Supreme Court


Criminal Law

Charter of Rights and Freedoms

Unreasonable denial of bail [s. 11(e)]

Legislated form of release and specific terms of release can be unreasonable and unconstitutional

Respondent accused, KA, was Ontario resident, but he spent much of his time in Michigan and had no assets in Canada. At KA’s initial bail hearing, justice of the peace denied his release. KA sought review of detention order under s. 520 of Criminal Code of Canada. Bail review judge would have released KA if he could have imposed both surety and cash deposit as release conditions in order to satisfy flight risk and safety concerns. In subsequent bail review application, KA successfully challenged constitutionality of s. 515(2)(e). Bail review judge held that only viable conditions of release for KA would be large cash deposit and surety supervision but geographical limitation in s. 515(2)(e) prevented him from granting bail on those terms. He found that s. 515(2)(e) violated right not to be denied reasonable bail without just cause under s. 11(e) of Canadian Charter of Rights and Freedoms. He concluded that geographical restriction unconstitutionally denied KA bail, severed and struck down geographical limitation in s. 515(2)(e) and ordered KA’s release with surety and cash deposit of $100,000. Crown appealed. Appeal allowed. Right not to be denied bail without just cause imposes constitutional standard that must be met for denial of bail to be valid. Right to reasonable bail relates to terms of bail, including quantum of any monetary component as well as restrictions imposed on accused for release period. Section 515(2) of Code establishes only legal forms of pre-trial release, such as surety release or release with recognizance. However, it is justice of peace or judge who ultimately decides which form of release to order in given case, and he or she also has discretion under s. 515(4) of Code to impose terms that are specific to circumstances of accused. Both legislated form of release and specific terms of release ordered by justice of peace or judge can be unreasonable and therefore unconstitutional. Bail review judge erred by requiring cash deposit with surety, one of most onerous forms of release, even though KA had offered surety with monetary pledge. If bail review judge had applied bail provisions properly, KA could have been granted reasonable bail. Given that s. 515(2)(e) of Code did not have effect of denying KA bail, it could not be concluded that it denied him bail without “just cause.” Thus, s. 11(e) right not to be denied reasonable bail without just cause was not triggered. Fact that cash bail was not option in KA’s case did not have effect of denying him bail. Because Crown had justified monetary condition of release, KA or his sureties should have been allowed to pledge money rather than being required to deposit money with court. Given Crown’s consent, it was ordered that KA’s cash-plus-surety release ordered by bail review judge be replaced with cash-only release on same terms as those that bail review judge imposed.

R. v. Antic (2017), 2017 CarswellOnt 8134, 2017 CarswellOnt 8135, 2017 SCC 27, 2017 CSC 27, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.).

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