Bail Directive - Judicial Interim Release
One of the fundamental presumptions in Canadian criminal law is that a person arrested and charged with an offence will be out of custody prior to trial. This is based on the presumption of innocence. The Criminal Code and legal decisions from the Supreme Court of Canada emphasize that liberty while awaiting trial is a basic principle underlying the judicial interim release process.
Upon arrest an accused may be released by police or brought before the court for a bail hearing. A bail hearing involves a balancing of potentially conflicting interests: the liberty interests of the accused and the Charter right to reasonable bail balanced against societal interests in public safety and confidence in the administration of justice. Where a hearing is held, the court determines whether the accused should be released with or without conditions and with or without sureties, or held in custody prior to trial.
An accused is presumed innocent and the Prosecutor must be aware of the impact of even a brief period of detention in custody upon an accused. Even a brief period of detention in custody affects the mental, social and physical life of the accused and their family. An accused is presumed innocent and must not find it necessary to plead guilty to secure their release.
The decision whether to consent to or oppose bail is one of the most critical decisions in the criminal process. It requires a consideration of competing interests including the interests of public safety, the accused and the victim. This process is complicated by the challenges of accurately predicting future conduct.
The appropriate exercise of prosecutorial discretion is fundamental to the proper functioning of the bail process. The Prosecutor must act with objectivity, independence and fairness in each case to ensure early, timely and principled decision making based on the circumstances of the accused and the offence and an appropriate use of legal principles without outside pressures or considerations. Decisions made by Prosecutors about consenting to or opposing release made in the proper exercise of their discretion will be supported by the Attorney General.
The accused should be released or a bail hearing should be held at the earliest opportunity having regard to the requirements of the Criminal Code. The Prosecutor should consider the least restrictive form of release and should not request a release with a surety (the most onerous form) unless each lesser form of release has been considered and rejected as inappropriate. As noted by the Supreme Court of Canada, the default position is the unconditional release of the accused. Any conditions that are requested should be necessary and required in the interests of the accused and the safety and security of the victim or public and related to the commission of the offence.
Where the Prosecutor believes that the release of the accused would jeopardize the safety or security of the victim or the public and such risk cannot be appropriately mitigated by some form of community based release with conditions, the Prosecutor must seek the accused's detention.
Additional principles and directions that apply to specific circumstances are particularized in specific Directives. Reference should be made to the following Directives: Firearms, Indigenous Peoples, Intimate Partner Violence, Mentally Ill Accused: Court Practices and Procedures, Offences against Children, Sexual Offences against Adults, Victims, Weapons Prohibitions and Forfeiture, YCJ: Court Practices and Procedures.
The Charter guarantees the accused right not to be denied reasonable bail without just cause. The concept of "reasonable bail" relates to the terms of bail, including any monetary component and other restrictions that are imposed on the accused, and requires the least restrictive form of release available consistent with the public interest.
The concept of "just cause" is limited to three grounds for detention which are defined by the Criminal Code:
- To ensure attendance in court
- For the protection or safety of the public
- To maintain confidence in the administration of justice.
Each of the three grounds is separate and independent from the others. There is no specific order in which the grounds are considered. The court decides which form of release to order and it is the court that determines and imposes conditions that are specific to the circumstances of the accused and the alleged offence and necessary to address the three grounds.
The Prosecutor should ensure that the bail hearing proceeds expeditiously and as effectively as possible. Wherever possible, the hearing should be conducted and completed on the first appearance of the accused in bail court. The Prosecutor should consider whether the hearing can be conducted by a factual summary and submissions without the necessity of calling evidence or by conducting a focused hearing dealing with only issues that are in dispute.
If the Prosecutor seeks an adjournment, it should be for as short a time as necessary. The reasons for the request should be stated in open court.
Factors to Consider
The Prosecutor should consider whether there is a reasonable prospect of conviction and whether it is in the public interest to proceed with the prosecution of the charges (see Charge Screening Directive). If the charge screening threshold is not met the charge should be withdrawn and the accused released. The Prosecutor should also consider whether a custodial sentence would be appropriate if the accused is subsequently found guilty. Detention should be rare if a custodial sentence is unlikely.
The Prosecutor must assess the circumstances of the alleged offence and the accused, including information relating to the victim, when determining a position on bail. This assessment must continue when new information is received. Information provided by the accused through counsel, may assist the Prosecutor in making a final determination on bail.
These factors must be considered by the Prosecutor regardless of whether the onus of showing why the accused must be detained, or not, is on the prosecution or the accused.
