3.18 Judicial Interim Release

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

January 3, 2020

Table of Contents

1. Introduction

A person in Canada charged with a criminal offence and arrested can either be released into the community to await trial or be detained in custody pending trial. The decision whether to consent to release or to oppose it and seek detention of the accused is one of the most important and challenging decisions made by Crown counsel. This decision, made early in the criminal process, requires a balancing of interests that may conflict. Those include the accused's liberty interest, the protection of the community including victimsFootnote 1 or witnesses, society's interest in ensuring that accused persons attend court, and the reputation of the administration of justice and public perception of the criminal justice process.Footnote 2

The right not to be denied reasonable bail without just cause is a right enshrined in section 11(e) of the Canadian Charter of Rights and Freedoms ("Charter"). All forms of pre-trial release are protected by section 11(e).Footnote 3 The grant or denial of bail also implicates the accused's liberty and security of the person interests protected by section 7 of the Charter, as well as the presumption of innocence in section 11(d).Footnote 4

The other interests to be considered by the Crown (and, ultimately, the court) in making this important decision are reflected in the grounds for detention set out in section 515(10) of the Criminal Code, and include the "protection or safety of the public, including any victim or witness": section 515(10)(b). In addition, the Crown (and the court) must be concerned with the need to "maintain confidence in the administration of justice."Footnote 5

2. General Principles Governing the Exercise of Discretion

Part XVI of the Criminal Code sets out for all persons charged in Canada with a criminal offence the regime for judicial interim release, including release by both police and the courts. In 2019, the Code was amended to codify the principles animating decision-making by peace officers, justices or judges under that Part as expounded in case law such as R v Antic:Footnote 6

Principle of restraint
493.1  In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

This principle must be borne in mind by Crown counsel in the exercise of their discretion with regard to bail.

In Morales, the Supreme Court of Canada described section 515, a key provision in Part XVI, as "'a liberal and enlightened system of pre-trial release' under which an accused must normally be granted bail."Footnote 7 A unanimous Supreme Court of Canada noted in St-Cloud: "it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception."Footnote 8 There is no class of offence for which bail cannot be granted.Footnote 9 It is always a consideration.

In exercising their discretion, Crown counsel must consider the appropriateness of all available alternatives to pre-trial incarceration. Crown counsel must seek the least restrictive restrictions on the presumptive liberty of the accused only if such restrictions are reasonably anticipated to be required to address the primary, secondary and tertiary grounds.Footnote 10 This, in turn, requires consideration of all potential bail scenarios that could reasonably address the public interests reflected in the primary, secondary and tertiary grounds.

The Crown's decision whether to seek detention or consent to a person's release plays a key role in the functioning of the bail system, as illustrated in the following:

Crown counsel are expected to exercise discretion to consent to bail in appropriate cases and to oppose release where justified. That discretion must be informed, fairly exercised, and respectful of prevailing jurisprudential authorities. Opposing bail in every case, or without exception where a particular crime is charged, or because of a victim's wishes without regard to the individual liberty concerns of the arrestee, derogates from the prosecutor's role as a minister of justice and as a guardian of the civil rights of all persons.

Because the police and the prosecution have significant discretion to exercise respecting the release of accused persons, the administration of criminal justice logically expects that these parties will not simply dump all bail decisions into contested hearings before the courts. Not only does this serve to choke the operation of the bail courts but, as said, the statutory and constitutional regime demands otherwise.Footnote 11

Section 515(10) of the Criminal Code sets out the grounds on which bail can be denied. They are referred to as the primary (515(10)(a)), secondary (515(10)(b)), and tertiary (515(10)(c)) grounds.Footnote 12 Crown counsel should consider each of those grounds in arriving at their decision regarding a position to advance on release or detention.

The Supreme Court of Canada's decision in St-Cloud makes clear that all three sets of grounds are equally capable of justifying a detention order. It can no longer be said that the tertiary ground is a residual ground for use only where the primary and secondary grounds are not made out. "It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused."

Footnote 13

The decision to seek detention or consent to release should be made in a principled way, according to criteria relevant to the grounds set out in section 515. The criteria identified in paragraph 3.3 of chapter 2.3 of the PPSC Deskbook, "The Decision to Prosecute", as being irrelevant to the decision to prosecute are likewise irrelevant to the decision regarding bail. In addition, Crown counsel should not treat as a factor relevant to the exercise of their discretion that detention may increase the likelihood that an accused will plead guilty, plead guilty sooner, or make it likely that the accused will expedite the judicial process.

