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| Patrick J Ducharme |
Another closely related principle of restraint in bail is the “ladder principle.” The Supreme Court of Canada in R. v. Antic1 expressed in clear terms that, except for a limited number of exceptions, an unconditional release of the accused on an undertaking, the most lenient form of release, is the default position when granting release. Other more onerous forms of release are to be imposed according to the ladder principle: a principle that is to be followed assiduously. Presiding Justices are instructed by the Supreme Court of Canada to consider all forms of bail beginning with the least onerous type of release and only moving to the next more stringent form of release if the lesser stringent release can be rejected on reasonable grounds. Consequently, release of the accused, at the earliest reasonable opportunity and on the least onerous grounds, is the principle that should guide the police, prosecutors, and the court.
The practical effect of this decision is that if a prosecutor proposes an alternative form of release, one more stringent or onerous than any other form of release available to the accused, the prosecutor must prove why the more onerous form of release is necessary. The court in Antic emphasized that each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.
The court in Antic was critical of the overuse of recognizances with sureties by our courts prior to their decision. The court described recognizances with sureties as one of the “most onerous forms of release” and therefore one that should not be imposed unless all the less onerous forms have been considered by the court and rejected as inappropriate, and, with specific reasons as to why less onerous forms of release are, in fact, inappropriate.
The 2019 amendments have now incorporated the “ladder principle” in the Criminal Code provisions related to bail. If, for example, an accused is asked to deposit money or property or other valuable security in return for his release, Judges must now favour a “promise to pay” over a deposit if the asset(s) being pledged are “reasonably recoverable.”
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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