3.18 Judicial Interim Release

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

November 6, 2017

Table of Contents

1. Introduction

A person in Canada charged with a criminal offence and arrested can either be released into the community to await trial or be detained in custody pending trial. The decision whether to consent to release or to oppose it and seek detention of the accused is one of the most important and challenging decisions made by Crown counsel. This decision, made early in the criminal process, requires a balancing of interests that may conflict. Those include the accused’s liberty interest, the protection of the community including victimsFootnote 1 or witnesses, society’s interest in ensuring that accused persons attend court, and the reputation of the administration of justice and public perception of the criminal justice process.Footnote 2

The right not to be denied reasonable bail without just cause is a right enshrined in section 11(e) of the Canadian Charter of Rights and Freedoms (Charter). All forms of pre-trial release are protected by section 11(e).Footnote 3 The grant or denial of bail also implicates the accused’s liberty and security of the person interests protected by section 7 of the Charter, as well as the presumption of innocence in section 11(d).Footnote 4

The other interests to be considered by the Crown (and, ultimately, the court) in making this important decision are reflected in the grounds for detention set out in section 515(10) of the Criminal Code, and include the “protection or safety of the public, including any victim or witness”: section 515(10)(b). In addition, the Crown (and the court) must be concerned with the need to “maintain confidence in the administration of justice.”Footnote 5

2. General Principles Governing the Exercise of Discretion

Part XVI of the Criminal Code sets out for all persons charged in Canada with a criminal offence the regime for judicial interim release, including release by both police and the courts. In Morales, the Supreme Court of Canada described section 515, a key provision in Part XVI, as “‘a liberal and enlightened system of pre-trial release’ under which an accused must normally be granted bail.”Footnote 6 A unanimous Supreme Court of Canada noted in St-Cloud: “it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.”Footnote 7 There is no class of offence for which bail cannot be granted.Footnote 8 It is always a consideration.

The Crown’s decision whether to seek detention or consent to a person’s release plays a key role in the functioning of the bail system, as illustrated in the following:

Crown counsel are expected to exercise discretion to consent to bail in appropriate cases and to oppose release where justified. That discretion must be informed, fairly exercised, and respectful of prevailing jurisprudential authorities. Opposing bail in every case, or without exception where a particular crime is charged, or because of a victim’s wishes without regard to the individual liberty concerns of the arrestee, derogates from the prosecutor’s role as a minister of justice and as a guardian of the civil rights of all persons.

Because the police and the prosecution have significant discretion to exercise respecting the release of accused persons, the administration of criminal justice logically expects that these parties will not simply dump all bail decisions into contested hearings before the courts. Not only does this serve to choke the operation of the bail courts but, as said, the statutory and constitutional regime demands otherwise.Footnote 9

Section 515(10) of the Criminal Code sets out the grounds on which bail can be denied. They are referred to as the primary (515(10)(a)), secondary (515(10)(b)), and tertiary (515(10)(c)) grounds.Footnote 10 Crown counsel should consider each of those grounds in arriving at their decision regarding a position to advance on release or detention.

The Supreme Court of Canada’s decision in St-Cloud makes clear that all three sets of grounds, primary, secondary and tertiary, are equally capable of justifying a detention order. It can no longer be said that the tertiary ground is a residual ground for use only where the primary and secondary grounds are not made out. “It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.”Footnote 11

The decision to seek detention or consent to release should be made in a principled way, according to criteria relevant to the grounds set out in section 515. The criteria identified in paragraph 3.3 of chapter 2.3 of the PPSC Deskbook, “The Decision to Prosecute”, as being irrelevant to the decision to prosecute are likewise irrelevant to the decision regarding bail. In addition, Crown counsel should not treat as a factor relevant to the exercise of their discretion that detention may increase the likelihood that an accused will plead guilty, plead guilty sooner, or make it likely that the accused will expedite the judicial process.

Paragraphs (a) to (e) of section 515(2) set out the increasingly restrictive types of release available in circumstances where the police have not exercised their ability to release an accused under sections 496 to 499. Sections 515(2)(a) to (e), when read in combination with section 515(3), are sometimes described as enshrining the “ladder principle.” Crown counsel should be able to articulate a reason why a less restrictive release provision is not appropriate in each case where a less restrictive provision is not applied.Footnote 12 A unanimous Supreme Court of Canada has described the ladder principle in Antic, noting that “[e]ach provision, moving from section 515(2)(a) to section 515(2)(e), involves more burdensome conditions of release for the accused than the one before it.”Footnote 13

Although the law is not settled on this point, the preferred view is that the ladder principle applies even in reverse onus situations.Footnote 14 In practice, this means that when the accused faced with a reverse onus situation attempts to demonstrate why he or she should be released, they are entitled to start by advocating for the least burdensome form of release.

