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| Patrick Ducharme |
In R. v. Antic1 the accused was charged with several drug and firearms offences. He was detained at his original bail hearing and sought release on a bail review. The bail review Judge declined to vacate the detention order but indicated that he would have released the accused if he could have imposed both a surety and a cash deposit as release conditions. The Judge on review felt constrained by subsection 515(2) because the subsection only applies if the accused is from out of the province or does not ordinarily reside within two hundred km of his incarceration.
The court struck down the earlier finding that subsection 515(2)(e) was unconstitutional. That is not, however, the most significant aspect of this case. Its significance is found in the court’s pronouncements concerning the right not to be denied reasonable bail without just cause, the entrenched right of an accused to the presumption of innocence at the pre-trial stage, and the concomitant safeguards for the liberty of accused persons.
The court reminded us that bail hearings amount to an expedited procedure, and, that the bail provisions are federal law and therefore must be applied consistently and fairly in all provinces and territories. Further, the law of bail consists of the ladder principle, providing for several forms of release from the least onerous to the most onerous as revealed in subsections 515(1) to (3) of the Code.
Subject only to certain statutory exceptions2 an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, ascending in severity as circumstances warrant. Consequently, a Justice determining release should proceed from the least onerous to the most onerous forms of release before ever considering a denial of bail. And, if a prosecutor proposes an alternate, more stringent form of release, the prosecutor must show cause why a more onerous form of release is necessary before a more restrictive form of release will be imposed.
As a result, each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. If the prosecutor and counsel for the accused disagree on the appropriate form of release, it is an error of law for the presiding Justice to order a more restrictive form of release without justifying the decision to reject the less onerous forms of release.
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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