Paragraphs (b) to (e) of section 515(2) set out the increasingly restrictive types of release available where the police have chosen not to release an accused under sections 497 to 499. Sections 515(2)(a) to (e), when read in combination with section 515(2.01), are described as enshrining the ladder principle.Footnote 14 By virtue of section 515(2.01), a justice shall not make an order for a more onerous form of release than the Crown has demonstrated is necessary. A unanimous Supreme Court of Canada has described the ladder principle in Antic, noting that "[e]ach provision, moving from section 515(2)(a) [now 515(2)(b), post C-75 amendments effective December 18, 2019] to section 515(2)(e), involves more burdensome conditions of release for the accused than the one before it."Footnote 15

Although the law is not settled on this point, the preferred view is that the ladder principle applies even in reverse onus situations.Footnote 16 In practice, this means that when the accused faced with a reverse onus situation attempts to demonstrate why he or she should be released, they are entitled to start by advocating for the least burdensome form of release.Footnote 17

Another change brought about by Bill C-75 is the requirement, found in section 515(2.02), that the justice shall favour a promise to pay over the deposit of money where the accused or surety has reasonably recoverable assets. As the Supreme Court stated in Antic, "Parliament included cash in the most onerous "rungs" of the ladder for added flexibility, not because cash is more effective than other release conditions in ensuring compliance with bail terms … . Release with a pledge of money thus has the same coercive power as release with a cash deposit."Footnote 18 Cash bail is intended to add flexibility when a recognizance is inadequate and a surety is not available. The vast majority of bails are recognizances without cash or surety, but there are occasions—either by agreement or order of the court—when a higher level of bail is necessary in order to ensure the attendance of the accused or to prevent further offences. Cash can be ordered only if the accused is regularly resident more than 200 km from the location of the arrest or on Crown consent.

There is always a concern, particularly on lower level cases, that an accused will not have access to cash, even if the amount is set based on the asserted means of the accused, and that the impact of imposing a cash bail will be to deny bail because of poverty—in other words, without just cause. To address this very real possibility, for small cash bails the order should allow for either a deposit of cash or a recognizance. In other words, the bail should be flexible enough to maximize the likelihood that it can be met rather than resulting in a default detention. If $500 cash would be a sufficient amount, then the bail order should allow for either a deposit of $500 cash or a $500 recognizance.

The Crown should not oppose bail merely for the purpose of permitting the police or an investigative agency to complete their investigation. Where, however, the police are continuing with the investigation following the arrest, it is legitimate to consider whether the accused, if at large, may interfere with the investigation, by destroying evidence, tampering with witnesses or otherwise interfering with the administration of justice. Such concerns may be relevant to the secondary ground for detention as described in section 515(10)(b) of the Code.

Crown counsel should consider each of the criteria of section 515(10)(c) in determining whether to rely on the tertiary ground to seek detention, and should speak to each when making submissions for detention, so that the trier of the issue can comply with section 515(5).Footnote 19 In Dang, a post-St-Cloud case, Trotter J, conducting a bail review of a detention order based on both secondary and tertiary grounds, noted in dealing with the tertiary ground, that "[a]n accused person's plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released."Footnote 20

2.1 The Exercise of Crown Discretion and Indigenous Accused

Under the heading "Principles and Considerations", an additional statement of principle, particular to Aboriginal accused or vulnerable populations, follows section 493.1:

Aboriginal accused or vulnerable populations
493.‍2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
a) Aboriginal accused; and
b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

In Gladue, the Supreme Court of Canada recognized the denial of bail for Indigenous persons as an "unfortunate institutional approach that is more inclined to refuse bail." Footnote 21 In Summers, that Court noted that "Aboriginal people are more likely to be denied bail, and make up a dispropor-tionate share of the population in remand custody." Footnote 22 The Court further stated in Myers, that "In-digenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions."Footnote 23

Crown counsel's decision whether to oppose or consent to release should take into account an accused's background and risk factors. They should pay particular attention to the circumstances of Indigenous accused which are unique and be mindful of the Gladue factors relevant to bail when deciding whether to seek detention or consent to release. They should be prepared to engage in a dialogue with the justice about the impact of Gladue factors at the hearing.Footnote 24 In Gladue, in the sentencing context, the Court stated:

[T]he judge who is called upon to sentence an aboriginal accused must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.Footnote 25

