Bail is a hot topic. Before you go to jail, you may first get bail. In fact, you have a right to it under section 11(e) of the charter. Any person charged with an offence has the right not to be denied reasonable bail without just cause . ‘Just cause’ means the statutory grounds that justify pre-trial detention of an accused .
What is most commonly called ‘bail’ is found under section 515 of our Criminal Code. Section 515 of the Criminal Code talks about orders of release. Section 515(1) provides that where an accused who is charged with an offence is taken before a justice, the justice shall, unless a guilty plea is accepted, order that the accused be released on his giving an undertaking without conditions. ‘Shall’ means must, however, a justice does not have to order a release where 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 515 provision should be made instead. Under s.515(6), certain offences do not benefit from the presumption in favour of release.
The other provisions of section 515 include allowing release on an undertaking to comply with conditions (s.515(2)). One such condition is a recognizance (s.515(2)(b). Another is a requirement for ‘surety’ (s.515(2)(c)). Another is payment of cash into the court (s.515(2)(d); (e)). The latter is often what lay people think of when they talk about ‘bail’. Each paragraph is more strict than the prior. On top of this, there can be a lot of different conditions alongside each of these, relevant to the accused’s circumstances. This includes conditions to report to a peace officer at specific times, orders to remain in a jurisdiction, requirements to notify peace officers of changes in address, employment, or occupation, restraining orders, a requirement to deposit the suspect’s passport, or other reasonable conditions that a justice considers desirable. In some cases, the justice must also add a condition prohibiting the possession of firearms (s.515(4.1)). These sections give the Court a broad discretion in dealing with bail. That makes it all the more crucial to have experienced counsel by your side, giving your side of the story, and fighting to get you the best conditions possible. Only the two most severe bail orders require a cash deposit .
The Supreme Court has talked about Bail quite a bit in recent years . One of those decisions is R v. Antic, which clarified the principles in the law of bail in section 515. In its opening words, the Antic Court wrote that the right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system . Section 515(3) provides that the justice shall not make an order under 512(b) to (e) unless the prosecution shows cause why an order under the preceding paragraph should not be made. The Antic Court noted that this was a
[1] R v. Antic, para. 7
[2] Antic, para. 34
[3] Antic, para. 30
[4] R v. Myers, para. 3
[5] Antic, para. 1
codification of the “ladder principle”. The “ladder principle” requires a justice to impose the least severe form of release on an accused, unless the Crown shows why that should not be the case .
A statutory provision that allows for pre-trial detention triggers the right to bail in s.11(e) of the Constitution. There is just cause to deny bail only if:
- The denial occurs in a “narrow set of circumstances”; and,
- The denial of bail “is necessary to promote the proper functioning of the bail system…”
While it’s only possible to deny bail in narrow circumstances, s.515(2) of the Criminal Code establishes the only legal forms of pre-trial release (or bail). These include a surety release, or a release with a recognizance. It is the justice or judge who ultimately decides which form of release to order in a given case, and may impose terms specific to the accused’s circumstances . Cash deposits are included in the most onerous (i.e. severe) ‘rungs’ of the bail ladder for added flexibility. A recognizance creates the same financial incentive for the accused to comply with the terms of the release as a cash deposit .
The Supreme Court ruled that “where a monetary condition of release is necessary and a satisfactory personal recognizance or recognizance with sureties can be obtained, a justice or a judge cannot impose cash bail. A pledge and a deposit perform the same function: the accused or the surety may lose his or her money if the accused person breaches the terms of bail. Release with a pledge of money thus has the same coercive power as release with a cash deposit” . Courts are not permitted to fix the amount of a surety or cash deposit so high as to effective constitute a detention order. This means the amount fixed should not be beyond the readily available means of the accused and his or her sureties. This imposes a positive obligation on judges to look at an accused’s ability to pay . Cash bail is limited, because it can operate unfairly
The law of Bail is based in English antiquity. It traces back to 1275 . It’s a complicated subject, which although codified, remains subject to many different considerations. As we’ve seen, the inconsistent, and at times unfair, application of the law of Bail recently came to the Supreme Court’s attention. The Supreme Court declared it time to ensure that bail provisions be applied consistently and fairly. As it recognized, the stakes are simply too high for anything else. An accused is presumed innocent, and should not have to plead guilty solely to be released, nor should they needlessly suffer once released. Courts must respect the presumption of
[6] Antic, paras. 29-31
[7] Antic, para. 39 – 40
[8] Antic, para. 42
[9] Antic, para. 47-48
[10] Antic, para. 49
[11] Antic, para. 56
[12] Antic, para. 58
[13] Antic, para. 22
innocence, which is a hallowed principle lying at the very heart of criminal law . It can be difficult for Courts to adapt to new ways of “doing things”. Sometimes they find change uncomfortable. But Antic signaled a need for change – a need to do things differently .
With knowledgable and experienced counsel assisting you, you can be sure that the provisions will be applied fairly and consistently, and that the presumption of innocence will be respected.
