VII. BAIL REFORM2017-03-03T18:35:02+00:00

Relatively few people are arrested for the commission of provincial offences. Even fewer are held or released on bail under the POA each year. In 2009, of the approximate 2.1 million provincial offence charges that were received by the court under Parts I and III, there were only 4,009 bail hearings (or 0.002% of all charges received). At those hearings, bail was denied in 426 cases involving Part III offences. Of the 18 Part I bail hearings, bail was never denied.[490] Although infrequent, the principles of fundamental justice demand that “even one arrest requires some mechanism for release.”[491] We turn to a summary of the arrest and bail provisions in the POA followed by an analysis of two areas of potential bail reform: (1) the grounds for detaining someone and (2) the conditions that a justice is authorized to impose when granting bail.   

There is no general power of arrest under the POA; a person may only be arrested before trial if the offence-creating statute specifically authorizes arrest.[492]  Unless otherwise provided for in the offence-creating statute, the arrest and bail provisions of the POA apply. In general, a defendant charged will be released by the arresting officer,[493] the officer in charge[494] or by a justice at a bail hearing within 24 hours.[495] Section 150 sets out the grounds for detention by a justice.  There is a clear presumption in this section “that a defendant who is arrested should be released pending the disposition of the charge, unless the detention is necessary to ensure the defendant’s attendance in court.”[496] The onus rests on the prosecution to show cause why an arrested defendant should remain in custody pending his or her trial.[497] Conditions for release are also prescribed, but the list is limited and the conditions must be considered sequentially.[498] Powers to review and appeal detention decisions are found in sections 151 and 152 of the POA. 

 

 

A.    Grounds for Detention

Section 150(4) authorizes a justice to order detention in custody to ensure the appearance of an accused in court, but it does not authorize a justice to order detention for the protection or safety of the public. It reads:

150(4) Order for detention — Where the prosecutor shows cause why the detention of the defendant in custody is justified to ensure his or her appearance in court, the justice shall order the defendant to be detained in custody until he or she is dealt with according to law.

This appears to have been by design. In 1980, Douglas Drinkwalter and Douglas Ewart, two drafters of the POA, wrote:

The release provisions of the Criminal Code must be sufficiently stringent to deal with persons who are or may be dangerous to the public peace and to the public interest . . . However, persons apprehended for provincial offences are in a different situation. Their arrest will probably have been made initially for one of the ancient, historical reasons of public interest, including the need to properly identify the accused, to secure or preserve evidence, or to prevent the continuation of the offence or similar offences. However, these concerns last only a short while; thereafter the only issue is the likelihood of the person appearing for his trial.[499]

The absence of a public safety ground for detention may result in absurdities. In R. v. Banka (1999), for instance, the court was forced to grapple with the question of bail for a defendant charged with a provincial offence which, if repeated, would jeopardize the protection and safety of the public.[500] Mr. Banka had been charged with three breaches of a restraining order under section 46 of the Family Law Act, which is invoked where a person has “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.”[501] Mr. Banka had recently been convicted of a similar offence. The court found that there was a substantial likelihood that, if released, Mr. Banka would reoffend. Under these circumstances, the justice determined that to follow 150(4) of the POA would

…cause an unacceptable and absurd consequence … it would bring the administration of justice into disrepute if this court was to turn a blind eye to the protection and prevention aspects of this case and order release, solely due to an obvious technical legislative deficiency.[502]

The court ordered detention based on its “inherent jurisdiction . . . [to] remedy legislative drafting errors or gaps which lead to consequences which cannot have been the intent of the Legislature.”[503]

The absence of a public safety ground for detention in the POA also leads to a lack of uniformity within the Act. It is peculiar that clause 149(1)(iii) authorizes a police officer to detain a defendant to prevent the continuation or repetition or the commission of another offence but that a justice is not authorized to order the same under subsection 150(4).

Similar to the POA, the application of the law of bail to criminal offences originally depended on the probability that an accused would appear in court. While this was once the sole ground for which an accused could be detained, other grounds of detention were eventually recognized.[504] Section 515(10) of the Criminal Code contains three grounds for detention: to ensure the attendance of the accused in court, for the protection or safety of the public, or to maintain confidence in the administration of justice. It states: 

515(10) Justification for detention in custody — For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b)  where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Complete correspondence between the POA and the Criminal Code may be contrary to the spirit of the POA, which was designed – at least in part – “to wrest provincial offences from the clutches of the Criminal Code’s procedure and its concomitant mind-set.”[505] However, as the Banka case demonstrates, the protection of the public might well be a necessary ground to deny bail in POA matters in certain circumstances. 