Circumstances of the Accused
- The age of the accused
- The presence or absence of a criminal record, including any convictions for violence, related offences and breach of court orders
- A concern that the accused will interfere with the administration of justice (e.g. coercion of witnesses, destruction of evidence)
- The presence or absence of outstanding charges in any jurisdiction, together with their nature and circumstances
- The need for and the availability of supervision of the accused while on bail
- Any ties to the community
- The availability of community supports.
The Prosecutor must consider the unique circumstances of Indigenous Peoples when an accused self-identifies as Métis, Inuit or First Nation. The Prosecutor should also consider the distance and remoteness of many Indigenous communities and the barriers that this creates for access to bail hearings and forms of release. A significant disadvantage is created since the accused is unlikely to have established connections or supports in the community in which the bail hearing is taking place. In these circumstances, seeking the detention of an Indigenous accused should remain an exceptional measure unless the release of the accused would jeopardize the safety and security of the victim or the public. Although the Prosecutor should keep in mind the principles referred to by the Supreme Court in Gladue, a Gladue report should not be requested by the Prosecutor for a bail hearing. Reference should be made to the Indigenous Peoples Directive.
When determining a position on bail, Prosecutors should recognize the circumstances of vulnerable and disadvantaged accused, including racialized populations, the homeless, the poor or those suffering from mental illness or addictions.These accused may not have access to the type of accommodation, resources, networks or supports that commonly exist for other members of the community.Pre-trial detention should never be used as a substitute for mental health or other social measures.
Circumstances and nature of the alleged offence
- Whether the offence involved violence or threats of violence
- Whether serious bodily harm was reasonably foreseeable
- Whether the offence harmed the victim (physical, psychological or financial) and/or community
- Whether the incident violated the sexual integrity of a person
- Whether the victim has provided input through police or a victim services agency
- Whether a weapon was used or threatened to be used
- Whether there was an intention to cause or attempt to cause substantial property damage or loss, and if so, whether the damage was reasonably foreseeable
- The interests of the community, including the needs of the victim.
The Prosecutor should consider whether the offence involved a spouse/intimate partner. Spouse/intimate partner offences are often committed in a context where there is a pattern of assaultive and controlling behaviour. Violence may go beyond physical assault and may include emotional, psychological and sexual abuse that is intended to induce fear, humiliation and powerlessness. The same general principles of bail apply to these cases, including the requirement for ongoing assessment of the strength of the Crown's case. Prosecutors should be sensitive to the needs of the victim and to the dynamics that exist in families where a partner is allegedly abused. The Prosecutor must be conscious of the potential increased risk of harm in these cases and must seek a detention order where she considers it necessary for the safety and security of the victim or the public. Reference should be made to the Intimate Partner Violence Directive.
Where the charge is an offence against the administration of justice, such as a breach of a court order, the Prosecutor should consider the extent of non-compliance, the seriousness of the alleged breach and any apparent reasons for the breach in determining her position on bail. The Prosecutor should also consider the gravity of the administration of justice offence and the underlying facts in proportion to the consequences of proceeding with the criminal charge.
Where an accused is arrested for breaching a condition of a release order and/or committing a new offence, the decision to cancel the previous release order should not be automatic but subject to consideration of the same factors set out above.
Options for Release
The Criminal Code permits a police officer to release an accused upon arrest. Where the police officer does not release the accused, the Criminal Code directs a court to release an accused on an undertaking without conditions unless the Prosecutor shows why a more onerous form of release or detention is warranted. There are certain offences for which the Criminal Code directs that the accused show why their detention in custody is not required pending trial.
There are several forms of release set out in the Criminal Code. The "ladder" principle requires that a justice not order a more onerous form of release unless the Prosecutor shows why a less onerous form of release is not appropriate. The "ladder approach" moves from the least restrictive to the most onerous form of release and permits the court to release in one of the following ways, with or without conditions:
- An undertaking, with or without conditions
- A recognizance without sureties with promise of money
- A recognizance with sureties with promise of money
- With Prosecutor's consent, a recognizance without sureties with deposit of money
- A recognizance with or without sureties, and a deposit of money where the accused does not live within 200 kilometres of place of arrest.
In determining her position on bail, the Prosecutor should apply the ladder approach. The Prosecutor should consider the least restrictive bail that still meets any concerns that have been identified. The Prosecutor shall consider each rung of the "ladder" individually and shall reject it before moving to a more restrictive form of release. This should be done by the Prosecutor whether the onus of showing why the accused must be detained, or not, is on the prosecution or the accused.
Although most accused persons will be released by the police or at a bail hearing, given the importance of the protection of the public, the Prosecutor must seek an order that the accused be detained in custody where she believes that the release of the accused would jeopardize the safety and security of the victim or public, and that such risk cannot be appropriately mitigated by some form of community-based release with conditions.
