The Law on Bail Has Failed Canadians: A Proposal for 469 Recalibration

This discussion does not aim to provide a comprehensive explanation of the law of bail in Canada, which is sufficiently complex to fill entire books, as many have done. Nor does this intend to cover other forms of releases such as Undertakings to Peace Officers, or Promises to Appear.

For the purpose of understanding the discussion and suggestions below on how revisions to bail targeting repeated violent offenders can be more effective, a simplified explanation of the mechanisms of bail is as follows:

1. Charter Rights: Under section 11(e) of the Charter of Rights and Freedoms, everyone charged with an offence has the right “not to be denied reasonable bail without just cause.” The terms “reasonable” and “just cause” are interpreted by courts, with the Supreme Court of Canada’s rulings binding on all other courts in Canada.
2. Supreme Court Interpretation: The decisions of the Supreme Court of Canada have a determinative effect on determining who is released and who is not, as they set out binding principles and the interpretation of statutory wording that must be applied to all individuals charged with an offence. Put another way, Courts must follow the Supreme Court’s interpretations of the Criminal Code of Canada, and the Charter.
3. Statutory Framework: Section 515 and its subsections of the Criminal Code of Canada lay out the statutory law governing how bail is granted, denied, or varied. These provisions are interpreted by the courts, with the Supreme Court of Canada’s interpretations having binding authority over all other courts in the country.
4. Grounds for Detention:
   • Primary Ground: Concerns whether detention is necessary to ensure the person will attend court. Example: If someone has few ties to Canada and is a citizen of another country with no extradition treaty, and who has expressed a desire to flee if caught, then the court should detain them under the primary ground.
   • Secondary Ground: Involves assessing if there is a substantial likelihood of the person committing a criminal offence that might interfere with the administration of justice, the safety of a victim or witness, or where it is necessary for the protection of public safety. Example: A person who has a long criminal record of domestic violence and told police “she is going to pay for this” upon arrest for a similar offence of violence should be detained under this section.
   • Tertiary Ground: Considers factors such as the seriousness of the crime, the strength of the evidence, the circumstances surrounding the commission of the offence, whether a firearm was used, and whether there is a likelihood of a lengthy term of imprisonment. Example: Despite not having a criminal record, a person is tackled by police after shooting and injuring three people at a mall. In this case, the person should be detained under the tertiary ground.
5. The “469” Category: Section 515(11) adds a special category of offences that presumes detention until that person applies for bail before a Superior Court judge. These offences include: murder, treason, terrorism, inciting mutiny, intimidating Parliament, sedition, and piracy. 

As one justice has stated recently in the case of Peter Nygard’s application for bail in 2022:

A sea-change has occurred in recent years in the bail system in Canada. Four seminal cases from the Supreme Court of Canada have led to a reset – or at least a re-affirmation – of the fundamental tenets underlying the Court’s approach to pre-trial detention. – J.J.M. SCARFE J.P., R. v. Nygard, 2022 ONCJ 20

Those cases, spanning less than a decade, are R. v. St. Cloud (2015), R. v. Antic (2017), R. v. Myers (2019), and R. v. Zora (2020). These cases created a tectonic shift in the eligibility of an alleged offender’s release. To put it simply, it made it much easier and far less restrictive when that happened.

Before continuing further in explaining the significance of these decisions, it is important to understand that the law on bail is all manifested from and subservient to the Supreme Court’s interpretation of the simple phrase from section 11(e) of the Charter of Rights and Freedoms:

Any person charged with an offence has the right not to be denied reasonable bail without just cause

While s.515 and other applicable provisions lay out the law on bail, if the Supreme Court decides that any of these provisions are not congruent with section 11(e) of the Charter (and are not saved under section 1), then they are “struck down” or amended by the Court.

If, for example, a government came into power and decided that “no person may be granted bail if they are charged while on a recognizance” that would almost certainly be “struck down” and ruled invalid. In a scenario like this, it is where section 33 (the “notwithstanding clause”) could be applied. Critics of s.33 fear that such excessive measures might occur.

