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 […]


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 […]


Do Mandatory Minimums Work?

Back in 2009, Stephen Harper’s Conservative government introduced legislation amending the Criminal Code, which laid out mandatory sentencing minimums for various offences. Since then, these mandatory minimums have received some harsh criticism and the Supreme Court has even struck down a few. The sentencing judge is placed in a unique position where they know a great deal about the circumstances of the offence and the particular characteristics of the offender. The sentencing judge has often heard a trial of the matter, they have heard first hand sentencing submissions from the Crown and defence, and they have observed the offender in person while in the courtroom. This unique position can be pushed to the side when the sentencing judge is forced to abide by mandatory minimums, and sometimes the sentencing judge is forced to levy a sentence that is higher than what they would have otherwise imposed. Sentencing is often very […]