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Milligan's Criminal Law Advisor | Cash Bail

Milligan's Criminal Law Advisor | Cash Bail

Supreme Court of Canada holds recognizance is functionally equivalent to cash bail, affirms importance of “ladder principle”

Milligan’s Criminal Law Advisor

by Jeffrey Milligan

The Supreme Court of Canada recently decided an appeal in which the Crown appealed a finding by a judge of the Ontario Superior Court of Justice that s. 515(2)(e) of the Criminal Code was unconstitutional.

Section 515(2)(e) permits a judge or justice to require both a cash deposit and surety supervision as conditions of release if the accused resides out of the province or more than 200 km from the place where he or she is in custody.

The Supreme Court of Canada held that the judge, who decided an application for a bail review of a detention order, erred in holding that s. 516(2)(e) denied the applicant bail; thus, it was unnecessary to rule on whether s. 515(2)(e) violated s. 11(e) of the Charter. In their decision, the Supreme Court of Canada affirmed the importance of the “ladder principle” codified in s. 515(2) and (3) of the Criminal Code.

The respondent, Mr Antic, was arrested in Windsor, Ontario, and charged with drugs and firearms offences. He was ordinarily resident in Ontario but spent much of his time in the United States and had no assets here. Although he offered a surety release, he was denied bail at his bail hearing, owing to a “substantial flight risk”.

He commenced a bail review under s. 520 of the Criminal Code and offered a pledge or a cash deposit as well as two additional sureties — his father and grandmother — with a view to meeting the flight risk. The judge hearing the bail review rejected the new plan and upheld the detention order.

The judge insisted on a cash deposit because he was concerned that Mr Antic could abscond if what was at stake was a “mere pledge” of $10,000 from his grandmother. He “speculated”, as Wagner J. put it at para. 12, that Mr Antic would assume that if he absconded, the state would not seize his elderly grandmother’s house. Thus, a surety bail alone was not, for the bail review judge, adequate to bind the conscience of the applicant. The bail review judge wrote that he would have released the applicant on a bail with both a cash deposit and surety supervision, but Mr Antic did not qualify for this because he was ordinarily resident of the province and lived within 200 km of where he was in custody.

A second bail review was brought before the same judge after Mr Antic had pleaded guilty to the drug charges (thus removing the “reverse onus” from play) and after a co-accused had been released. The bail review judge still upheld the detention order because he was concerned about the flight risk.

In a third bail review, the same judge found that s. 515(2)(e) violated s. 11(e) of the Charter (the right not to be denied reasonable bail) and struck down the geographical limitation within s. 515(2)(e). He also released him on a surety bail with a cash deposit in the amount of $100,000.

Mr Antic was released after over a year in pre-trial custody once he raised the funds to make the $100,000 cash deposit. The Supreme Court of Canada granted leave to appeal the bail review because there is no right of appeal a decision under s. 520 of the Criminal Code to the Ontario Court of Appeal.

Beginning in the sixties, scholars and courts began to recognize that requiring a cash deposit as a precondition to bail could operate harshly against the poor. In 1972, the Bail Reform Act codified the “ladder principle” that is now incorporated in s. 515(2) and (3) of the Criminal Code. The “ladder principle” requires that the form of release be no more onerous than is required. In the words of Healy JCQ, as he then was, in R. v. Anoussis, 2008 CarswellQue 8409, 2008 QCCQ 8100 (C.Q.), which was quoted with approval at para. 29, “release is favoured at the earliest reasonable opportunity and . . . on the least onerous grounds”.

The statutory regime in s. 515(2) and (3) requires that an accused be released “on his giving an undertaking with conditions” but it is open to the prosecutor to show cause why a more stringent form of release, or a detention order, is justified. Each form of release, moving up the “ladder” from s. 515(2)(a) to s. 515(2)(e) involves, as Wagner J. wrote at para. 46, “more burdensome conditions of release for the accused than the one before it”.

Section 515(3) prohibits a judge or justice from imposing a more onerous form of release unless the Crown shows why a less stringent form of release is inappropriate: “The justice shall not make an order under any of paragraphs 2(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.”

Justice Wagner held that a pledge and a cash deposit perform the very same function: the accused or his or her surety may lose his or her money if the accused breaches a term of the bail. As Wagner J. put it at para. 49, “Release with a pledge of money thus has the same coercive power as release with a cash deposit.”

Thus, the bail review judge erred in that he insisted on a cash deposit despite the availability of a pledge. To quote Justice Wagner at para. 52, he “was fixated on a cash deposit because he believed the erroneous assumption that cash is more coercive than a pledge” whereas “a recognizance is functionally equivalent to a cash bail and has the same coercive effect”. The bail review judge misapplied the “ladder principle”.

He also erred in holding that the “pull of bail” would not be strong enough without a cash deposit. He was concerned that Mr Antic believed that the state would not take forfeiture proceedings against her elderly grandmother. This was, Wagner J. concluded, improper conjecture.

Further, the quantum was set well beyond the reach of the accused and his sureties. Courts have long held that it is impermissible to “fix the amount of a surety or cash deposit so high as to effectively constitute a detention order”, as Justice Wagner wrote at para. 56. Not surprisingly, it took months and months for the accused to raise the money for the cash deposit.

Not only was the bail review judge’s insistence on cash bail unreasonable in that he did not apply the “ladder principle”, but the quantum he set was Mr Antic’s “de facto prison” because it was too high.

Requiring a cash deposit has the potential to result in increased incarceration of accused persons and restricts impecunious persons from judicial interim release. An accused person’s release should not be contingent on his or her ability “to marshall funds or property in advance”, as Professor Martin Friedland put it in his landmark study on bail.

Had the bail review judge properly applied the bail provisions, the Supreme Court concluded, Mr Antic would have been given reasonable bail. They reversed the finding of unconstitutionality and ordered the release by replacing his release order with a cash-only bail on the same terms.

In the closing paragraphs of the decision, Justice Wagner noted with dismay that the bail provisions of the Criminal Code are applied unevenly and inconsistently across this country and, notwithstanding s. 11(e) of the Charter, the number of persons on remand has increased dramatically in recent years.
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