One may ask, “What does section 11(e) even mean?” and that is exactly the point. In short, the “reasonableness” “and “just cause” of when a person is what the Supreme Court says it is. This is where these cases become of key significance, or controversy depending on one’s view of the present state of the bail system in Canada. In interpreting these words, we wind up with the decisions noted above. While it is impossible to state every nuance of these key decisions and it is encouraged to read the decisions in detail. The key points of the totality of these bail decisions is as follows:

• The right not to be denied reasonable bail without just cause is an essential element of an “enlightened criminal justice system”
• Denying bail only happens in a “narrow set of circumstances”
• For most crimes, an “unconditional release” on an undertaking is the “default position” (no conditions)
• Bail conditions must be applied with restraint and the least onerous on the accused and sufficiently linked to statutory conditions such as attending trial, risk to reoffend, or maintaining public confidence in the bail system
• The “ladder principle” is a central part of Canadian law and must be adhered to strictly. The “ladder principle” requires that one starts with the least restrictive form of release and every rung of the ladder (i.e., more restrictive conditions) must be rejected before moving to the next rung
• Any restrictions must be related directly to the alleged offence and cannot be imposed to change the behaviour or to punish an accused
• Detention is only justified when it is necessary to promote the the proper functioning of the bail system and not for an extraneous or gratuitous purpose.
• Cash bails should only be relied upon in exception circumstances when a surety is not available and the amount must be relative to the individuals’ net worth to pledge that amount
• Courts must respect the presumption of innocence
• Bail must be applied consistently and fairly across Canada
• An accused is presumed innocent and should not be coerced into pleading guilty in exchange for release.

One might fairly critique these principles as extending far beyond the basic wording of the Charter and the applicable sections of the Criminal Code of Canada (primarily s.515); however, the Supreme Court’s words are just as much the law as the constitutional document itself.  The only manner the law changes in this regard is either by the Court restating their own interpretation, or the “notwithstanding clause” is implemented to override judicial declarations of constitutional compliance.

Binding judicial interpretation is thought to bring clarity and consistency across a nation. The rationale of the common law itself is premised upon superior courts defining what inferior courts can and cannot do. While clarity is important, it also takes away discretion of individual judicial officers (judges, justices of the peace) trying to decide what is “reasonable” or what is “just cause” in the alleged offender before them. Put another way, a judge or justice in Canada cannot simply say “I am detaining this person and find a release would be unreasonable  and dangerous in the circumstances” as that would fall short of all the Supreme Court’s mandated maxims above.

Indeed, the Supreme Court has gone so far as to define not only what “reasonable” means, but also what a “reasonable person” is:

“The justice’s balancing of all the circumstances under s. 515(10)(c) must always be guided by the perspective of the “public”, that is, of a reasonable person who is properly informed about the philosophy of the legislative provisions, the values of the Canadian Charter of Rights and Freedoms, and the actual circumstances of the case. The person in question is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society’s fundamental values. However, this person is not a legal expert, and, although he or she is aware of the importance of the presumption of innocence and the right to liberty in our society, expects that someone charged with a crime will be tried within a reasonable period of time, and knows that a criminal offence requires proof of culpable intent and that the purpose of certain defences is to show the absence of such intent, the person is not able to appreciate the subtleties of the various defences that are available to the accused. This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.”

Therefore, the “reasonable” Canadian is someone who applies such an intellectual framework, and also agrees with all the principles bullet-pointed above. Cynically put, the “reasonable person” is a judge of the Supreme Court of Canada, minus the legal expert.

Therein lies the controversy.

Many Canadians probably agree that people should have due process (be presumed innocent), the right to liberty, and that decisions shouldn’t be based on emotions. However, the consensus may break down when it comes to vague terms like “agrees with society’s fundamental values” and “thoughtful”, or the expectation that they remain confident in the justice system whether a person is detained or not. For many, this might seem circular—the definition of a “reasonable person” appears to be someone who simply agrees with the Supreme Court’s own interpretations.

What is undeniable, is that a lot of these “unreasonable” Canadians do not agree with who is being released our of custody under the carefully crafted bail regime and the “emotional reaction” is justified, even in the most “thoughtful” of persons.

