords the prosecutor an opportunity to show why the accused should either be detained or be released under more onerous forms of release. [FN2]
The Criminal Code sets out these possible forms of release, ordered from the least to the most onerous; hence, the metaphor of a ladder.
See sections 515(1) to (3) of the Code.
The Rungs of the Ladder (from least onerous to most onerous forms of release)
· Undertaking without conditions;
· Undertaking with conditions;
· Recognizance without sureties (no deposit), with or without conditions;
· Recognizance with sureties (no deposit), with or without conditions;
· On the consent of the prosecutor, recognizance without sureties, with deposit, with or without conditions;
· Recognizance with or without sureties, with or without conditions, with deposit (only where accused not ordinarily resident of province or does not ordinarily reside within 200 km of the place in which he is in custody).
Contested Bail Hearings
As per R. v. Antic, at para. 67 the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:
(a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.
(b) Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.
(c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).
(d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, release is favoured at the earliest reasonable opportunity and, having regard to the statutory criteria for detention, on the least onerous grounds. This principle must be adhered to strictly.
(e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.
(f) 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.
(g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.
(h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or s. 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.
(i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case.
(j) Terms of release imposed under section 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure that the accused can be release. They must not be imposed to change an accused person’s behaviour or to punish an accused person.
(k) Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.
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, at para. 68.
[FN1] Section 515(1) requires that, where an accused is charged with an offence other than the ones listed in s. 469 of the Code, “the accused be released on his giving an undertaking without conditions”.
[FN2] The Code also requires that accused persons charged with any of the offences listed in s. 515(6) be detained unless they justify their release. This reversal of the burden is know as reverse onus.