In TV legal dramas, we see this pattern where someone commits a crime, gets arrested, gets charged, and then gets released on bail while they await trial. Standard procedure, right? Well, in Canadian criminal law, the answer to that question should theoretically be "yes", but in reality, a more accurate response would be, "kind of, it depends". Now, what exactly does that mean?  This article will try to explain just that - how our broken law of bail has recently been bandaged by the Supreme Court in R v. Antic 2017 SCC 27 and how the Crown has adopted a new policy in regards to bail or "judicial interim release".

What is bail?

Simply put, “bail” or “judicial interim release” is the temporary release from custody before trial of someone accused of a crime. The Criminal Code and the Charter of Rights and Freedoms typically require that the accused be released from custody while awaiting trial, as one of the key principles behind the law of bail is that an accused is presumed innocent until proven guilty - this means that state intrusion should be as minimal as possible. Any further intrusion needs to be justified. While getting released on bail should be the “default” position in most cases, a judge or justice has the authority to deny the release of an accused or to impose conditions on the accused when he or she is released, as long as the Crown can justify the detention or the conditions.

What do you mean that “the law of bail is broken”?

A Brief History on the Law of Bail

Pre-1972, the law of bail was more or less a gamble. It was presumed that an accused person would be detained in custody (jail) until his or her trial, unless the accused applied for bail under s. 463(1) of the Criminal Code. But, once the accused applied for bail, s.463(3) of the Criminal Code offered virtually zero guidance for the bail judge on whether or not to accept or reject the bail application. So, the law of bail became highly discretionary – that is, the justice or judge had the complete power to determine whether or not you could be released from custody while awaiting your trial. Moreover, in those instances where the judge did grant you bail, bail judges had little guidance on how to and when to impose conditions for your release to ensure that you would appear at your next court date. Back then, there were three forms of release: (1) with sufficient sureties (persons who assume 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) upon entering into a recognizance (an obligation of record); (2) release upon making a cash deposit; and (3) release upon entering into a recognizance without a deposit. These three forms of release were unranked, which meant that it was up to the complete discretion of the judge to decide which of these conditions to impose. In other words, if you were an accused person pre-1972 and seeking bail, you would probably make every effort not to piss off the bail judge so that he or she would let you go.

Studies have shown that most judges who released accused persons from custody did so on cash bail. Cash bail severely limited the possibility of release for many accused persons ‒ those who could not afford to pay their bail were stuck in custody until their trial, whereas those who could afford their bail were released from custody; thus, effectively privatizing the criminal justice system. Who says money can’t buy freedom?

The 1972 Bail Reform Act

The 1972 Bail Reform Act says it can’t! This Act sought to address these concerns, as its main purpose was to avoid the harsh effects on accused persons of requiring cash deposits, where other avenues of release are available. Requiring cash in advance to be released before trial could (and did; and arguably, still does) operate “harshly against poor people”. The 1972 Bail Reform Act codified that cash bail be imposed on accused persons seeking bail “only as a last resort”. This same Act also codified the “ladder principle”, which essentially means “that release is favoured at the earliest opportunity and...on the least onerous grounds”. To put this another way, think of how you would physically use an actual ladder to reach something you’re not quite tall enough to get - you would only climb as high as you need to in order to reach your target. You probably would not need to climb to the very top of the ladder if what you need is within reach below the top rung, right? Well, the “ladder principle” is the same thing. The Bail Reform Act sets out possible forms of release which were ordered from least to most onerous. Because one of the points of bail is to ensure that the accused appear at his or her next court appearance, justices and judges ought not to impose a more onerous form of release than necessary, unless the Crown can prove why a less onerous form is inappropriate - as per the ladder principle. That said, not only is the ladder principle codified in the 1972 Bail Reform Act, it is also codified in s.515(1) to (3) of the Criminal Code. Codification of the ladder principle provided the much needed guidelines for justices and judges conducting bail hearings.

If the ladder principle is codified, then what’s the problem with the law of bail?

The problem with the law of bail is that bail courts across the country have struggled with how to apply the bail provisions in s.515(2) o the Criminal Code. As a whole, Canada’s bail courts have been applying the Criminal Code’s bail provisions inconsistently, which have resulted in deep-seated systemic issues ‒ that date back to the issues the 1972 Bail Reform Act sought to remedy ‒ to come to light. Moreover, with the advent of the Charter of Rights and Freedoms in 1982, everyone is guaranteed the right not to be denied reasonable bail without just cause and the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, through sections 11(e) and 11(d), respectively. In other words, it is our constitutional right to not be denied reasonable bail without just cause and it is our constitutional right to be presumed innocent until proven guilty. Inconsistently applying the bail provisions unnecessarily punishes those who are poor, marginalized, and vulnerable because they may not have the means to afford bail or provide a surety. Their “failure” to afford bail and “failure” to provide a surety costs them their pre-trial freedom and forces them to spend “dead time” in remand facilities (basically jail), even though they are presumed to be innocent. That’s the problem with the law of bail.

R v. Antic

Recently, the Supreme Court of Canada sought to bandage our broken law of bail in the 2017 decision of R v. Antic, which serves as a crucial reminder for bail courts across the country to adhere to the ladder principle, as codified in s.515(1) to (3) of the Criminal Code.

Facts and Procedural History

Kevin Antic was arrested for drug and firearm offences in Windsor, Ontario in the early summer of 2015. His first bail hearing was on June 30, 2015 and was denied bail because the bail justice believed Mr. Antic to be a flight-risk, even though his girlfriend had agreed to be his surety. Mr. Antic was sent back to custody.

