Archive for November 21st, 2017

Bail and the Burden of Proof

Section 11(e) of the Canadian Charter states that, “any person charged with an offence has the right … not to be denied reasonable bail without just cause.” That means that the burden of proof is presumed to be on the Crown, who must prove that pre-trial detention is necessary for an accused person to be denied bail. The Crown can prove pre-trial detention is necessary by relying on one or more of the following 3 grounds: Primary Grounds: The accused’s detention is necessary to ensure that they show up for trial. Secondary Grounds: The accused’s detention is necessary to protect the public because there is a substantial likelihood that the accused will commit a criminal offence or interfere with the administration of justice if released. Tertiary Ground: The accused’s detention is necessary in order for the public to maintain confidence in the administration of justice. However, the Criminal Code dictates […]

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The Supreme Court Comments on Bail

Enshrined in the Canadian Charter of Rights and Freedoms is the presumption of innocence and the right not to be denied reasonable bail without just cause. In a recent decision on bail called R. v. Antic, the Supreme Court commented on the importance of these aforementioned rights. In Antic, the Supreme Court voiced their displeasure with lower courts sidestepping the ladder approach to bail, which is codified in section 515(3) of the Criminal Code. The ladder approach begins with the default position that an accused should be released on an undertaking without conditions, and only when the Crown can show justifiable reasons does an accused move up the ladder. It moves up first with release on conditions without cash deposit, then with release on conditions with a surety, and finally, with release on conditions with cash deposit. Each rung must be deliberately weighed, and if any one rung feels like […]

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The Intersection Between Mental Health and the Law

Assistant Chief Judge of the Provincial Court of Alberta Larry Anderson recently announced the creation of a specialized mental health court to better consider the needs of the large number of people who struggle with mental health issues and the law. For long time criminal defence practitioners, this cannot come soon enough. In speaking with CBC, Judge Anderson estimated that of the 150 new files which appear before the Provincial Court every day, 10-25% of the accused have mental health needs. In our opinion, this is an understatement. The frequency with which the criminal justice system and individuals with mental health needs interact is likely far greater. In this post, we explore some of the ways in which the lawyers at Royal and Company have seen those with mental health concerns come in contact with the criminal law. The most obvious way that this happens is when an individual suffering […]

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