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 enough then the climbing should stop. It stops because the accused is entitled to the presumption of innocence and the right to reasonable bail.

“The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system,” Justice Richard Wagner wrote in the Supreme Court’s unanimous decision. “It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons.”

Onerous bail conditions, and an overreliance on cash bail, place the poor and homeless at a severe disadvantage. These groups often struggle to follow strict conditions (like a curfew) and they often cannot post cash. Unfortunately, it is these underprivileged portions of the population that most often find themselves facing charges.

A denial of bail can also have adverse effects on an accused’s employment, result in a loss of residence, interfere with their ability to properly prepare a defence and meet with their lawyer, and have a harmful impact on relationships with friends and family.

Thankfully, all of the above considerations were at the forefront of the Antic decision and the presumption of innocence and the right to reasonable bail shone through.