N.b.: While Bill C-75 has made changes to bail, these only come into force on December 18, 2019, and thus are outside the scope of this article. We’ll update you on those changes once they’re effective.
From the Horse’s Mouth:
Here’s section 515 of the Criminal Code, which we talk about above:
Judicial Interim Release
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 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.
Release on undertaking with conditions, etc.
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
[15] Antic, para. 66
[16] R v. Tunney, para. 57
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.
Power of justice to name sureties in order
(2.1) Where, pursuant to subsection (2) or any other provision of this Act, a justice, judge or court orders that an accused be released on his entering into a recognizance with sureties, the justice, judge or court may, in the order, name particular persons as sureties.
Alternative to physical presence
(2.2) Where, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the appearance shall be by actual physical attendance of the accused but the justice may, subject to subsection (2.3), allow the accused to appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the justice.
Where consent required
(2.3) The consent of the prosecutor and the accused is required for the purposes of an appearance if the evidence of a witness is to be taken at the appearance and the accused cannot appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication.
Idem
(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.
Conditions authorized
(4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order:
(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the justice considers necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order;
(e.1) comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence; and
(f) comply with such other reasonable conditions specified in the order as the justice considers desirable.
Condition prohibiting possession of firearms, etc.
(4.1) When making an order under subsection (2), in the case of an accused who is charged with
(a) an offence in the commission of which violence against a person was used, threatened or attempted,
(a.1) a terrorism offence,
(b) an offence under section 264 (criminal harassment),
(b.1) an offence under section 423.1 (intimidation of a justice system participant),
(b.2) an offence relating to the contravention of any of sections 9 to 14 of the Cannabis Act,
(c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act,
(d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, or
(e) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act,
the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things, until the accused is dealt with according to law unless the justice considers that such a condition is not required in the interests of the safety of the accused or the safety and security of a victim of the offence or of any other person.
Surrender, etc.
(4.11) Where the justice adds a condition described in subsection (4.1) to an order made under subsection (2), the justice shall specify in the order the manner and method by which
(a) the things referred to in subsection (4.1) that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences and registration certificates held by the person shall be surrendered.
Reasons
(4.12) Where the justice does not add a condition described in subsection (4.1) to an order made under subsection (2), the justice shall include in the record a statement of the reasons for not adding the condition.
Additional conditions
(4.2) Before making an order under subsection (2), in the case of an accused who is charged with an offence referred to in subsection (4.3), the justice shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the order
(a) that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order; or
(b) that the accused comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of those persons.
Offences
(4.3) The offences for the purposes of subsection (4.2) are
(a) a terrorism offence;
(b) an offence described in section 264 or 423.1;
(c) an offence in the commission of which violence against a person was used, threatened or attempted; and
(d) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act.
Detention in custody
(5) Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall include in the record a statement of his reasons for making the order.
Order of detention
(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged
(a) with an indictable offence, other than an offence listed in section 469,
(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,
(ii) that is an offence under section 467.11, 467.111, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization,
(iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence,
(iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act,
(v) an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in subparagraph (iv),
(vi) that is an offence under section 99, 100 or 103,
(vii) that is an offence under section 244 or 244.2, or an offence under section 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to have been committed with a firearm, or
(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);
(b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada,
(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816, or
(d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.
Reasons
(6.1) If the justice orders that an accused to whom subsection (6) applies be released, the justice shall include in the record a statement of the justice’s reasons for making the order.
Order of release
(7) Where an accused to whom paragraph 6(a), (c) or (d) applies shows cause why the accused’s detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions described in subsections (4) to (4.2) or, where the accused was at large on an undertaking or recognizance with conditions, the additional conditions described in subsections (4) to (4.2), that the justice considers desirable, unless the accused, having been given a reasonable opportunity to do so, shows cause why the conditions or additional conditions should not be imposed.
Idem
(8) Where an accused to whom paragraph (6)(b) applies shows cause why the accused’s detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions, described in subsections (4) to (4.2), that the justice considers desirable.
Sufficiency of record
(9) For the purposes of subsections (5) and (6), it is sufficient if a record is made of the reasons in accordance with the provisions of Part XVIII relating to the taking of evidence at preliminary inquiries.
Written reasons
(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.
Justification for detention in custody
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
Detention in custody for offence listed in section 469
(11) Where an accused who is charged with an offence mentioned in section 469 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.
Order re no communication
(12) A justice 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 justice considers necessary.
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.
Copy to victim
(14) If an order is made under this section, the justice shall, on request by a victim of the offence, cause a copy of the order to be given to the victim.
R.S., 1985, c. C-46, s. 515 R.S., 1985, c. 27 (1st Supp.), ss. 83, 186 1991, c. 40, s. 31 1993, c. 45, s. 8 1994, c. 44, s. 44 1995, c. 39, s. 153 1996, c. 19, ss. 71, 93.3 1997, c. 18, s. 59, c. 23, s. 16 1999, c. 5, s. 21, c. 25, s. 8(Preamble) 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
