Bail conditions that make you wonder if you should have stayed in custody for one more day. Understanding the Bail System in Canada and how to vary onerous bail conditions.
The Charter of Rights and Freedoms guarantees a right to a reasonable bail. The Criminal Code states that a person MUST be released on their own recognizance without any conditions. Restrictive conditions can only be imposed if the Crown can demonstrate why they are necessary in relation to 3 grounds set out In the Code. (certain specific offences require the accused to demonstrate why they should be released without any or with minimal conditions)
- to prevent the person from fleeing the jurisdiction (primary grounds)
- to preclude a substantial risk of reoffending(secondary)
- or is otherwise demanded by the public interest. (tertiary)
For many years, the Courts have been treating this strong presumption against imposing strict conditions as more of a suggestion instead of a binding legal principle. Time and time again, first time offenders were released on Bail orders with stringent conditions, such as for example, having to live with a surety (a responsible friend or family member willing to promise the Court at the fear of losing their money, to supervise the accused).
After many years, countless efforts by defence lawyers and numerous breach charges against those who found it impossible to comply with onerous and unnecessary restrictions, the Supreme Court of Canada, in R. v. Antic, directed the Crowns and the Courts to follow the law. The Court made it clear: Requiring an adult person, with no criminal record, accused of a run of the mill offence, to reside with a surety must stop!
That direction, from the highest Court in Canada, did not accomplish the desired change. Justice Di Luca, of Superior Court Justice, presiding in the Cental East Region (Newmarket, Oshawa, Peterborough) in what can only be described as an outcry, not a judgment, demanded that the Crowns and the Bail Courts abandon the old habits of requesting and imposing overly restrictive bail conditions. Finally, it was heard by some! The head prosecutor in Newmarket appeared before Justice Di Luca and promised that all the prosecutors in Newmarket will now consent to the release of the accused persons without insisting on stringent conditions.
Unfortunately, the same cannot be said about the Brampton Court House. Restrictive conditions are routinely requested by The Crowns and imposed by the Courts, presumably out of habit.
WHAT HAPPENS AT A BAIL HEARING AND WHAT TO DO?
Often, when offered a release, most accused will accept the terms offered since waiting for their turn to have a contested bail hearing (where you lawyer attempts to persuade the Justice of the Peace that the conditions are not required in law) may mean spending a night in custody (particularly in some busier jurisdictions).
Bail courts are busy. Duty counsel are spread thin. When not using the services of a private lawyer on bail, one must try to resist the urge to accept restrictive conditions just to secure an immediate release.
Post bail hearing, there are only two ways to change any of the imposed conditions:
- Seek consent of the Crown, which is unlikely to happen right away since the Crown sought those conditions in the first place;
- By Bringing a Bail Review in Superior Court, the procedure requires private counsel, it is time consuming and costly.
Change takes time. We as defence counsel will continue our efforts to effect change not only on individual cases but also on the larger scale.
In the meantime, if you are on bail conditions that are difficult for you, you must continue to comply no matter how onerous and seek legal assistance and try to legally vary them.