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Bail decisions and the value of providing reasons

A recent Supreme Court of Canada (SCC) ruling calls on judges and justices of the peace to provide explanations about how they reached a decision in a bail hearing, says Oshawa criminal lawyer Lawrence Forstner

Too many bail decisions are being rendered without offering any explanation or reasoning as to how the bench reached that decision, he says.

“A problem with the bail system is it is so opaque," Forstner, principal of Forstner Law, tells AdvocateDaily.com. 

“This ruling binds the courts to present a rationale in all of its decisions, including bail.”

The Supreme Court, in its unanimous ruling, found that bail was being applied inconsistently and while "a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories.”

It also determined that "a central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release," found in s. 515(1) to (3) of the Criminal Code. 

The case involved a man who was charged with several drug and firearms offences. He was denied release at his bail hearing and sought a review of the detention order.

The decision explains how the “ladder principle,” identified in s. 515(3) of the Code, "requires a justice or a judge to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case."

The SCC found the bail review judge "failed to adhere to this central principle. He erred by requiring a cash deposit with a surety, one of the most onerous forms of release, even though (the accused) had offered a surety with a monetary pledge," said the ruling.

Forstner says the decision is in part a clarification that offers a template for how bail is to be applied in Canada, but it also should be "intelligible, based on all the reasons set out by the Supreme Court in a 2002 decision.”

He says the 2002 "ruling is a case that can tell us what should be happening in a bail hearing, that each part must be explained, each jump up the ladder justified." 

However, bail is not being applied evenly across jurisdictions and often without any clear explanation for a justice's decision, Forstner says. In some areas, there is an unreasonable reliance on sureties based on a sense of fear among Crowns and justices of the peace that a defendant would commit a crime if released, he adds.

"The duty to give reasons isn't always followed," he says. "If a judge makes a decision and you're left saying, 'What? I don't understand it,' then the duty was not fulfilled.

"Let's see the analysis. That's my point. Bail is arguably one of the most important stages and yet it's left to justices of the peace in busy bail courts and they are often not given the resources."  

Supreme Court Justice Ian Binnie wrote in the 2002 case that on "a more specific level, within the confines of a particular case, it is widely recognized that having to give reasons itself concentrates the judicial mind on the difficulties that are presented. The absence of reasons, however, does not necessarily indicate an absence of such concentration.

"We are speaking here of the articulation of the reasons rather than of the reasoning process itself. The challenge for appellate courts is to ensure that the latter has occurred despite the absence, or inadequacy, of the former."

Forstner says Binnie's decision applies in bail hearings and in all rulings of the court.

Justices are required to provide reasons in the bail ladder system as to why a particular rung is not suitable for a defendant before moving up to more onerous release conditions, he explains.

Forstner says both the 2017 and 2002 rulings emphasize the need for courts to provide more explanation for the decisions being made.

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