Accounting for Law

Ruling may result in more uniform approach to bail

A recent Supreme Court of Canada (SCC) decision that weighs in on the subject of judicial interim release pending trial has the potential to achieve significant changes to the criminal justice system, Hamilton criminal lawyer Jeffrey Manishen writes in The Lawyer’s Daily.

The central issue in the case was the constitutional validity of s. 512(2)(e) of the Criminal Code, permitting a justice to impose a combination of a surety plus a cash deposit for the release of someone who does not ordinarily reside within 200 km of the place where he or she is in custody, explains Manishen, partner with Ross & McBride LLP.

“The court concluded that while it was constitutional, the accused should have been released without the need for a cash deposit which, for him, wasn’t applicable due to his place of residence,” he says.

“Having dealt with that issue, the court then chose to make several strong statements clearly intended to change the mindset of those responsible for decisions on judicial interim release with the view to establishing a more uniform approach on a national level,” writes Manishen.

In emphasizing the importance of the presumption of innocence, Manishen says the court noted that the accused should “neither find it necessary to plead guilty to secure his or her release but should also not have to suffer needlessly on being released.

“The ‘ladder principle,’ requiring the justice not to order a more onerous form of release unless the Crown showed why a less onerous form was not appropriate, ‘must be adhered to strictly,’ the court noted,” writes Manishen.

The court also emphasized that it would be “an error in law” for a justice to fail to justify the rejection of a lesser rung on the ladder before moving to a more restrictive form of release, he adds.

The court, he writes, also directed that sureties only be used when other, less onerous forms are rejected as inappropriate. The SCC also reminded presiding justices that they retain the discretion to reject a joint proposal for release terms as presented by the Crown and defence when such proposals don’t fit the statutory criteria for detention.

“The court also commented on the issue of the terms that may be imposed as part of judicial release orders, pointing out that s. 515(4) of the code only permits them ‘to the extent that they are necessary’ to address concerns about release as opposed to detention. The court directed, ‘they must not be imposed to change a person’s behaviour or to punish an accused person,’” writes Manishen.

He adds that several aspects of the decision also meet the recommendations by former Chief Justice of the Provincial Court of Manitoba Raymond E. Wyant in his 2016 report, “Bail and Remand in Ontario,” commissioned by the attorney general of Ontario.

“Justice Wyant notes that high rate of incarceration for people waiting for their trials and provides a wide range of recommendations for the province to consider in remedying a long-standing problem for persons charged with criminal offences,” he writes.

Ultimately, Manishen says this SCC decision is already having an impact in Ontario and it is hoped that the attorney general will provide direction for Crowns to implement it fully in the near future — although this does not mean that detention won’t be ordered in the appropriate case.

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