Transposing this approach to the bail context requires Crown counsel to ask whether unique background and systemic factors in the background of the accused may have played a part in creating circumstances that have given rise to concerns based on the primary, secondary or tertiary grounds. For example, a history of breaching court orders, such as a failure to comply with reporting conditions, that could justify the Crown seeking detention or particular bail conditions, should be examined in greater detail to determine, if the root cause of the breach was systemic and can be addressed through consent to release on appropriate conditions. Further, seemingly neutral factors that might influence the decision to seek detention in other circumstances, such as unemployment, lack of stability in housing, or sureties without significant means, may simply be reflective of social conditions in a given community. Crown counsel are encouraged to engage in discussions with the defence to canvass available alternatives to address the underlying concerns such circumstances may ordinarily raise in relation to the primary, secondary or tertiary grounds.

Where available to Crown counsel, information regarding the participation of the Indigenous accused in the community of which they are members, should be taken into account by Crown counsel in exercising their discretion regarding bail. Crown counsel should have regard for and seek to encourage such participation. Where such participation is meaningful, it has an overall impact on the attendance in court of the accused, their respect for the judicial process, the safeguarding of public safety and confidence in the administration of justice. Recognizing the community's role in addressing these concerns also promotes a non-colonial collaborative response to shared criminal justice concerns. For example, community or elder participation in place of surety release may permit tailored bail conditions that still appropriately address the primary and secondary grounds but avoid the longer term harms caused by removal from community and family network's in the case of Indigenous accused who live in remote areas.

In respect of the tertiary ground, in addition to consideration of the particular personal circumstances of the accused as a member of an Indigenous community, issues relating to the particular victimisation of vulnerable members of that community and the impact on that community and society at large of a crime committed against those persons should be considered.Footnote 26

3. The Bail Hearing

The nature of, and approach to, the bail hearing was aptly described by Hill J in Villota:

Although a show cause hearing is not a trial, it is nevertheless an adversarial proceeding. As noted by this court, however, the orderly conduct of bail hearings is best achieved with goodwill and cooperation of counsel: Regina v John, [2001] OJ No 3396 (QL) (SCJ), at paras 32, 54 [summarized 51 WCB (2d) 24]. Similar observations appear elsewhere: Report of the Attorney Generals Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the Martin Committee Report, 1993) at 44-45; Report of the Criminal Justice Review Committee, supra, at 5, 102-104. Formalism and inflexibility are undesirable. Professor Trotter, in The Law of Bail in Canada, supra, at 198, quite rightly comments that there is a need in bail hearings to resolve the tension between fairness and efficiency. As noted at p 45 of the Martin Committee Report, because there are co-operative dependencies in the administration of criminal proceedings, each of the participants independently possesses the power to nullify the system's continued viability. Within reasonable bounds, bail hearing procedure should be sufficiently flexible to promote both a fair and an expeditious proceeding.Footnote 27

Section 518(1)(e) of the Criminal Code provides that the judicial officer hearing a bail matter may receive and base the decision on evidence considered "credible or trustworthy." Notwithstanding the apparent breadth of that description, counsel should not lead evidence on a show cause hearing that the Crown knows to be unavailable or unreliable.

Crown counsel should ensure that the important decisions about bail are made on the basis of sufficient credible and trustworthy information about the accused and about the offence. It is not uncommon for the arrest of an individual to take place before the investigation is complete. If additional information is required to inform the Crown's decision-making or to present at the hearing, Crown counsel may request an adjournment of bail proceedings. Under section 516(1), adjournments of proceedings may be granted for up to three clear days, unless the accused consents to a longer adjournment. Crown counsel should not request bail hearing adjournments for administrative convenience or to pursue evidence unnecessary to the bail hearing.

The Crown's position on bail must be made independently by the prosecutor. Crown counsel are nonetheless expected to consult, if possible, with the relevant police force or investigative agency regarding the release or detention of the accused, particularly regarding safety concerns for victims and witnesses. In such cases, Crown counsel should consider consulting with the victim or witness prior to conducting the bail hearing.

4. Conditions of Release

Sections 515(4) to (4.2) set out the types of conditions that a justice may (and in some cases must) impose on release. The conditions sought by the Crown, if any, "should be the least restrictive conditions that are consistent with securing public safety, attendance at court, and respect for the administration of justice, as reflected in section 515(10)." Footnote 28 Crown counsel "should be diligent to ensure that conditions of bail applied to accused persons" judicial interim release orders are reasonable, necessary and directly related to:

Sections 515(4.2) and (4.3) provide for specific orders for the protection of any person including victims, witnesses or justice system participants in relation to certain offences identified in those sections. See also the PPSC Deskbook for more detailed guidance: paragraph 3.2 "Judicial Interim Release" in chapter 5.5 "Domestic Violence", and paragraph 4.4 "Bail Hearings" in chapter 5.6 "Victims of Crime."

