Ontario Crown Prosecutors Ordered to Get More Individuals Out on Bail

Written on Behalf of Affleck & Barrison LLP

Ontario’s current bail system is simply not working. It has been reported that almost 70% of the individuals held in Ontario’s jails are waiting for their case to come before the courts. Individuals kept in jail may ultimately end up serve more time awaiting trial than if they were convicted.

We’ve previously blogged about the government’s attempts to make the justice system faster and fairer. On October 30, 2017, Ontario’s Attorney General announced a new directive as part of the Crown Prosecution Manual to help make the bail system faster and fairer. This directive will be used to provide support and guidance to Crowns (i.e. prosecutors) and will be released in the coming weeks.

BAIL HEARINGS IN CANADA

Following an arrest, an individual is either released pending the first court date or kept in custody. The right to not be detained before trial is a fundamental right in Canada and is codified in section 11(e) of the Canadian Charter of Rights and Freedoms. This right is based on the presumption of innocence (i.e. everyone is presumed innocent until proven guilty).

Everyone charged with a crime is entitled to reasonable bail unless the Crown can show just cause to deny it. The principle of “reasonable bail” refers to the terms of bail (i.e. monetary conditions and other restrictions).

A bail hearing determines whether an individual accused of a crime will be released from custody for the time leading to their trial date. In order to grant bail, the Court must consider the following three factors:

  1. Whether there is any risk that the accused will flee the Court’s jurisdiction (i.e. leave the city, province, or country) or fail to return to Court when required;
  2. Whether there is substantial likelihood that the accused will reoffend or interfere with the administration of justice if released on bail; and/or,
  3. Whether releasing the individual will undermine public confidence in the justice system.

The following factors must be considered by the Crown when determining whether the individual should be detained:

  1. Age of the individual;
  2. Presence or absence of a criminal record, related offences and breach of court orders;
  3. Concern that the individual will interfere with the administration of justice (i.e. coercion of witnesses, destruction of evidence);
  4. Presence or absence of outstanding charges in any jurisdiction;
  5. Need for and the availability of supervision of the individual while on bail;
  6. Any ties to the community; and,
  7. Availability of community supports.

GUIDANCE FROM THE SUPREME COURT OF CANADA

The Supreme Court of Canada has set the stage for the new bail policies in its recent decisions in R. v. Jordan and R. v. Antic. The Court stated that reasonable bail is a right that should not be denied without a very good reason.

In the case of R. v. Antic, the Supreme Court of Canada reiterated the proper approach for conducting a bail hearing by using the “ladder principle”. The Court sent a strong message that too many individuals are being held unnecessarily in custody before trial and too many individuals are subject to restrictive conditions and forms of release. Under the ladder principle, the starting position at a bail hearing should be unconditional release and only if the circumstances of the individual in question require it should any conditions and financial requirements be added.

In the Supreme Court of Canada case of R. v. Jordan, the Court set strict time limits for the completion of criminal cases, where there are no exceptional circumstances. The Court specified a maximum of 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice.

NEW BAIL DIRECTIVE

The main focus of the new bail directive is to keep more individual offenders out of jail while awaiting trial. The new policy should result in allowing more people charged with offences to be released with “realistic” conditions when warranted and only using sureties when necessary (the exception, rather than the rule). A surety is an individual appointed by the courts who promises to ensure that the individual complies with the conditions of their bail, and who puts up money that they may lose if they fail in their surety duties.

The directive recommends that the “ladder principle” be applied during bail hearings. This principle is codified in section 515(3) of the Criminal Code of Canada and simply states that an individual should be released on the least onerous form of bail unless the Crown shows reason to the court to proceed otherwise. The Crown must consider each “rung” of the ladder individually before rejecting it and moving along to a more restrictive form of release.

The new policy recommends that only necessary and appropriate conditions be imposed. Only conditions specific to each case should be recommended and should not be automatic. Conditions of release should be connected to the circumstances of the individual, the facts of the case, and meeting public safety concerns.

The directive further instructs Crowns to consider the unique circumstances that indigenous, low-risk vulnerable individuals and those with mental health and addiction issues face in being granted bail. The government will be introducing more assistance in the community for individuals who may need supervision and support, but who cannot attain a surety. For instance, the government has suggested the use of “bail beds”, which allow low-risk offenders to reside in a supervised home in the community while awaiting trial.

We will continue to monitor how this new directive is affecting the bail process in Ontario and will blog about updates as they become available.

If you have been charged with an offence or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.