Is the Bail System Too Lenient on Gun Crimes?

Written on Behalf of Affleck & Barrison LLP

The right not to be detained before trial is fundamental in the Canadian justice system and is a guaranteed right under section 11(e) of the Charter of Rights and Freedoms.  Furthermore, the principle that an accused should be released on the least onerous form of bail unless the court is shown otherwise is called the “ladder principle” and can be found in section 515(3) of the Criminal Code of Canada.

Critics, including Toronto Police Chief Mark Saunders, have placed some of the blame for the rise in gun violence in Toronto on the “too lenient” bail system. 

Last summer, Chief Saunders urged the courts to stop granting bail to repeat gun offenders.  He reported that approximately 326 people who were charged with firearm related offences were currently out on bail in Toronto.  Chief Saunders stated:

What we are hoping to do is establish a stronger relationship with our courts to let them know that the impacts of these types of offences are having within our communities. We are feeding the same machine that is disconnected and there has to be that alignment from all aspects.

Premier Doug Ford has also been recently reported as saying “[o]nce we catch these criminals, we have to lock them up and thrown the key away.”

Mayor John Tory has made similar comments regarding the bail system in Canada and made the following statement made last summer:

Repeat gun offenders simply shouldn’t be out on bail.  While each case is different, sentences simply must fit the extreme gravity of these gun crimes.  And right now, they often don’t.”

On the other hand, criminal defence lawyers maintain that it is almost impossible to get bail if you are a repeat offender. 

Michael Lacy, president of the Criminal Lawyers’ Association, stated:

People aren’t running around on bail if they are at serious risk of committing offences.  It’s just not the reality. It’s notoriously difficult to get bail when it’s a gun offence.

WHAT IS BAIL?

Bail, also known as “recognizance” or “judicial interim release”, is the temporary release of an accused individual while awaiting a criminal trial.

If a person accused of a crime is taken into custody and held in jail until they appear in court, a bail hearing must be held within twenty-four hours or “as soon as possible”, if a justice is not available. 

If the Crown prosecutor and an accused’s defence lawyer can agree to conditions for the accused to be released on bail, the accused will still need to appear in court and a justice will confirm that all parties haave agreed to the conditions and the next court date will be set.

If conditions cannot be agreed to between the two parties, a “show cause” bail hearing, which is not a trial, will take place where a Judge will decide whether or not the accused can return to the community while awaiting the criminal court case.  If bail is denied, the accused will be kept in custody until the trial.

The Crown prosecutor must “show cause” as to why the accused should not be released from custody.  The Crown will summarize the nature of the offence, the evidence against the accused and the factors that will assist the court in making a decision.  The court will take into account the need to ensure the safety of victims or witnesses, the seriousness of the charge and whether the crime involves violence.

In Canada, the preference is to release those charged with a crime at the earliest opportunity and without cash bail (under certain circumstances). 

At a bail hearing, the Judge will detain the accused if the Crown can establish any of the following three grounds (section 515(10) of the Criminal Code of Canada):

  1. It is necessary to detain the accused to ensure that he/she will appear in court;
  2. It is necessary to detain the accused to protect the safety of the public; or
  3. It is necessary to detain the accused in order to maintain the confidence in the administration of justice.

TIPS TO PROCEED WITH A BAIL HEARING

Affleck Barrison LLP would like to recommend the following tips when preparing to appear at a bail hearing:

  1. Retain experienced criminal defence legal counsel immediately.
  2. Ensure that anyone who is intending to act as a surety (an individual who agrees to take responsibility for the accused and may have to pledge some assets or money as assurance that the accused will comply with the bail conditions of release) is present on the date of the bail hearing.
  3. Dress appropriately and ensure that your surety is also dressed in appropriate attire to convey the message that all parties respect the criminal justice system.
  4. Be prepared to address any questions regarding the proposed plan of release.
  5. Be sure to have any documentation that will assist in proving what assets you have.
  6. Be prepared to return to court on another date.

We will provide updates in this blog should any changes be made to the current bail system in Canada.

In the meantime, if you or a loved one have been arrested and are facing a bail hearing, it is important to have experienced criminal defence counsel to represent and advocate on your behalf.  Time is of the essence and understanding what options are available is important.  The lawyers at Affleck & Barrison LLP have many years of experience representing clients at bail hearings and will work tirelessly to ensure their clients receive exceptional legal representation.  Contact our office online or at 905-404-1947 to speak with a knowledgeable criminal defence lawyer if you are facing a bail hearing.