Crown counsel must not seek to impose conditions for the purpose of punishing the accused or for the purpose of reforming the accused. Doing either is not in keeping with the presumption of innocence. Conditions should, as indicated above, be carefully crafted to directly address the test for release on bail. Crown counsel should exercise restraint in seeking conditions which may be impossible for the accused to meet, unless necessary for the accused's release into the community according to the test for bail. The Canadian Civil Liberties Association noted the wide-ranging consequences that flow from unnecessarily restrictive conditions: "Bail courts must be more attuned to the ways in which bail conditions in particular, no-contact orders, curfews and movement restrictions or zone exclusion orders can fundamentally and unjustifiably impair a wide range of constitutional rights." Footnote 31

5. Surety Release

"The presence of a prospective surety in court is not a jurisdictional or essential prerequisite to the conduct of a judicial release hearing."Footnote 32 Crown counsel should require the use of a surety to enable release of the accused only where it is necessary. Many accused will not be able to find a surety.Footnote 33 Even those who can do so often have difficulty doing so while in custody, prolonging their incarceration.

Surety release should not be the default or starting position for release. In keeping with the ladder principle, the less onerous forms of release referred to in section 515(2) should be considered and rejected before seeking surety release.Footnote 34

Crown counsel have an important role to play in assisting the court with determining whether a proposed surety is satisfactory. Crown counsel should take appropriate steps to satisfy themselves that the proposed surety is suitable and understands their role.Footnote 35 There are several options available to Crown counsel to assist in determining the suitability of proposed sureties. Crown counsel may make inquiries of the investigative agency, or examine witnesses called at the bail hearing. While it is not the Crown's role to provide legal advice to the proposed surety, it would not be inappropriate to point the proposed surety to government-supplied information on the role of a surety.Footnote 36

Although the practice is common in some jurisdictions, strictly speaking, sureties are not required to testify at bail hearings. Crown counsel, through the respectful, though at times vigorous, questioning of the surety, is to assist the Court in determining whether the proposed surety can appropriately address the particular ground that is a potential impediment to the release of the accused person without a surety. Crown counsel should avoid any preconceived stereotypical assumptions about the nature of the relationship that is required to ensure adequate supervision by the surety. Crown counsel should not routinely insist that sureties be present in court during the bail hearing, and should not routinely adjourn bail hearings so that sureties can be present.Footnote 37 For many sureties, the process is disruptive, often requiring that they miss work to attend court, for example. Crowns should consider whether there is an alternative to testimony from the surety to assist the court in determining whether the use of a surety, and a particular person as a surety, is appropriate.

However, certain fact situations might properly require surety testimony, such as where the accused proposes to live with the surety.

6. Crown Obligations to Victims and Witnesses

Victims and witnesses may have a significant interest in whether an accused person is released from custody. Crown counsel should be aware of the interest of victims and witnesses in the release of the accused on bail, particularly in situations where the conduct reflected in the charges may imply a potential threat to the victim or witness. This may be of particular consideration in small and/or remote communities where bail conditions may need to be more explicit about the manner in which potentially threatening interactions are prevented due to the reality of the limited number of public amenities and readily available alternate housing arrangements. Section 515(4)(d) provides for a non-contact order as a condition of release. Section 515(12) provides that even where an accused has been detained, the justice may order that the accused abstain from communication with a victim or witness or any other person named in the order. Section 515(13) requires the justice to specifically state that he or she has "considered the safety and security of every victim of the offence."

Crown counsel must communicate information related to the bail proceedings to victims and witnesses and ensure that they are informed about the custodial status of the accused following the bail hearing. Section 515(14) requires the justice to provide a copy of the order to any victim of the offence upon request by the victim. See Deskbook chapter 5.6 "Victims of Crime", paragraph 4.3 "Bail hearings."Footnote 38

7. Bail Forfeiture

Part XXV of the Criminal Code, "Effect and Enforcement of Recognizances", provides the legal and procedural framework for the enforcement of recognizances, including forfeiture of a recognizance: section 771.

