Without a doubt, a bail hearing is one of the most important events in any criminal proceeding. As noted in my previous article on the challenges with delayed trial dates, it isn’t common for an accused person to wait a year or more for their trial.
If they are denied bail, they will wait that entire period of time in jail. This can create pressure on individuals to accept a plea deal (and the conviction that goes along with it) in order to secure an early release from jail. Those who are in jail also face significant challenges in preparing for their trial – access to a lawyer and the materials required to prepare for trial are far more limited for those in custody than those who are are on bail.
For all these reasons, it came as welcome news to criminal defence lawyers across the country when the Supreme Court of Canada issued its decision in R v Antic last month.
Kevin Antic was charged with drug and firearms offences. He lost his bail hearing and so he applied to the Superior Court for a review of his detention order on two separate occasions. He succeeded on his second attempt and was released. The Crown appealed the decision to the Supreme Court of Canada. Writing for the majority, Justice Wagner agreed that Antic should be released, although for different reasons than those arrived at by the Superior Court.
In the course of reviewing the Superior Court’s decision, Justice Wagner reaffirmed a principle that is easily forgotten in a bail hearing: the starting position of a judge or Justice of the Peace (both can decide bail) at a bail hearing should be an unconditional release. It is only as the circumstances of the accused and the case require it that conditions and financial requirements should be added. Any of these additional restrictions on a bail order must be made in response to the case before the court, and not simply because of what is common practice.
At the hearing of Antic’s appeal, lawyers provided studies showing that there are significant differences between how bail is dealt with in different provinces. In particular, lawyers pointed to studies which show that courts in Ontario require the use of a surety bail (where a family member or friend of the accused must come forward to make a financial promise to secure the release of the accused) much more often than in other provinces. Given that the sections of the Criminal Code that govern bail apply to all provinces and territories equally, this shouldn’t be the case.
If it is implemented correctly, Justice Wagner’s decision should result in a more uniform approach to bail across Canada an approach that focuses on the particular circumstances of the case, and not simply an application of what is usually done in a given city or province. This decision is an important reminder to all members of the criminal justice system that it is contrary to an accused person’s Charter rights – particularly, the right to a reasonable bail and the right to be presumed innocent – to apply a rubber stamp approach when creating bail orders.
Although it wasn’t addressed directly in the decision, R v Antic touches upon an important aspect of criminal courts that is often overlooked: most people who are charged with criminal offences are marginalized in some way. Most of these people also suffer from financial difficulty. The surety system of bail, which requires the accused to bring someone to court that can promise a sum of money in order to secure a release, hurts those with a low income.
Accused people who face financial barriers are often incapable of finding someone who has enough money to meet the court’s financial requirements (i.e. an eligible surety). This creates the risk that they will remain in jail because of their financial status, exacerbating the marginalization that already exists within the system. Hopefully, by following Justice Wagner’s directive, this problem can be reduced.
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
