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| Patrick Ducharme |
Subsection 11(e) of the Charter provides that any person charged with an offence has the right not to be denied reasonable bail without just cause. The denial of bail must occur only in a narrow set of circumstances and the 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.
When a person is arrested, with or without a warrant, and is not released, the police must bring the person before a Justice without unreasonable delay and in any event within 24 hours, or, where a Justice is not available within that time the person must be brought before a Justice “as soon as possible”. Failure to comply with this requirement would likely lead to an application by an accused pursuant to section 9 of the Charter on the basis of arbitrary detention. The remedy that the applicant would seek would be a stay of proceedings.
The opening portion of the tertiary ground found in subsection 515(10)(c) that purports to permit detention “on any other just cause being shown” has been found to be unconstitutional.
Although the circumstances of an accused may fall within subsection 11(e), the underlying philosophy of the interim release provisions is that prior to conviction, pending criminal charges should not constitute evidence that the accused is a danger to the public or a person who will fail to attend for trial and therefore should be detained in custody.
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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