Patrick J Ducharme

Patrick Ducharme

It is inappropriate to fix the amount of the cash deposit as some portion of the amount still unrecovered (e.g. if the accused is charged with robbery of a large amount of money) or to fix the amount so high that it amounts effectively a detention order.1 Subsection 515(2)(d) that appears to require the consent of the prosecutor before a cash bail can be ordered violates subsection 11(e) of the Charter and should be read down to exclude these words.
Continue reading “Cash Bail”

Patrick Ducharme

Subsection 11(e) of the Charter provides that reasonable bail is a constitutionally protected right. In an unreported decision of the Ontario Superior Court of Justice, Justice Joseph Quinn in R. v. Benic decided that the practice of remanding accused persons for greater than three days without the consent of the accused was an infringement of subsection 11(e) of the Charter as well as a breach of the mandatory provisions of subsection 516(1) of the Code and he ordered that the accused be given an immediate bail hearing in accordance with subsection 516(1).
Continue reading “The Right to Bail Expeditiously and Burden of Proof”

Patrick J Ducharme

In R. v. St-Cloud the accused was charged with aggravated assault. The incident giving rise to the charge was captured on a video recording system. The video demonstrated that the accused and two others assaulted a bus driver. In addition, there was eyewitness testimony. It was inarguable at the time of the bail hearing that the Crown’s case was strong since the incident was videotaped and the videotape was augmented by eyewitness testimony.
Continue reading “R. v. St-Cloud and the Tertiary Ground of Bail”

Patrick Ducharme

R. v. Antic re-iterated that the right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. This enlightened system guarantees the right to reasonable bail. The court stated that except for certain exceptions, an unconditional release on an undertaking is the default position when granting release.
Continue reading “Release is Default Position”

Patrick Ducharme

Release of the accused is the “fallback position.” Subsection 515(1) provides that the court must order the release of the accused on his undertaking without conditions unless the prosecutor shows cause why the detention of the accused in custody is justified or why an order under any other provision of the subsection should not be made, or, unless a plea of guilty is entered by the accused. The effect of this provision is to create a presumption that the least onerous type of release should be considered first, and the court continues to consider each of the various forms of release until eventually, the final resort is to detain the accused. Detention should only occur if absolutely no form of release is appropriate. Continue reading “From “Least Onerous” Up the Ladder”

Patrick J Ducharme

The three grounds of detention have equal weight. Reference to the primary, secondary, and tertiary grounds of detention should not lead one to the mistaken impression that one is given higher priority over the other. The prosecutor generally has the onus to justify an accused’s detention in all cases, except where the Code expressly provides otherwise. In addition to the reverse onus placed upon the accused created by section 522 for offences listed in section 469, subsection 515(6) outlines the specific instances where the onus is reversed to the accused even for non-469 offences.
Continue reading “Grounds of Detention and Reverse Onus”

Patrick Ducharme

The Supreme Court of Canada’s decision in R. v. St- Cloud is best known and most often cited for its decision concerning whether the detention of an accused is necessary to maintain confidence in the administration of Justice. The decision in this regard suggests that the presiding Justice must first consider the four circumstances that are expressly referred to in subsection 515 (10). However, the decision is equally important for its commentary and directions concerning applications to review a bail decision by the defence pursuant to section 520, and the prosecution pursuant to section 521 of the Code.
Continue reading “R. v. St-Cloud on Proper Review Grounds”

Patrick Ducharme

Only in the case of section 469 offences is the accused required to make an application for bail. In all but arrests for section 469 offences, the accused will immediately and automatically be entitled to a bail hearing. Section 469 contains a list of the most serious offenses that can be committed in Canada.
Continue reading “Section 469 Offences”

Patrick J Ducharme

A person charged with a criminal offence may be taken into custody upon his arrest. The circumstances of when and how the accused will be released without a formal bail hearing are generally outlined in sections 495 to 499 of the Code. If the person arrested is not released by the arresting officer or by any other officer, including, but not limited to the officer in charge since the 2019 amendments to the Code, the next step in the progression of events is for the accused to be taken before a Justice who will conduct a bail hearing.

Continue reading “How Bail Works”

Patrick Ducharme

Apart from what can be learned about the evidence and the person charged, the prospect of detention prior to trial may change the complexion of the trial process. An accused who is in custody prior to trial is an accused that is much less available to counsel during preparation for trial.
Continue reading “Defence Often Compromised by Pre-trial Detention”