R. v. Antic, 2017 SCC 27: The stakes are too high for anything less
The Supreme Court of Canada recently released R. v. Antic, 2017 SCC 27. The decision is poised to be a game changer for the law of bail in Canada. I was counsel for the Criminal Lawyers’ Association in this case along with John Norris. We asked the Supreme Court to tell bail courts that the default position for an accused person is their unconditional release, and beyond that the accused person should be released on the least restrictive conditions unless it is necessary to deny them bail. The Supreme Court accepted this submission.
What makes Antic interesting is that the case arrived at the Supreme Court on a narrow constitutional issue. The Court dealt with the issue quickly and took the time to speak about the bail system generally. Beginning at paragraph 66 of the decision, the Supreme Court speaks directly to bail courts. They did not have to do this to decide the case, but as the Court put it, “the stakes are too high for anything less.”
There are at least six interesting directions that the Supreme Court provides to bail courts.
First, the Court states in clear language that, with some exceptions, an unconditional release of an accused person on an Undertaking is the default position of bail courts.
Second, if the Crown wants to impose a more restrictive form of release it must show that it is necessary having regard to the statutory criteria for detention.
Third, when a bail hearing is contested between the parties and the bail court orders a restrictive form of release, the bail court must justify its decision to reject the less onerous forms of release. This is a corollary to the above paragraph. It is significant. The Supreme Court has made it an error of law to fail to justify why a less onerous form of release was not acceptable. This means that if a bail court fails to explain why a less onerous form of release was not used, the decision can be appealed to the Superior Court.
Fourth, before a bail court issues a cash bail it must inquire into the ability of the accused person to pay. Cash bails require an accused person to surrender money to the court as a guarantee that they will abide by the conditions of her or his bail. A strong criticism of cash bails is that they make it difficult for indigent accused persons to obtain bail. Cash bails are rare in Canada. Our courts normally require the accused person or the person who bails them out (a “surety”) to pledge an amount of money. If the accused person does not abide by the conditions of her or his bail the government can sue the person who pledged the money. This is why we don’t have people like Dog the Bounty Hunter in Canada. Sorry, A&E fans.
Fifth, the Supreme Court reminded bail courts that bail conditions must only be imposed to the extent necessary to maintain confidence in the administration of justice and ensure an accused person abides by her or his bail conditions. Bail conditions cannot be imposed to change an accused person’s behaviour or to punish an accused person. This should hopefully reduce the amount of unnecessary curfews and house arrests ordered as conditions of bail.
Sixth, sometimes the Crown and the defence agree on a release plan for the accused. Practically speaking this can result in the accused person’s release on more than the least onerous conditions. The reason is well-intentioned. The result, unconstitutional. Defence lawyers will come to bail court with all of the tools necessary to comply with an onerous bail, just in case the bail court wants it. After all, it is better to come to court prepared than unprepared, especially when the client is sitting in jail and wants to be released as soon as possible. However, when the defence comes to court with the tools for a more restrictive bail in hand, the Crown, quite naturally, is inclined to request those restrictive tools. I am referring to things like house arrest, the use of a surety, etc. If you are the accused person you are left in a tough position. Do you tell your lawyer to conduct a bail hearing so that you can get released on the least onerous conditions? If you do, your bail hearing could be moved to the next day because there is not enough time to conduct the hearing. You would have to spend another day in jail as a result. And of course, you could lose the hearing and be stuck jail for months. Or, do you consent to the more restrictive release option, in which case you are guaranteed to get out the same day? Most people choose to consent. I would. A guarantee with strict conditions is better than a chance of less strict conditions. The Supreme Court picked up on this and suggested to bail courts that they can reject the joint proposal between the Crown and defence when the proposal requests ovelry onerous conditions.
In conclusion, Antic is less new law than a reminder to bail courts to correctly follow the current law. If bail courts take the Supreme Court’s decision seriously, as they must, the landscape of bail court could be significantly changed.
See: The Criminal Lawyers’ Association’s Factum