In exercising discretion on whether to pursue forfeiture proceedings, Crown counsel should consider the following factors:

Appendix A - SCC decision in Zora: Impact on the bail process

Memorandum / Note de service

TO / DEST: All PPSC Counsel // Tous les procureurs du SPPC
FROM / ORIG: George Dolhai, David Antonyshyn, Deputy Directors of Public Prosecutions // Directeur adjoint des poursuites pénales
SUBJECT / OBJET: SCC decision in Zora : Impact on the bail process // Décision de la CSC dans Zora : Impact sur le processus de mise en liberté sous caution

July 9, 2020 / Le 9 juillet 2020

In R. v. Zora, 2020 SCC 14, released on June 18, 2020 (9-0), the Supreme Court of Canada unanimously determined that breach of bail contrary to s. 145(3) of the Criminal Code requires proof of a subjective mens rea (as opposed to an objective one), articulated the test for establishing "recklessness" for such prosecutions, and provided a number of directions concerning bail processes in general.

Facts and judicial history

The trial judge employed a modified objective fault standard to convict Mr. Zora for failing to answer the door when police attended his residence to conduct a curfew compliance check. As decided in R. v. Ludlow, 1999 BCCA 365, proof of an objective mens rea sufficed in B.C. to convict under s. 145(3). In that case, the British Columbia Court of Appeal declined to follow the Ontario Court of Appeal's decision in R. v. Legere (1995), 22 O.R. (3d) 89, which required a subjective mens rea to sustain a conviction under s. 145(3).

A majority of the court below (4-1) affirmed the objective fault standard as a matter of statutory interpretation; the minority judge held that the presumption of subjective mens rea prevailed, but concurred in the result finding that Mr. Zora was reckless since he knew that there were parts of his house where he would not hear the doorbell and yet he made no effort to address the situation.

The Supreme Court of Canada concluded that a subjective fault is required for a conviction under s. 145(3), allowed the appeal, quashed Mr. Zora's convictions, and ordered a new trial on the two counts of failing to attend at his door.

Purpose of this memorandum

While the narrow issue on appeal to the Supreme Court focused on whether s. 145(3) requires a subjective or objective mens rea, Martin J., writing for the Court, adopted a broad analysis of the bail system in order "to build upon the Antic [2017 SCC 27] framework and provide guidance on non-monetary conditions of bail" [para. 81]. As a result, Zora provides guidance on three areas with direct implications for prosecutors: (1) the imposition of conditions; (2) the decision to charge a breach versus seeking a warrant under s. 512.2 and revocation under s. 524 for noncompliance; (3) the elements of proof of the offence.

This memorandum highlights the principles found in Zora that impact the bail process with reference to PPSC's Deskbook Chapters 3.18 (Judicial Interim Release) and 3.19 (Bail Conditions to Address Opioid Overdose), which already address many of those principles, such as restraint, non-discrimination, presumptive release, specific linkage to s. 515(10) risks, ladder principle, and sensitivity to Indigenous accused and vulnerable or disadvantaged groups.

Implications of the Court's analysis for prosecutors

1. Establishing terms of release

GUIDANCE:

2. Deciding whether to lay a charge (s. 145(3)) or seek revocation (s. 524)

GUIDANCE:

3. Proof of mens rea for a s. 145(3) offence

GUIDANCE:

The same subjective mens rea governs the offences of failure to attend court when required pursuant to ss. 145(2), (4), and (5) or of failure to comply with conditions of undertakings issued by peace officers contrary to s. 145(5.1) of the Criminal Code, because those provisions are similarly worded to s. 145(3) [para. 16].

An issue likely to arise going forward is whether a subjective mens rea as described in Zora also governs the offences of breach of probation contrary to s. 733.1 of the Criminal Code. In Zora, Martin J. refers to the reasoning in R. v. Docherty, [1989] 2 SCR 941 where the Court determined that a subjective mens rea applied to s. 733.1. The wording of that provision, at the time Docherty was released, used the words “wilfully” and “refuses”, which reinforced the presumption of subjective fault. Martin J. notes that even after Parliament removed the word “wilfully” from s. 733.1, most courts continue to interpret it as requiring a subjective mens rea based on the reasoning in Docherty and on the fact that the removal of the word “wilfully” is not, on its own, indicative of an intent to create an objective mens rea offence. Although Martin J. does not expressly state that the Zora subjective mens rea applies to s. 733.1, her analysis points in that direction [paras. 50-51].

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