In June 2017, the Supreme Court of Canada released their decision in the case of R. v. Antic. Antic appealed the Criminal Code’s restrictions on the use of cash bail. The Supreme Court used this opportunity to reinforce several important principles of bail, including the following:

  • Accused persons are constitutionally presumed innocent and should benefit from a constitutional right to bail;
  • There is a constitutional right not to be denied bail without just cause and a right to bail on reasonable terms;
  • In most circumstances, an unconditional release on an undertaking is the default position when granting release;
  • The ladder principle of bail must be adhered to and if the Crown proposes an alternative form of release, it must show why this form is necessary. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release;
  • A recognizance with sureties is one of the most onerous forms of release and a surety should not be imposed unless all other less onerous forms of release have been considered; and
  • If cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order.

R. v. Antic is a reminder to Crowns, Justices of the Peace, and all those participating in the bail process of what is at stake at the bail stage and that accused persons’ constitutional rights must not be ignored. If courts across Canada put this decision into practice and remember these crucial principles of bail, unnecessary bail conditions will be scrutinized more harshly and fewer accused persons will be unjustly detained.

If you have a question regarding bail or bail review, contact Cassandra or Kristen at DeMelo Law.