To expand on the issue that was alluded to above: no law will change the present framework of judicial interpretation that applies to bail. Parliament could make every offence under the Criminal Code a “reverse onus” but it all all come back to the same interpretation of the law, as defined by the Supreme Court of Canada, once a person is before the Court.

From this practitioner’s view, once a bail hearing starts the status of a person being “reverse onus” or not bears little weight on the ultimate ruling on whether someone is released. The final application of law is the same regardless of onus for all intents and purposes. In either case, a person’s detention is “justified” or not; bail is “reasonable” or it is not – who bears that burden is somewhat irrelevant in the end. This is not to say there consideration isn’t applied to the accused’s behaviour leading up tot he offence and why it is a reverse onus, but the legislative framework as applied under the Supreme Court’s regime does little to change the odds.

Put in more practical terms, an accused who is on a bail and facing a “reverse onus” due to the nature of the offence is still entitled to “the ladder principle”, the least restrictive conditions possible relative to the circumstances, bail quantum that is capable of being met, release as the default assumption, etc. all provided that the detention is not “justified”. Think of it like a math problem. Whether the Crown has to add 2+2 = X, or the defence bears the burden of doing the math, the answer is the same because the rules to reach the equation are the same.

This is why bill Bill C-48 (and the many laws that have preceded it) changes nothing.

We are hearing more and more of the possibility of invocation of the notwithstanding clause. This highly controversial section is immediately met with reactions every time it is raised that “it was intended to be used sparingly”. As I stated on X last week:

While the intent may have been to use the notwithstanding clause sparingly, it is entirely lawful and constitutional . The inclusion was the compromise that allowed the Charter to become law. It was always contemplated that parliament (provincial and federal) have the ultimate say over courts on certain provisions (not all) of the Charter.

Legislatures may override sections 2, and 7-15 of the Charter. It also must be reenacted every five years for it to continue. It was also enacted when the SCC was far more deferential to parliamentary supremacy and thus employed far less frequently as a matter of effect. Since then, courts have become far more interventionist and pushing interpretation well beyond basic readings and into “purposive” intent.

This “purposive” interpretation has arguably left us with a number of crises that politicians now struggle with (such as dangerous individuals being released on bail). It’s likely we will see this clause used more as courts, particularly the SCC, prioritizes intervention over interpretation; ideology over clinical review. Courts appear more emboldened than ever before in deciding matters of policy that was the always the proper domain of the legislature. This inevitable frequency may be a reminder to courts that many matters of immense complexity of the political and economic domain is best handled through parliamentary debate and the mechanisms and tools behind that, instead of factums and timed oral submissions.

Bottom line: the Minister can use all the hyperbole and catastrophizing he wants but when the “purposive” interpretation of laws are failing Canadians and Courts’ solutions aren’t working, then there is an obligation for politicians to act, even if that means using a (constitutional) provision of the Charter to do so.

I continue to hold that opinion and find the idea that it was “to be used sparingly” both archaic, and a myth. Its use all depends on need, and politicians are more frequently making the argument that courts have become far too interventionist thus necessitating the “need”. Whether one agrees or not, it is an entirely constitutional option. Indeed, the “notwithstanding clause” is our constitution – s.33.

If invoked, it would likely apply is legislation tailored to address the specific Supreme Court principles manifested from s.11(e) of our Charter bullet-pointed above. While this would cause considerable controversy among some of the legal profession and academics, beyond that, its controversy is questionable whether Canadians would care. It would be unsurprising if many supported its implementation if it meant fewer people committing crimes while on bail. It is easy for many Canadians to believe the courts have fallen short in their obligations to protect them from violent offenders.

Canadians and their politicians could be easily forgiven for their ignorance of s.469 of the Criminal Code of Canada, let alone its special application to bail.

Section 469 lists out certain offences that only the Superior Courts in Canada have jurisdiction over. These offences include: murder, treason, terrorism, inciting mutiny, intimidating Parliament, sedition, and piracy. The Superior Court are Canada’s elite intellectual minds and preside over the most serious of cases. If you have ever sat on a jury, you have been before a Superior Court judge.

