1. Custody and Bail

The premise once someone has been arrested is that they are presumed innocent. In principle, therefore, they should be released whilst they await trial and this is confirmed in the Charter's section 11(e). This is a change from an earlier era of Canadian criminal law in which granting bail was discretionary. So evident is this in theory that the police (a "peace officer") has the power to release you on the spot for example after giving you an appearance notice or a recognizance, involving cash or not. In most cases however the police tend to detain individuals who then appear in bail court in the hope of obtaining a judicial interim release. This is one of the manifestations of risk aversion and it has tended to contribute to the overcrowding of bail court.

If not released by the police, you have the right to a bail hearing within 24 hours of arrest. Remember that at this stage you still have a right to be granted bail reasonably; in other words the Courts can only deny you bail if they have "just cause." The three grounds for being denied bail and therefore being detained are often separated between "primary", "secondary" and "tertiary" grounds. Primary grounds are the most obvious: they go to the need to ensure the accused's presence at his trial. The Courts will look at a range of factors such as the accused's criminal history, their connections to the jurisdiction and the type of offence they are accused of.

Secondary grounds refer to the need to protect the public, and include an assessment of whether there is substantial likelihood the accused will commit a further offence or interfere with the administration of justice (e.g.: tamper with evidence of intimidate witnesses or victims). These are not particularly problematic and have been found constitutional by the Supreme Court. Although it is true that bail courts are asked to assess a future risk, this is not in relation to guilt or innocence but merely for the purposes of deciding whether to grant bail.

Tertiary grounds are the most contentious. Under the old formulation of the Criminal Code, an accused could be denied bail if "detention is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice" (s. 515(10)). In the Morales case the Supreme Court rejected this notion as basically in violation of section 11

There is an increasing gap, however, between the theory of bail and its practice. Normally, bail should only be denied in exceptional circumstances but the tend suggests that exactly the opposite is happening, for reasons that are complex but may have to do with risk aversion. In addition, denial of bail impacts certain communities, particularly indigenous peoples, particularly strongly (for example, it may be harder for indigenous individuals living far from their community to obtain sureties who will vouch for the accused).

Further Readings:

• • Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, Canadian Civil Liberties Association and Education Trust, July 2014

• Nagy, Sarah. “Use and Abuse of Pre-Trial Detention in Council of Europe States: A Path to Reform Student Articles.” Loyola University Chicago International Law Review 13 (2016): 159–74.

  • “The First Global Survey of the Most Overlooked Human Rights Crisis of Our Time.” Open Society Foundations. Accessed November 18, 2016. https://www.opensocietyfoundations.org/publications/presumption-guilt-global-overuse-pretrial-detention.

  • “Pre-Trial Detention: The Issue.” Penal Reform International. Accessed November 18, 2016. https://www.penalreform.org/priorities/pre-trial-justice/issue/.

  • Toronto Star Newspapers Ltd. v. Canada [2010] SCC 21

  • Committee on Legal Affairs and Human Rights, Abuse of pre-trial detention in States Parties to the European Convention on Human Rights, Report, Rapporteur: Mr Pedro Agramunt, Spain, Group of the European People’s Party

  • Sacks, Meghan, and Alissa R. Ackerman. “Bail and Sentencing Does Pretrial Detention Lead to Harsher Punishment?” Criminal Justice Policy Review 25, no. 1 (January 1, 2014): 59–77. doi:10.1177/0887403412461501.

• "Indigenous issues within the bail system" online <www.lawtimesnews.com/video/indigenous-issues-within-the-bail-system-567/>