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| Patrick Ducharme |
Recent criminal law amendments relating to bail are significant. Chief among them is the philosophy behind the new judicial interim release legislation.
The primary considerations are for the presiding Justices hearing bail cases. New provisions instruct them to provide the accused with the earliest reasonable release on the least restrictive conditions.
As laudable as these instructions are, we should not be under the false impression that our legislators embraced this humane philosophy on their own initiative. Instead, it can be traced to the 2017 decision of the Supreme Court of Canada in R. v. Antic,1 discussed in detail below. The amendments, in effect, have codified some fundamental principles discussed in that case. The main principle is restraint, restraint on unnecessary pre-trial incarceration. And adherence to constitutional principles, most notably, that any person charged with an offence has the right not to be denied reasonable bail without just cause.
The principle of restraint is found everywhere in the Charter. Section 11 (a) provides an accused the right to be informed without unreasonable delay of the specific offence(s) he faces. Section 11 (b) provides that he has the right to be tried within a reasonable time. Section 11 (c) provides that he has the right not to be compelled to be a witness in proceedings against himself. Section 11 (d) provides that he has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Section 11 (e) requires that any person charged with an offence has the right not to be denied reasonable bail without just cause.
In 1992 the Supreme Court of Canada rendered its decision in R. v. Morales.3 The court decided that two factors needed to be present for there to be ‘just cause’ to deny bail. Denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system.
After the Morales case the Federal government enacted several legislative changes that Parliament described as “necessary to maintain confidence in the administration of criminal Justice”. Subsection 515(10) of the Code is a good example. Subsection (10) (c) uses the words, “if the detention is necessary to maintain confidence in the administration of Justice, having regard to all the circumstances including, the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and, 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.”
The court was signaling that if these aggravating factors were present the principle of restraint may be less significant due to these specific circumstances because they are deemed necessary to promote the proper functioning of the bail system.
The recent amendments to the bail provisions also require that Judges and police consider whether an accused is indigenous or belongs to any other “vulnerable population” in deciding whether the accused should be released on bail, and, what the specific terms of release should be.
Section 503 of the Code provides that when a person is arrested and taken into custody that person must be brought before a Justice of the peace, or Judge, within twenty-four hours or as soon as possible if a Justice is not available within that time. Expeditious handling of a person in custody is part of the restraint principle.
Once arrested, the accused person is entitled to be dealt with expeditiously.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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