General Principles

[Excerpted from R v Antic2017 ONCA 27 at para 67]

  • Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

  • Section 11 () guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

  • Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

  • The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, “release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds”:, at para. 23. This principle must be adhered to strictly.

  • If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, 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 having regard to the statutory criteria for detention.

  • Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

  • A recognizance with sureties is one of the most onerous forms of release.  A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

  • It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. 

  • When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must beproportionate to the means of the accused and the circumstances of the case. 

  • Terms of release imposed unders. 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person’s behaviour or to punish an accused person.

  • Where a bail review is applied for, the court must follow the bail review process set out in.

Where new indictment preferred

Where an accused has been released or detained on the basis of an information charging certain offences, and a new indictment is later preferred, the previous detention order continues to apply in respect of the new indictment, pursuant to section 523(1.2). The purpose and effect of s. 523(1.2) is to continue the previous detention order and make it apply to the new indictment.Any stay of the original charges therefore, has no effect on the ongoing status of the original detention order: R v Codina, 2017 ONCA 93 at paras 18-20

The "Whyte" concern

Where the amount of time an accused has spent in pre-trial custody is close to the likely sentence s/he would receive after conviction, this becomes a serious liberty issue, militating in favour of release and/or warranting a bail review: R v Whyte, 2014 ONCA 268 at paras 42-43; see, for example, R v Codina, 2017 ONCA 93 at paras 26-29