The recent case of R. v. Tunney sent an important message about the Court’s overreliance on sureties in our bail system. A surety is a person who agrees to monitor an accused person while they are released into the community, ensuring that they attend all court dates and that they abide by the terms of their release. Sureties are considered the strictest form of release available to an accused person awaiting trial, particularly a residential surety who is required to live with the accused.

The leading case of R. v. Antic reminded Crowns that they must follow the “ladder principle” regarding bail. This means that the least restrictive form of bail must be considered first, and only if this is rejected as being insufficient, may they move up the ladder to consider the second least restrictive form of release. This process is to be repeated for each “rung” of the ladder, moving to more restrictive forms of release only when less restrictive options have been rejected. As release with a surety is the most restrictive option available before ordering detention, this option should be a last resort, not a starting point.

In practice, cases since Antic have demonstrated that some Crown Attorneys and courts have already forgotten the importance of the ladder principle and R. v. Tunney was one such case. In this case, the Crown proposed a surety with conditions and a monetary pledge as their first position. Justice of the Peace Romagnoli declined to rule first on whether a surety was necessary before having the proposed surety testify. As a result, Mr. Tunney was released with a surety.

Mr. Tunney applied for a bail review in the Superior Court where Justice Di Luca found that the decision of the lower court was “tainted by legal error” and “procedurally flawed.” Justice Di Luca found that the Justice of the Peace was wrong not to grant the defence’s request that she first rule on whether a surety was even needed for Tunney’s release and for not providing reasons why lesser forms of release were insufficient in the circumstances.

Justice Di Luca also noted that the widespread overuse of sureties has been criticized for causing delays within the bail system, undermining the presumption of innocence, and undermining the accused’s right to reasonable bail. The “near automatic” use of sureties which has developed places an unfair and unjust burden on the accused to prove why a surety is not required.

This case serves as an important reminder to the courts that the ruling in Antic is binding and must be followed, ensuring it is easier for legally innocent people to be released pending their trials.