Criminal Law

Onus on accused in murder cases to show cause for bail

By Staff

The bail decision in the case of an Ontario neurosurgeon accused of killing his wife points to some of the misconceptions around bail in murder cases in Canada, says Toronto criminal lawyer John Rosen.

“The Criminal Code requires someone who is charged with murder to be automatically detained in custody. The onus then shifts to the accused to apply to a judge of the Superior Court of Justice for bail and to demonstrate that the detention of the accused is not justified,” he tells

A judge denied the surgeon bail in a Toronto courtroom; the reasons for his decision are covered under a publication ban, reports the CBC.

Rosen, founder of Rosen & Company Barristers, says murder is one of the only charges — others include treason, alarming the Queen, intimidating Parliament or a legislature, inciting to mutiny, and piracy — in the Criminal Code where the accused must apply for bail and show cause for their release.

For all other offences, bail hearings are held in the lower court, usually presided over by a Justice of the Peace, and with some exceptions (such as in drug cases) the Crown has to show cause why the person should be detained.

Rosen explains that in bail applications on murder charges the Superior Court takes into account the several factors considered on all bail hearings, including whether the accused is a flight risk, whether they will commit other offences if released or interfere with the administration of justice, and whether the public’s confidence in the court would diminish if the accused was released.

In murder cases, the court will weigh the background of the accused, the proposed bail plan and the strength of the sureties against the strength of the Crown’s case, he explains. “The benchmark is very high when the probability of conviction and the automatic life sentence that would follow is great.”

A conviction for murder carries with it a mandatory life sentence and delayed parole of at least 10 years for second-degree murder and 25 years for first-degree murder. Courts recognize the accused’s incentive to run when the penalty is so high, Rosen explains.

“The accused in any murder case must get over these hurdles on a balance of probabilities by calling evidence to show they are a person of previous good character, have a strong bail plan with reliable supervisors to ensure compliance and attendance in court as required. Even then, if the case against the accused is strong, a judge is more likely to deny bail," he says.

Persons charged with murder will ask about bail and their lawyer will generally explain the difficulties associated with obtaining release from the court, Rosen says.

“I always say to the client, ‘What’s your bail plan?’ The court will want a high bail, a number of sureties who are prepared to put their assets on the line, and will want to know where you’re going to live, work and who you will be associating with,” he says. "The court will want the accused, if released, to be guarded, essentially, by people close to them in the community."

Rosen goes on the note, “It’s not as if no one has ever been released on bail on a murder charge, but generally speaking, people don’t get out,” he says. “Even though the onus on accused is to show cause on a balance of probabilities, it turns out to be a high threshold to meet — not impossible but it’s high.”

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