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 […]


What is a surety?

When a person is charged with a criminal offense, a Judge or Justice of the Peace must decide whether to release the accused person on bail, or to keep them in custody until their charges have concluded. One of the available options for release is for the accused to be released into the community under the supervision of one or more sureties. A surety is a person who takes responsibility for making sure the accused attends required court appearances and obeys the release conditions placed on them by the Court. A surety will post a sum of money, or an interest in property, which they risk forfeiting if they do not notify the police of any breaches by the accused. This added level of supervision can often give the Court the confidence they need to release an accused who might otherwise not be suitable for bail. A person must be […]


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 […]