Mr. Antic asked for his bail to be reviewed on July 17, 2015. He offered a pledge or a deposit of money as well as two additional sureties (his father and his grandmother) to satisfy the judge’s flight risk concerns. He was still denied bail. The bail review judge said that he would have released Mr. Antic if he could have imposed both a surety and a cash deposit as release conditions in order to satisfy the flight risk and safety concerns. However, s.515(2)(e) of the Criminal Code permits a cash-plus-surety release only if the accused is from out of the province or does not ordinarily reside within 200 km of the place in which he or she is in custody. As an Ontario resident living within 200 km of the place in which he was detained, Mr. Antic did not qualify for this.

Mr. Antic asked for his bail to be reviewed for a second time on August 28, 2015. By this time, Mr. Antic had already pleaded guilty to the drug trafficking charges and had been sentenced to a short term in jail (which he had already served in pre-trial custody), it had been established that the handgun found under his bed had been classified as a 40 calibre weapon, his co-accused had been released on bail, and there was a potential for delay in obtaining a date for a preliminary inquiry on the remaining charges he faced. However, despite all of this, the bail review judge still denied Mr. Antic bail, as he was still concerned that Mr. Antic would flee regardless of these changed circumstances.

Mr. Antic asked for his bail to be reviewed for a third time on October 23, 2015. This time, he challenged the constitutionality of s.515(2)(e) of the Criminal Code, and this is the issue that formed the basis of the case’s appeal to the Supreme Court of Canada. Mr. Antic argued that s.515(2)(e) of the Code violated an accused person’s right to reasonable bail under s.11(b) of the Charter. Mr. Antic argued that because he lived within 200 kilometres of the place he was being held, he did not qualify for a surety and cash deposit bail that the bail judge required for Mr. Antic’s release. This time, the bail review judge agreed. The bail review judge struck down the geographical requirement of s.515(2)(e) of the Code and granted Mr. Antic bail, as long as he had a surety and made a cash deposit of $100 000.

Unsurprisingly, Mr. Antic did not have $100 000 in cash at hand (who does?) and it took him almost one year to raise the funds for his bail. He was subsequently released on bail on July 15, 2016, after spending over a year in custody and under the presumption of innocence.

The Crown appealed the bail review judge’s decision to strike down the geographical limitation in s.515(2)(e) of the Code directly to the Supreme Court of Canada.

At the Supreme Court, Justice Wagner (as he then was), wrote for a unanimous court and reversed the bail judge’s decision to strike down the geographical limitation in s.515(2)(e) of the Code. However (and perhaps, more importantly), the Supreme Court found that the bail review judge erred by failing to adhere to the ladder principle by not considering other forms of release other than a cash deposit and surety.

Why is this case so important?

Mr. Antic’s case represents just one instance of a widespread problem within Canada’s bail courts. The consequences of not adhering to the ladder principle are severe - as seen with Mr. Antic, who served over a year in custody when he was presumed to be innocent. Moreover, in the Antic decision, Justice Wagner touched upon some provinces’ over-reliance on sureties, which often cause accused persons deserving of bail not to be released at all because they are unable to provide a someone who will assume responsibility for their compliance with their conditions of release by promising to pay a sum of money if they breach any of those conditions. Pre-1972, our problems with the law of bail were predominantly concerned with cost of bail; fast-forward 45 years later, and our current problems with the law of bail are not only the cost, but also the over-reliance on having someone in your life to quite literally bail you out of jail. Again, this dilemma brings to light deep-seated systemic issues - where our criminal justice system continues to punish and disproportionately affect presumed to be innocent individuals who are poor, who are marginalized, and who are vulnerable.

This case is so important because it reinforces the need for bail courts to start at the lowest rung of the ladder - that is, to start at a presumption of release without conditions in order to protect the accused’s constitutionally protected right to be presumed innocent until proven guilty. Imposing any further, more onerous conditions as set out in s.515(2)(a) to (e), need to be justified by the Crown.

New Crown Policy and the Future of the Law of Bail in Canada

On November 14, 2017, the Ontario provincial government’s Bail Directive came into force. This recent Crown Policy change was aimed to make the the bail process fairer and more efficient by specifically instructing Crown attorneys to consider the least restrictive bail conditions that meet any concerns about releasing the accused and to only seek a surety if every lesser form of release has been considered (i.e. stick to the ladder principle). Moreover, the new Crown policy explicitly states that Crown prosecutors must consider the circumstances of the accused (i.e. age, presence/absence of a criminal record, whether or not they are racialized, homeless, poor, or suffering from mental illness or addiction) and in light of the Truth and Reconciliation Council’s Calls to Action, they must also consider the circumstances of Indigenous peoples, including the remoteness of their community and how that can impact them.

The Crown’s consideration of these factors, coupled with the not-so-gentle reminder from the Supreme Court to adhere to the ladder principle, will hopefully accomplish what the 1972 Bail Reform Act could not: that is, avoid the harsh effects on accused persons who are poor, marginalized, and vulnerable and protect their constitutionally protected right of the presumption of innocence. The criminal justice system ought not to be privatized, nor should it punish individuals because of their circumstances or the cards they were dealt. The law of bail in Canada has been broken for years and has deep seated systemic issues that need to be fixed. R v. Antic and the new Crown Policy are two monumental (and extremely necessary) steps to reforming and (r)evolutionizing Canada’s bail law, so hopefully, one day, we won’t have to “pay for our freedom”.