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| 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.
Alternative forms of release are to be imposed in accordance with the “ladder” principle that must be adhered to strictly. Consequently, a release order is favoured at the earliest reasonable opportunity, and, on the least onerous grounds. If the prosecutor proposes an alternate form of release, the prosecution must show why this more onerous form of release is necessary. In every case, each ‘rung’ of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.
Subsection 515 (10) provides the grounds upon which an accused’s detention will be considered necessary: including,
- to ensure his attendance in court; (Primary Ground)
- to protect the public, victims, and witnesses, particularly if there is a likelihood that the accused will commit another offence or interfere with the administration of Justice if released; (Secondary Ground)
- to maintain confidence in the administration of Justice, bearing in mind specific circumstances such as the strength of the prosecution’s case, the gravity of the offence, 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. (“Tertiary” or Third Ground)
These grounds of detention are often referred to as the primary (ensuring attendance), secondary (protecting the public) and tertiary (maintaining confidence in the administration of Justice) grounds of detention.
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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