With respect to the third ground in the Criminal Code, recent cases have considered whether the objective of maintaining confidence in the administration of justice is a justifiable ground for refusing bail.[506] In the 2002 decision of R v. Hall,[507] the Supreme Court struck out part of the wording of clause 515(10)(c) but concluded that this ground is neither “superfluous [n]or unjustified,”[508] as public confidence in the judicial system is necessary to the well-functioning of both the bail system and the judicial system as a whole.[509] Although the Hall decision remains authoritative, there have been variances in the courts’ application of the reformed clause 515(10)(c). While some justices have emphasized that the provision should only be used in rare instances,[510] others have given it a more expansive interpretation.[511] An accused need not have committed a particular crime for clause 515(10)(c) to apply.[512]

While maintaining confidence in the administration of justice will in some instances be a valid ground for denying bail in the criminal context, it is difficult to conceive of instances that would justify its application in the context of provincial offences. Moreover, this proposition has not received much support in the LCO’s consultations. The application of clause 515(10)(c) entails the consideration of four stated factors including the gravity of the offence, the use of a firearm and whether the accused will serve a lengthy sentence. These grounds point to the differences between provincial and criminal offences, and to the limits of using the Criminal Code as a comparator for this particular ground of detention. As such, in our view, “maintaining confidence in the administration of justice” as a ground for denying bail should not be extended to the POA.

A foundational principle of all modern criminal law reform is the principle of restraint.[513] Fairness dictates that pre-trial detention should only be imposed where necessary.[514] Depriving an accused of his or her liberty prior to conviction is one of the bluntest instruments the state can use.[515] Pre-trial remand can be harsher than detention after sentencing.[516] There is also a “disturbing relationship” between pre-trial detention and the outcome of trial.[517] Moreover, systems of bail have tended to discriminate and disadvantage people on the basis of race, ethnicity and income.[518] Most importantly, the presumption of innocence and the right not to be denied reasonable bail are values entrenched in sections 11(d) and 11(e) of the Charter.  For these reasons, we prefer to limit the instances in which bail may be denied to those that are truly necessary in light of the nature and seriousness of provincial offences, as compared to criminal offences.

However, as Banka demonstrates, there may be unlawful conduct prohibited by provincial statutes that can create real public safety risks if repeated. In those instances, it would be absurd to ignore the public interest and maintain the presumption in favour of release. Where bail is denied to protect the public safety, care must be exercised. Case law has circumscribed what is and is not “necessary” for the public safety. Detention should not be ordered where it would be merely convenient or advantageous;[519] a risk of reoffending that will harm the public safety must be real. There must be “sufficient evidence of a clear and present danger to justify interference with the liberty of the accused” before guilt or innocence has been determined.[520] These cases suggest that any grounds for pre-trial detention within the POA must be limited. They should be used sparingly and only where necessary to ensure attendance in court or for the protection or safety of the public. Consideration may be given to prescribing within the POA the factors a court shall consider when deciding whether or not to refuse bail under any newly proposed “public safety” ground.

 

The LCO recommends that:

29.       The POA be amended to permit a justice to deny bail where detention is necessary for the protection or safety of the public, including any alleged victims or witnesses, having regard to all the circumstances.  For denying bail under this ground, the prosecutor must demonstrate a real and substantial likelihood that the defendant will commit a serious offence that will harm the public.

30.       The POA not adopt “maintaining confidence in the administration of justice” as a ground for denying bail.

 
 

 

B.    Bail Conditions

The ability to impose bail conditions can be very important when deciding whether to grant bail. As one author states, “[t]he balance of the decision whether to remand a person in custody or on bail may well rest on the ability of the court to impose meaningful conditions on bail.”[521] However, the authority to impose bail conditions in the POA is very limited.

Clause 150(2)(a) of the POA empowers a justice to impose bail conditions generally, but only to “ensure his or her appearance in court.” Clause 150(2)(b) and (c) cover offences that can lead to twelve or more months in prison, or ones where the defendant is not ordinarily resident in Ontario. In both situations, the court may impose the condition of recognizance with sureties or depositing security with the court. Again, these conditions may only be imposed to ensure the defendant’s appearance in court. 

R. v. Desroches,[522] a 1986 Ontario District Court decision, confirmed that the power to impose bail conditions is limited. A man was charged with an offence contrary to the Trespass to Property Act. A justice of the peace ordered that the defendant not enter certain premises as a term of the bail order. On appeal, the court confirmed that the only authority to impose bail conditions is to ensure the defendant’s appearance in court. The court said, “[h]owever desirable it may be in certain circumstances to order that a person stay away from certain property, to impose such a condition is clearly beyond the powers given to the justice by [s. 150(2)(a)].”[523]    

The Criminal Code can be used as a basis for comparison with the POA’s treatment of bail conditions. Similar to the POA, the Criminal Code approaches bail conditions with caution. Bail orders must account for the fact that they are made previous to a finding of guilt. As such, checks must exist against conditions that are inappropriately intrusive.[524] Section 515(4) of the Criminal Code authorizes a justice to select from five key types of bail conditions and permits other reasonable conditions to be imposed where appropriate.

