SCC Clarifies Rules for Awarding Bail

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The Supreme Court of Canada has clarified the rules surrounding bail decisions, making it less likely that Canadians living in poverty will be denied bail because they cannot afford a cash deposit.

R. v. Antic is the result of a series of bail reviews by Kevin Antic. Mr. Antic was originally charged with a number of drug and firearms offences. According to the SCC ruling, he is legally a resident of Ontario, but has no significant assets in Canada. He was initially denied bail, but on the first review Antic offered both a pledge or deposit of money in addition to sureties on his father’s and grandmother’s part to address any possible flight risk.

The bail review judge denied this, speculating that Mr. Antic would, were his grandmother’s home to be put up as surety, flee confident that the government would not seize an elderly woman’s home. He further wrote “that he would have released Mr. Antic if he could have imposed both a surety and a cash deposit as release conditions in order to satisfy the flight risk and safety concerns.” (at para 13) But this condition was not possible, as bail consisting of both a surety and a cash deposit are only available to those not ordinarily resident in a province.

Section 515 governs, in the language of the Criminal Code, “judicial interim release,” or bail. Since 1972 and the Bail Reform Act, bail provisions have been structured to avoid, as much as possible, undue hardship on the part of Canadians living in poverty. This is done through s. 515(3), or the “ladder principle” which states that bail judges are to award the least severe form of bail, unless the prosecution is able to show why a more severe form should be ordered instead. The different forms bail can take are listed in s. 515(2):

(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released

(a) on his giving an undertaking with such conditions as the justice directs;

(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or

(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.

At issue in this case was s. 515(2)(e), and its requirement that the accused not be a local resident before both surety and cash deposit for bail could be awarded. The Bail Judges all felt that Mr. Antic posed a flight risk, and believed that a cash deposit in addition to a surety would be sufficient to address that risk. But this had the effect of simply denying him bail because he could not deposit a sufficient amount of cash.

In his third bail review, Mr. Antic challenged the relevant bail provisions in the Criminal Code on the grounds that they infringed s. 11(e) of the Charter of Rights and Freedoms. The bail review judge agreed on the basis that the only viable bail options for Antic (cash deposit and surety) were barred because of the geographic limitations within that provision. These restrictions had the effect of denying him bail without just cause. And so the trial judge severed and struck down the geographical restrictions, and ordered Mr. Antic’s release with a surety and $100,000 deposit.

The SCC clarified that this structure was not intended: “Parliament included cash in the most onerous ‘rungs’ of the ladder for added flexibility, not because cash is more effective than other release conditions in ensuring compliance with bail terms.” (at para 48) In short, both a surety and a deposit of cash are merely intended to create a financial incentive for complying with the terms of the bail and for the accused to attend trial. But both are equally coercive, and so the bail court and review judges erred in assuming that cash deposit was better than a surety.

Further, the SCC pointed out one other error on the part of the bail review judge: “A justice or judge cannot impose a more onerous form of release solely because he or she speculates that the accused will not believe in the enforceability of a surety or pledge.” (at para 54). The bail system is based on a series of promises and consequences—but to try and make conditions more onerous on the suspicion that a promise will not be kept is not the business of a bail judge.

Lastly, in paragraph 67 of the ruling, the SCC provided a useful series of considerations to help make bail decisions uniform across Canada. These 11 principles and guidelines include clear instructions on how the “ladder system” of s. 515(2) should be applied in all criminal courts. This guidance will—ideally—make the bail court system more equitable, and ensure that no one who could not afford bail will be denied their s. 11(e) rights.

This blog post was written by a CCLA summer legal volunteer. Views expressed do not necessarily reflect the view of the CCLA.