The Crown should not oppose bail merely for the purpose of permitting the police or an investigative agency to complete their investigation. Where, however, the police are continuing with the investigation following the arrest, it is legitimate to consider whether the accused, if at large, may interfere with the investigation, by destroying evidence, tampering with witnesses or otherwise interfering with the administration of justice. Such concerns may be relevant to the secondary ground for detention as described in section 515(10)(b) of the Code.

Crown counsel should consider each of the criteria of section 515(10)(c) in determining whether to rely on the tertiary ground to seek detention, and should speak to each when making submissions for detention, so that the trier of the issue can comply with section 515(5).Footnote 15 In Dang, a post-St-Cloud case, Trotter J, conducting a bail review of a detention order based on both secondary and tertiary grounds, noted in dealing with the tertiary ground, that “[a]n accused person’s plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released.”Footnote 16

3. The Exercise of Crown Discretion and Indigenous Accused

In Gladue, the Supreme Court of Canada recognized the denial of bail for Indigenous persons as an “unfortunate institutional approach that is more inclined to refuse bail.”Footnote 17 In Summers, that Court noted that “Aboriginal people are more likely to be denied bail, and make up a disproportionate share of the population in remand custody.”Footnote 18

Crown counsel’s decision whether to oppose or consent to release should take into account an accused’s individual background and risk factors. For Indigenous accused, Crown counsel should be mindful of the Gladue factors relevant to bail when deciding whether to seek detention or consent to release, and be prepared to engage in a dialogue with the justice about the impact of Gladue factors at the hearing.Footnote 19 For example, seemingly neutral factors which might influence the decision to seek detention in other circumstances, such as unemployment, lack of stability in housing, or sureties without significant means, may simply be reflective of social conditions in a given community. Crown counsel are strongly encouraged to consider the appropriateness of all available alternatives for bail, including any bail supervision programs in place of surety release.

4. The Bail Hearing

The nature of, and approach to, the bail hearing was aptly described by Hill J in Villota:Footnote 20

[72] Although a show cause hearing is not a trial, it is nevertheless an adversarial proceeding. As noted by this court, however, the orderly conduct of bail hearings is best achieved with goodwill and cooperation of counsel: Regina v John, [2001] OJ No 3396 (QL) (SCJ), at paras 32, 54 [summarized 51 WCB (2d) 24]. Similar observations appear elsewhere: Report of the Attorney Generals Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the Martin Committee Report, 1993) at 44-45; Report of the Criminal Justice Review Committee, supra, at 5, 102-104. Formalism and inflexibility are undesirable. Professor Trotter, in The Law of Bail in Canada, supra, at 198, quite rightly comments that there is a need in bail hearings to resolve the tension between fairness and efficiency. As noted at p 45 of the Martin Committee Report, because there are co-operative dependencies in the administration of criminal proceedings, each of the participants independently possesses the power to nullify the system’s continued viability. Within reasonable bounds, bail hearing procedure should be sufficiently flexible to promote both a fair and an expeditious proceeding.

Section 518(1)(e) of the Criminal Code provides that the judicial officer hearing a bail matter may receive and base the decision on evidence considered “credible or trustworthy.” Notwithstanding the apparent breadth of that description, counsel should not lead evidence on a show cause hearing that the Crown knows to be unavailable, unreliable, or inadmissible.

Crown counsel should ensure that the important decisions about bail are made on the basis of sufficient credible and trustworthy information about the accused and about the offence. It is not uncommon for the arrest of an individual to take place before the investigation is complete. If additional information is required to inform the Crown’s decision-making or to present at the hearing, Crown counsel may request an adjournment of bail proceedings. Under section 516(1), adjournments of proceedings may be granted for up to three clear days, unless the accused consents to a longer adjournment. Crown counsel should not request bail hearing adjournments for administrative convenience or to pursue evidence unnecessary to the bail hearing.

The Crown’s decision on a bail position must be made independently by the prosecutor. Crown counsel are nonetheless expected to consult, if possible, with the relevant police force or investigative agency regarding the release or detention of the accused, particularly regarding safety concerns for victims and witnesses. In such cases, Crown counsel should consider consulting with the victim or witness prior to conducting the bail hearing.

