In the summer of 2017, Canada’s highest court stressed the importance of the presumption of innocence and the right to no be denied reasonable bail pending the outcome of an accused’s charges. Pre-trial detention has a negative affect on an accused mental, social and physical state. Furthermore, the SCC acknowledges that pre-trial custody can have a substantial effect on the trial outcome as well.
In R. v. Antic, 2017 SCC 27, the SCC stated the importance of relying on the “ladder principle” when deciding what, if any, conditions should be imposed on an accused pending the disposition of one’s case. This decision should provide guidance and consistency to all Courts in all jurisdictions when addressing pre-trial forms of release. An accused person should be released on the least onerous conditions and if the Crown is proposing a more restrictive form of release, they must justify to the Court why stricter conditions are necessary.
The “ladder principle” which must be adhered to and the principles and guidelines implemented my the SCC can be summarized as follows:
•- The default position when granting an accused bail is to provide them with an unconditional release on an undertaking. Therefore, unless a Crown justifies otherwise, an accused person should be released with no conditions and should simply be provided with a return court date.
•- If the Crown proposes an alternative form of release, it must show why this form of release is necessary. A Justice of the Peace or a Judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary.
•- Each rung of the ladder must be considered individually and must be rejected before a Justice of the Peace or a Judge imposes a more restrictive form of release. The more restrictive form of release must be justified.
•- A release with sureties (a person who has the responsibility of supervising an accused in the community) is one of the most onerous forms of release and should not be considered unless all other forms of less restrictive conditions have been considered.
•- Cash bail should only be considered in exceptional circumstances. If cash bail is imposed, it should not be set so high that it effectively amounts to a detention order.
•- Conditions should only be imposed if they are necessary. Therefore, conditions should not be imposed in an attempt to change a person’s behaviour or to punish an accused.
If you are interested in reading the entire decision of R. v. Antic, 2017 SCC 27: https://www.canlii.org/en/ca/scc/doc/2017/2017scc27/2017scc27.html?autocompleteStr=r%20v%20antic&autocompletePos=1