515(4) Conditions authorized — The justice may direct as conditions . . .  that the accused shall do any one or more of the following things as specified in the order:

(a) report at times to be stated in the order to a peace officer or other person designated in the order;

(b)  remain within a territorial jurisdiction specified in the order;

(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;

(d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the justice considers necessary;

(e) where the accused is the holder of a passport, deposit his passport as specified in the order; [and]. . .

(f) comply with such other reasonable conditions specified in the order as the justice considers desirable.

Subsection 515(4.1) authorizes a justice to restrict the use or possession of hazardous possessions such as firearms, explosives and other restricted weapons. Beyond the conditions explicitly set out in s. 515(4), non-enumerated types of conditions include monetary conditions, curfews, orders to seek medical treatment, control drug and alcohol consumption and to carry identification or release documents at all times.[525] Examples of bail conditions less frequently used include not possessing a cell phone and not using a computer or attending football (soccer) matches.[526]

The Charter and case law place limits on bail conditions. Section 11(e) requires that any bail conditions imposed be reasonable.[527] Cases prior to the Charter considered when a bail condition would be reasonable. For one, bail conditions must relate to the offence with which the accused has been charged or to the context under which the accused was charged with the offence.[528] Conditions must be “operable” or not so onerous as to effectively amount to a detention order.[529] They must also not be so vague or overbroad as to lack certainty.[530] Finally, conditions should relate to the grounds for release and detention specified by the legislature.[531] In other words, they must be related to the purposes of bail and should not be used as a form of summary punishment to show the defendant that the court “means business”.[532]

When a defendant is charged with both criminal and provincial offences simultaneously, POA bail conditions become more complicated to impose. Under these circumstances, bail must be considered and ordered under two separate forms of release.[533] This gives rise to jurisdictional and other problems.[534] In this regard, the Law Reform Commission of Canada has stated that “efficiency must also be promoted, especially where to do so would not seriously jeopardize fairness and, in fact, would help promote it.” To this end, the LCO recommends that one level of court have complete competence and authority to determine judicial interim release or detention for both types of offences.[535] Alternatively, at a minimum, any additional conditions imposed on bail for provincial offences must also comply with those already ordered for criminal offences.

The LCO heard from many who were supportive of having more reasonable bail conditions available to a justice where necessary. Some of the specific conditions proposed include refraining from committing the same or similar offence, prohibitions on driving, non-communication orders stipulating that a defendant refrain from contacting witnesses or victims to the offence, and non-association orders stipulating that a defendant limit contact with a co-defendant. The imposition of prohibitions relating to the operation of a motor vehicle is a “delicate matter” and the courts have on occasion viewed these types of conditions as “punitive measure[s].”[536] They should only be imposed in limited circumstances, such as where a defendant awaiting trial has a history of drunk, stunt or suspended driving.[537] Non-communication and non-association orders should be used very sparingly as they may temporarily terminate contact with family members and impair legitimate trial preparation.[538] Caution must also be exercised to ensure that the conditions relate to the circumstances under which bail may be granted or denied and that they do not resemble a probation order.

A further concern is the limited ability of the court to impose bail conditions pending appeal. Section 110 of the POA states that someone who has been convicted and incarcerated may be released on bail pending appeal “upon any of the conditions set out in sub-section 150(2)”;[539] in other words, the same limited conditions available for post-arrest bail. When someone has been found guilty of a serious provincial offence and has been incarcerated, there is a stronger case to impose public safety and other conditions on bail. These may include conditions that the offender not commit the same or similar offence or attend at certain locations.

At the same time, the overall utility of bail conditions has been questioned.[540] There is no denying that enforcement of a number of types of conditions can be problematic.[541] There is also the risk that bail conditions can become subjected to overuse or “institutionalised” as some British researchers have documented.[542] Permitting the court to impose additional reasonable bail conditions that are directly related to the charge and the circumstances under which bail may be granted or denied can result in effective alternatives to pre-trial custody.  We recommend that these issues be the subject of further review.

 

The LCO recommends that:

31.       The Ministry of the Attorney General, in consultation with the judiciary, municipal prosecutors, defence bar and paralegals, review and consider any further bail conditions that ought to be added to the POA. 

 
 

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