Maple Crown Law Group

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:

1. Primary Grounds: The accused’s detention is necessary to ensure that they show up for trial.
2. 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.
3. 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 that under two unique circumstances the burden shifts to the accused person, who must prove why their pre-trial detention isn’t necessary in light of the aforementioned grounds.

The first example of a shifting burden is when the accused person is charged with an offence listed under section 469 of the Code. This includes some of the most serious offences like murder and treason. It also includes some seldom-charged offences like alarming Her Majesty, inciting to mutiny, seditious offences, and “piracy by law of nations” (or being a pirate). If an accused person is charged with any of the offences listed under section 469 then it is up to them to prove why their pre-trial detention isn’t necessary.

The second example of a shifting burden is for offences listed under section 515(6) of the Code. These include:

1. Offences committed while at large on bail for other indictable matters
2. Offences in relation to organized crime
3. Offences related to terrorism
4. Certain offences under the Security of Information Act
5. Offences related to weapons trafficking or weapons importing
6. Certain offences that were committed with a firearm
7. Offences involving firearms, prohibited weapons, or similar items, while under a weapons prohibition
8. Offences committed while not an ordinary resident of Canada
9. Breaches of conditions under section 145(2) to 145(5) while at large on bail
10. Offences under the Controlled Drugs and Substances Act where the maximum sentence is life imprisonment

Once again, if an accused person is charged with an offence listed under section 515(6), then it is up to them to prove why their pre-trial detention isn’t necessary.