In some circumstances, concerns about public safety or attendance in court could be addressed by supervision in the community rather than detention of an accused. Such supervision should only be considered where it is necessary and appropriate and where lesser forms of release would be inadequate to meet those concerns.
Supervision may be available through a Bail Verification and Supervision Program or by a surety. Community groups or organizations may also be able to perform a supervisory role.
The Bail Verification and Supervision Program may require the accused to report to the police or the program and assists the accused in abiding by any conditions set by the court. The program may also help in accessing other community services or support the accused person. The program should not be expected to ensure absolute compliance with the release.
A surety is a person who assumes responsibility for the accused's compliance with their conditions of release by promising to pay a sum of money if the accused breaches any of those conditions. A recognizance with a surety is one of the most onerous forms of release and should not be automatic. The Prosecutor should not request a surety unless all the less onerous forms of release have been considered and rejected as inappropriate. If the Prosecutor has determined that a surety release should be requested, the surety approval process should be efficient, minimally intrusive and consistent with the principles of the Criminal Code. Although the surety approval process is ultimately up to the court, as a best practice the Prosecutor should generally use an affidavit of the surety and use an out of court approval process where available.
A surety or an accused may promise an amount of money (with or without deposit) that may be forfeited if the accused does not comply with the conditions of release, including not attending court.
The Prosecutor should not request a deposit of cash for the release of an accused if their surety has assets that can be promised. A recognizance with a promise of money is functionally equivalent to depositing money and has the same persuasive effect. Requiring a deposit of money should be relied on only in exceptional circumstances where a release on a recognizance with a surety is unavailable.
The amount of money promised must be within the means of the accused and their surety. The Prosecutor should not request an amount to be promised or deposited that is unattainable as that has the same effect as a detention order.
Conditions of Release
A court determines whether the accused should be released, with or without conditions and with or without supervision. The accused, the Prosecutor, sureties and a Bail Verification and Supervision Program may propose conditions of release for the court to consider. The court imposes conditions that are necessary and required in the interests of the accused and the safety and security of the victim or public.
The Prosecutor must ensure that any conditions she recommends on a bail release are necessary and appropriate to the circumstances of the accused and the alleged offence. The Prosecutor should only request conditions that are necessary to ensure public safety or to ensure attendance, and with which an accused can realistically comply. The conditions recommended should:
- Be rationally connected to one of the three grounds for detention in custody
- Relate to the specific circumstances of the accused and the offence
- Be realistic (the accused will be able to comply with the conditions)
- Be minimally intrusive and proportionate to any risk.
There must always be a connection between bail conditions proposed and the circumstances of the alleged offence and the accused (for example, "no alcohol" or "no drug" condition is not appropriate where it is not connected to the offence). Where a connection exists, consideration must be given to crafting the least restrictive bail conditions that still meet public safety concerns (for example, no drinking outside your residence as opposed to a complete ban on alcohol consumption or possession). It is important to limit the number of conditions that are imposed to those that are necessary and appropriate. Any condition recommended should be specific to the case and none should be automatic.
Conditions of release shall not be imposed to change an accused's behaviour or to punish an accused person. These conditions often relate to therapeutic or rehabilitative measures and are more appropriate following conviction. Conditions imposing a curfew or a condition "not to associate with unnamed persons having a criminal record" or a condition prohibiting attendance at a place may have the unintended consequence of preventing an accused seeing family, accessing support services or losing access to the area they normally lives. The Prosecutor should not request these conditions as a matter of routine.
The Criminal Code directs that the court shall include in the record of the proceedings a statement that the safety and security of every victim of the offence was considered. The Prosecutor must communicate any concerns about the safety or security of any victims to the court.
The Prosecutor must ensure that efforts are made to notify the victim of any release order, the conditions of release, including non-communication and any order detaining the accused. In all cases where there is reason to have concerns for a victim's safety, the Prosecutor must ensure efforts are made for bail notification to occur as soon as possible. On request, the victim must be provided with a copy of the court order.
Similar notification should be made to victims when there is a bail variation or bail review.
The terms of a bail order may be varied on the consent of the accused and Prosecutor. In determining her position on a request to vary any condition in a bail order, a Prosecutor should consider whether there has been a change in circumstances that warrants a variation to the condition subject to consideration of the same factors set out above.
The decision of a justice to release or detain an accused may be reviewed in the Superior Court of Justice if there is new evidence showing a significant change in circumstances, there has been an error in law or the decision is clearly inappropriate. The Prosecutor must obtain the prior approval of the Crown Attorney or designate to seek a bail review of a release order.
Ontario's Bail Directive is part of the overall Crown Prosecution Manual which is used to provide support and guidance to Crowns on the exercise of their discretion. The referenced directives within the bail directive will be available in the coming weeks.