The case of R. v. Tunney (linked below) started as a routine bail hearing in Newmarket where Mr. Tunney was released with both a surety and conditions. Later, in November of 2017, Mr. Tunney appeared in the Superior Court to vary his bail and seek less onerous conditions. Mr. Tunney was granted his requested bail variations, but the original conditions were so alarming that Justice Di Luca felt it appropriate to write lengthy reasons with his decision. The ruling in Tunney stands as a prompt reminder that the Supreme Court’s decision in R. v. Antic is binding law, not a polite suggestion.
It is difficult to grasp the importance of Antic and Tunney, however, without understanding the structure of bail procedure in Canada.
In the majority of bail hearings, where the accused is not already on probation or facing a small number of select charges under section 515(6) of the Criminal Code of Canada, the Crown bears the burden of proving that the accused should not be released on bail further to section 515(1). The Crown has three grounds, outlined at section 515(10). These are known as the Primary, Secondary, and Tertiary Grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
Should the Crown seek detention of the Accused under section 515(1), it bears the onus (subject to the exceptions above) to prove that detention is necessary. Should the Court find that there are not compelling reasons under the Primary, Secondary, and Tertiary Grounds for the denial of bail, the Crown may argue for restrictions upon the liberty of the accused upon release. These restrictions on the form of the accused’s release are outlined in section 515(2) of the Code, and become more restrictive the list continues:
(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.
Again, the Crown bears the burden to show why a more restrictive form of release is justified. In making their arguments for conditions upon release, the Crown must adhere to what is called the “Ladder Principle”. This principle dictates that bail courts must presume that an accused should be released on the least restrictive release plan, their own recognizance. Each and every more restrictive form of release (each rung of the ladder) must be justified by demonstrating that the prior rung is inadequate.
In 2017, Justice Wagner wrote for a unanimous court in Antic, and reminded all participants involved in the bail system that the accused is presumed innocent, state intrusion should be as minimal as possible, and any intrusion beyond the minimum must be justified. Additionally, the Ladder Principle is a central part of the Canadian law of bail and a recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate.
Less than six months after the judgement in Antic was released, a number of decisions revealed that some Crown Attorneys and courts had already forgotten the recent Supreme Court decision and the Ladder Principle. Mr. Tunney’s bail hearing was regrettably one of these decisions. In this decision, the Crown proposed a surety with conditions and a monetary pledge as their first position. In Tunney, Justice Di Luca pointed out a number of flaws in the contemporary application of the bail system, but three stand out.
Firstly, the widespread overuse of sureties has been consistently criticized for delays in the bail system, undermining the presumption of innocence, and undermining the accused’s right to reasonable bail. This reliance has become “near automatic” and constructively creates a reverse onus scenario where the accused has to prove why a surety isn’t required. Furthermore, sureties are not a prima facie requirement and are explicitly listed lower on the list of possible bail conditions in section 515(2).
Secondly, court time and resources (while the accused is being detained) are being wasted to approve sureties. In many locations, Justices of the Peace are able to approve sureties by attendance “over the counter” or in chambers. These options are a more efficient use of court resources and more convenient for sureties.
Third, the Justice of the Peace brushed Antic aside by distinguishing it “on the facts” after noting that defence counsel was “relying heavily” on it. In his decision, Justice Di Luca states that Antic cannot be distinguished on the facts and any attempt to do so misses the point. He emphasizes at paragraph 45 that:
“Antic is a binding precedent from the Supreme Court of Canada that must be followed. It is a decision that reviews and explains the law of bail in Canada and seeks to recalibrate the bail process across the country. Importantly, it reminds all members of the justice system that reasonable bail is a constitutional right and that the Criminal Code contains a mandatory procedural code that includes certain presumptions that are integrals linked with the various steps of the bail ladder.”
At the end of the decision, at paragraph 57, Justice Di Luca recognizes that there is an inherent comfort in tradition and that change is uncomfortable. He then draws a parallel between Antic and the decision of R. v. Jordan and emphasizes that both call for a change in the culture of the justice system and that both stand for a clear message – “we need to do things differently.”