Bail
Fundamental principles
R v Hall, 2002 scc 64
“Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.”
R v St Cloud, 2015 SCC 27
“In Canadian law, the release of accused persons is the cardinal rule and detention, the exception.”
R v Antic, 2017 SCC 27
It is an error of law for a justice to fail to apply the ladder principle of bail. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.
R v Myers, 2019 SCC 18
Leading case on the test for 90-day detention reviews. Where the accused has already served what would be a fit sentence for the offence, they should be released on bail – in appropriate cases, even where they could be detained on the primary or secondary grounds.
R v Zora, 2020 SCC 14
The ladder principle applies to individual conditions of a bail as well as the global question of release.
Bail reviews
R v St Cloud, 2015 SCC 27
Leading case on the test for bail reviews. A reviewing justice may intervene where (a) there has been a material change in circumstances, (b) the bail justice erred in law, or (c) the decision under review was clearly inappropriate.
R v Codina, 2017 ONCA 93
Reaching a time served position is a “serious liberty issue” and constitutes a material change of circumstances that can justify release.
R v Nguyen, 2018 ONSC 4470
A second bail review judge has the jurisdiction to intervene in a first bail review judge’s decision where there has been an error of law.
R v farinacci, 2008 Onsc (quicklaw)
Disclosure following the initial bail hearing may show gaps in the Crown’s case and rise to the level of a material change in circumstances.
Estreatment
R v Norman, 2014 ONSC 2005
Even where one surety guarantees the other that they will take over the bail, until it is done in court both remain liable in the event of a breach. Substantial forfeiture is required even for breaches that do not involve absconding or new offences.
R v Bullen, 2021 ONSC 1517
Review of procedural and substantive requirements of noting in default and commencing estreatment proceedings.
R v Biya, 2022 ONCA 99
In deciding whether and how much forfeiture is appropriate, judges presiding over an estreatment hearing should consider the financial circumstances of the sureties and the accused. $1,500 and $750 ordered forfeited from accused and sureties, respectively, on a $20,000 bail.
Systemic discrimination and bail
“Proportionality as constraint on Indigenous detention”
Lead counsel Chris Rudnicki’s forthcoming paper on a proposal for interpreting s. 493.2 as a limit on pre-trial detention.
R v EB, 2020 ONSC 4383
The accused’s criminal history must be viewed in light of systemic discrimination they may have experienced.
R v NY, 2021 ONSC 1398
The accused’s membership in a vulnerable and over-represented group is relevant in assessing whether their detention is necessary to maintain confidence in the administration of justice.
R v Ofori-Mensah, 2021 ONSC 90
Release of racialized accused persons on bail may be necessary to maintain confidence in the administration of justice.
R v LWB, 2021 ONSC 6152
A justice who fails to consider systemic discrimination at the bail stage errs in law.
Helpful cases
R v Tunney, 2018 ONSC 961
In Crown onus cases, defence counsel may insist on a preliminary ruling that a surety is necessary before calling their surety as a witness.
R v Jaser, 2020 ONCA 606
To meet its onus on the secondary ground, the Crown must show more than risk that the accused will commit an offence by breaching their bail. The Crown must show that there is a substantial risk that the accused’s release would endanger the protection or safety of the public.
R v Elliott, 2020 ONSC 2976
The risk of disproportionate detention can outweigh risk of future misconduct and justify release—even where there are primary or secondary ground concerns.
R v Downey, 2018 ONSC [Quicklaw]
While the rules of evidence at a bail hearing are relaxed, they are not abdicated. Police reports regarding uncharged conduct may not be admissible.
R v GP, 2020 ONSC 3240
Even where there are public safety concerns, the risk that the accused will serve a fit sentence before their trial can tip the balance in favour of release.
R v RH, 2021 ONCA 236
Good language on overbroad conditions prohibiting the use of the Internet.
R v Green, 2006 ONSC (Quicklaw)
Test for a Crown application to revoke bail following a guilty verdict.