Since the courts inferior to the Superior Court do not have jurisdiction to preside over those listed in s.469, bail hearings on such matters are also addressed exclusively by the higher court. Police do not have the authority to release a person for those offences listed under s.469, nor does any inferior court. Individuals charged with such offences are “…[are] taken before a justice” and “the justice shall order that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.”

While the law on bail for 469 offences remains the same, the practical effect on the outcome of bail decisions for alleged offenders is profound. The differences are as follows:

1. A bail hearing is not automatic; it is applied for.  The alleged offender is detained “until dealt with according to law” which means until they apply to the Court for bail.
2. The hearing is taken out of the hands of extremely busy bail courts that are often overwhelmed with trying to manage hundreds of bail hearings in a week that range from the least serious, to most serious of offences. This pressure upon the court undoubtedly impacts the care a decision is reached and the time allowed to hear why bail is justified or not.
3. The hearing is placed before a Superior Court judge over a presiding Justice of the Peace (who in many cases, do not even possess a law degree)
4. Decisions are rarely immediate. It is not uncommon for a Superior Court judge to take days or weeks to properly decide whether a person is eligible for bail. While this happens, a person awaits their decision in custody.
5. There is a considerable amount of supporting documentation, including a required affidavit from the accused stating basic details about themselves, that offer expediency to the Court, transparency on the accused, and greater detail on the Crown’s allegations.

Other practitioners may think of several more significant differences but the main difference that is topical to present headlines is that s.469 protocols would eliminate “catch and release” effects that have undermined Canadian’s trust in the justice systems. At a minimum, anyone charged with a 469 offence has a significant “cooling off” period in custody as they await their lawyers to file and argue their release.

At present, Section 469 is reserved for a select few offences. One might argue that many more offences should fall under the exclusive purview of the Superior Court, which decides on the release of certain alleged offenders. If the legislative intent is to apply special scrutiny to specific offences that trigger a reverse onus provision, then integrating them into Section 469, or creating a separate provision that grants exclusive jurisdiction to the Superior Court to decide on bail, could be considered.

While expanding Section 469 to include more offences is an option, it risks overwhelming the Superior Court’s exclusive jurisdiction to preside over matters. In reaching the end of exclusive bail, it would also take on many cases that might otherwise resolve or be tried in the lower courts. It would also require Superior Courts to try minor matters that place individuals in a technical reverse onus (such as a breach of a bail).

However, there is a simple legislative change that target those offences that are already subject of concern, namely those listed as “reverse onus”.

Section 515(6) already lists offences that are “reverse onus”. It states:

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged (with)… [followed by a long list of offences and conditions to trigger in (6)(a) to (d)]

Despite this strong wording, the practical effect is almost always the same when a bail hearing commences as a) requires a bail hearing to be heard as soon as practicable, and b) the same principles of bail as articulated by the Supreme Court (favouring release, the ladder principle, and the least restrictive conditions suitable), a person is released with the conditions slightly ratcheting up as the default. Hence the “catch and release” concern that is circulating. 

However, if the intention is to ensure that certain offences and alleged offenders who show patterns of disregard for complying with court orders or public safety receive special scrutiny, then bringing their cases before the Superior Court of Justice would significantly alter the manner and pace at which these individuals are either released or detained.

The statutory amendment could clearly state (i.e. s.469.1) , “Every court of criminal jurisdiction has jurisdiction under Section 515 except those listed under s.515(6),” and delegate exclusive jurisdiction to the Superior Court.

If implemented, “reverse onus” offences and circumstances would lead to automatic detention orders until an accused applies for bail in the Superior Court. This approach would presumably withstand constitutional scrutiny, as it already applies to numerous offences listed under Section 469, with their constitutional validity upheld at the time of this writing. It would be surprising for the Supreme Court to single out specific offences that cannot be under the exclusive jurisdiction of the Superior Court or those that necessitate automatic detention orders until resolved according to law.

Should this approach prove unsuccessful, the notwithstanding clause remains an available option.