HOW DO I GET OUT ON BAIL?

By: Franklin A. Lyons

Every day, we get calls from people in custody awaiting trial asking, “Can I get out?” This post will attempt to answer this very fundamental question by explaining the new law in this area.

On June 1st, 2017, the Supreme Court of Canada released a decision in the case of R. v. Antic, 2017 SCC 27 (“Antic”). Antic redirected courts how to evaluate whether an accused person should be released, if they should be released. And that the form of release ought to be the least restrictive possible and that the conditions ought to be the least restrictive possible.

In his decision for a unanimous court, Justice Wagner went through the relevant constitutional and statutory provisions and the history of Mr. Antic’s journey to the Supreme Court. I will attempt to summarize and simplify this decision with the same structure in order to explain where the law of bail stands now and how it applies to the newly arrested person awaiting a decision on whether he can be released while awaiting his trial, on what type of release and on what conditions.

Overview

The right to not be detained before trial is fundamental in the Canadian criminal justice system, which is why it is enshrined in s. 11 (e) of the Canadian Charter of Rights and Freedoms (“the Charter”). Section 515 of the Criminal Code of Canada (“the Code”) deals with whether a person at a show cause hearing (bail hearing) should be released or detained.

One of the principles codified in s. 515 (3) is the “ladder principle.” Simply put, an accused should be released on the least onerous form of bail unless the Crown shows why a court should decide otherwise. In Antic, the bail review judge failed to correctly apply this principle.

The Judicial History of Antic

Mr. Antic was arrested and charged with several drug and firearms offences. Because of the nature of the charges, his hearing was a “reverse onus” hearing, meaning that he bore the burden of showing cause why he ought to be released. He was denied bail by Justice of the Peace Renaud, even though the Justice found that his girlfriend’s supervision would address any community safety concerns (the secondary ground). However, the Justice was not satisfied that the plan sufficiently addressed the concern that he would flee the jurisdiction and not attend his trial (the primary ground). There is a third issue present at many bail hearings which was recently written about by the Supreme Court of Canada in R. v. St. Cloud, but I will write about that case in a different post, since Antic does not deal directly with the tertiary ground.

Judge Munroe denied Mr. Antic’s bail review, despite Mr. Antic proposing additional sureties who were willing to pledge $10,000 plus a house if he absconded. In his reasons, Judge Munroe wrote that he would have released Mr. Antic, if he could have provided a cash deposit, but because that provision of the Code only applies to accused people living more than 200kms away from the place in which he was detained Mr. Antic’s sureties were not eligible to provide a cash deposit, In other words, even though Mr. Antic would be releasable if he lived farther away, he must remain detained until his trial. At a second bail review, despite a change in circumstances, Judge Munroe was still concerned that Mr, Antic would abscond and denied him judicial interim release. Again, he would be released if he was from somewhere else. A third bail review challenged the constitutionality of s. 515(2)(e) of the Code, which prohibits people in Mr. Antic’s situation from providing a cash deposit and sureties. Judge Munroe agreed that the section was unconstitutional and released Mr. Antic on a surety bail with a $100,000 cash deposit. The Supreme Court agreed to hear the Crown appeal.

The Supreme Court’s Decision

In deciding whether the legislative provision in s. 515(2)(e) infringed the Charter, Justice Wagner first went through the history of bail. One major reason for the 1972 Bail Reform Act was to make cash bail a last resort because requiring cash to secure release was harsh against poor people. And the ladder principle was enshrined in the Charter.

The Charter basically entitles everyone charged with a crime to reasonable bail unless the Crown can show just cause to deny it. It is in this context that s. 515(2)(e), the provision allowing only those who live 200kms away from the place where they were detained, was examined.

Basically, the prosecutor has to show cause why an accused should not be released on his own undertaking (legal promise without money) and why every form of release should be denied every step up the ladder, from release on a recognizance (legal promise with money) to a recognizance with a surety on up.

Cash is not more effective in ensuring compliance. It is only more effective in limiting the ability of the poor to obtain bail. Therefore, when money is required, a pledge has the same effect as a cash deposit. The application of s. 515(2)(e) in the way Justice Munroe did has the effect that the Bail Reform Act was trying to avoid: denying bail to the poor.

Because the ladder principle was misapplied by Justice Munroe in Mr. Antic’s case, Justice Wagner decided that s. 515(2)(e) did not violate the Charter.

Moving forward, courts are directed to release an accused on his own undertaking as the default position for bail. The Crown must show cause for every step up the ladder. Courts must look at every step up the ladder individually and reject it before moving up the ladder. If a party disagrees, the Judge or Justice must provide reasons for rejecting a less onerous form of release. Perhaps most importantly, at paragraph 67 (g), Justice Wagner wrote, “A recognizance with sureties is one of the most onerous forms of release [and] should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.” This is a major change, as a surety recognizance was the most common type of release in the past.

Conclusion

When clients ask whether they can get out on bail, before this decision my default response was usually, “it depends, do you have a surety and/or cash?” Now, it may be that a surety is still necessary and will be an effective bargaining chip when trying to assist with consent releases. But this case will be extremely helpful when arguing that an accused person need not have a surety and/or a cash deposit to secure their release. The presumption of innocence is alive and well in Canada.