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| 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.
In R. v. Saunders the accused was unable to find a surety. The Crown applied to review the accused’s release order. On the review, the accused proposed that he be released based on a cash deposit, instead of a release based on a surety. Subsection 515(2)(d) of the Code requires that the Crown consent to a cash deposit before a court may make such an order. The Crown refused to consent, and the accused sought to have the provision declared unconstitutional. The court agreed, holding that the words “with the consent of the prosecutor” in subsection 515(2)(d) are of no force or effect.3 Subsection 515(2)(d) of the Code infringes subsection 11(e) of the Charter by requiring the consent of the prosecutor before cash bail can be ordered.
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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