5. Conditions of Release

Sections 515(4), (4.1) and (4.2) set out the types of conditions that a justice may (and in some cases must) impose on release. The conditions sought by the Crown, if any, “should be the least restrictive conditions that are consistent with securing public safety, attendance at court, and respect for the administration of justice, as reflected in section 515(10).” Footnote 21 Crown counsel “should be diligent to ensure that conditions of bail applied to accused persons” judicial interim release orders are reasonable, necessary and directly related to:

Sections 515(4.2) and (4.3) provide for specific orders for the protection of any person including victims, witnesses or justice system participants in relation to certain offences identified in those sections. See also the PPSC Deskbook for more detailed guidance: paragraph 3.2 “Judicial Interim Release” in chapter 5.5 “Domestic Violence”, and paragraph 4.4 “Bail Hearings” in chapter 5.6 “Victims of Crime.”

Crown counsel should not seek to impose conditions for the purpose of punishing the accused or for the purpose of reforming the accused. Doing either is not in keeping with the presumption of innocence. Conditions should instead, as indicated above, be carefully crafted to directly address the test for release on bail. Crown counsel should exercise restraint in seeking conditions which may be impossible for the accused to meet, unless necessary for the accused’s release into the community according to the test for bail. The Canadian Civil Liberties Association noted the wide-ranging consequences that flow from unnecessarily restrictive conditions: Bail courts must be more attuned to the ways in which bail conditions—in particular, no-contact orders, curfews and movement restrictions or zone exclusion orders—can fundamentally and unjustifiably impair a wide range of constitutional rights.”Footnote 24 [Emphasis added].

6. Surety Release

“The presence of a prospective surety in court is not a jurisdictional or essential prerequisite to the conduct of a judicial release hearing.”Footnote 25 Crown counsel should require the use of a surety to enable release of the accused only in circumstances where it is necessary. Many accused will not be able to find a surety.Footnote 26 Even those who can do so often have difficulty doing so while in custody, prolonging their incarceration.

Surety release should not be the default or starting position for release. In keeping with the ladder principle, the less onerous forms of release referred to in section 515(2) should be considered and rejected before seeking surety release.Footnote 27

Crown counsel have an important role to play in assisting the court with determining whether a proposed surety is satisfactory. Crown counsel should take appropriate steps to satisfy themselves that the proposed surety is suitable and understands their role.Footnote 28 There are several options available to Crown counsel to assist in determining the suitability of proposed sureties. Crown counsel may make inquiries of the investigative agency, or examine witnesses called at the bail hearing. While it is not the Crown’s role to provide legal advice to the proposed surety, it would not be inappropriate to point the proposed surety to government-supplied information on the role of a surety.Footnote 29

Although the practice is common in some jurisdictions, strictly speaking, sureties are not required to testify at bail hearings. Crown counsel should not routinely insist that sureties be present in court during the bail hearing, and should not routinely adjourn bail hearings so that sureties can be present.Footnote 30 For many sureties, the process is disruptive, often requiring that they miss work to attend court, for example. However, certain fact situations might properly require surety testimony, such as where the accused proposes to live with the surety. Crowns should consider whether there is an alternative to testimony from the surety to assist the court in determining whether the use of a surety, and a particular person as a surety, is appropriate.

7. Crown Obligations to Victims and Witnesses

Victims and witnesses may have a significant interest in whether an accused person is released from custody. Crown counsel should be aware of the interest of victims and witnesses in the release of the accused on bail, particularly in situations where the conduct reflected in the charges may imply a potential threat to the victim or witness. Section 515(4)(d) provides for a non-contact order as a condition of release. Section 515(12) provides that even where an accused has been detained, the justice may order that the accused abstain from communication with a victim or witness or any other person named in the order. Section 515(13) requires the justice to specifically state that he or she has “considered the safety and security of every victim of the offence.”

Crown counsel must communicate information related to the bail proceedings to victims and witnesses and ensure that they are informed about the custodial status of the accused following the bail hearing. Section 515(14) requires the justice to provide a copy of the order to any victim of the offence upon request by the victim. See Deskbook chapter 5.6 “Victims of Crime”, paragraph 4.4 “Bail hearings.”Footnote 31

8. Bail Forfeiture

Part XXV of the Criminal Code, “Effect and Enforcement of Recognizances”, provides the legal and procedural framework for the enforcement of recognizances, including forfeiture of a recognizance: section 771.

In exercising discretion on whether to pursue forfeiture proceedings, Crown counsel should consider the following factors:

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