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. Although infrequent, the principles of fundamental justice demand that “even one arrest requires some mechanism for release.” 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. 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, the officer in charge or by a justice at a bail hearing within 24 hours. 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.” The onus rests on the prosecution to show cause why an arrested defendant should remain in custody pending his or her trial. Conditions for release are also prescribed, but the list is limited and the conditions must be considered sequentially. 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.
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. 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.” 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.
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.”
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. 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.” 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. In the 2002 decision of R v. Hall, 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,” 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. 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, others have given it a more expansive interpretation. An accused need not have committed a particular crime for clause 515(10)(c) to apply.
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. Fairness dictates that pre-trial detention should only be imposed where necessary. Depriving an accused of his or her liberty prior to conviction is one of the bluntest instruments the state can use. Pre-trial remand can be harsher than detention after sentencing. There is also a “disturbing relationship” between pre-trial detention and the outcome of trial. Moreover, systems of bail have tended to discriminate and disadvantage people on the basis of race, ethnicity and income. 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; 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. 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.” 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.