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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against arbitrary detention or imprisonment - Right to reasonable bail

Thursday, June 01, 2017 @ 2:11 PM  


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Appeal by the Crown from a decision of the Ontario Superior Court of Justice declaring s. 515(2)(e) of the Criminal Code unconstitutional. Antic was arrested in Windsor, Ontario and charged with several drug and firearms offences. He was an Ontario resident, but spent much of his time in the state of Michigan and had no assets in Canada. Antic was denied judicial interim release at his initial bail hearing in the Ontario Court of Justice. Antic subsequently brought two unsuccessful bail review applications in the Ontario Superior Court of Justice. In his third bail review application, Antic challenged the constitutionality of s. 515(2)(e) of the Criminal Code, which permitted a judge or a justice to require both a cash deposit and surety supervision as conditions of release if an accused ordinarily resided out of the province or more than 200 km away from the place in which he or she was in custody. The bail review judge found that s. 515(2)(e) violated the right not to be denied reasonable bail without just cause under s. 11(e) of the Canadian Charter of Rights and Freedoms (Charter). He held that the only viable conditions of release for Antic would be a large cash deposit and surety supervision, but the geographical limitation in s. 515(2)(e) prevented him from granting bail on these terms, as Antic resided within 200 km of the place in which he was detained and therefore did not meet the criteria outlined in the provision. The bail review judge thus concluded that the geographical restriction unconstitutionally denied Antic bail. He severed and struck down the geographical limitation in s. 515(2)(e). He then ordered Antic’s release with a surety and a cash deposit of $100,000. After over a year in pre-trial custody, Antic raised sufficient funds to post the $100,000 cash deposit and was released. The main issue in the appeal was whether s. 515(2)(e) of the Criminal Code infringed the right not to be denied reasonable bail without just cause under s. 11(e) of the Charter.

HELD: Appeal allowed. The right under s. 11(e) of the Charter contained two aspects: (1) the right not to be denied bail without “just cause” and (2) the right to “reasonable bail”. The proper interpretation of s. 515(2)(e) required an examination of the ladder principle, which required that the form of release imposed on an accused be no more onerous than necessary. This principle was codified in the bail provisions of the Criminal Code, including s. 515(3), which prohibited a justice or a judge from imposing a more onerous form of release unless the Crown showed why a less onerous form was inappropriate. Parliament included cash in the most onerous “rungs” of the ladder for added flexibility, not because cash was more effective than other release conditions in ensuring compliance with bail terms. In circumstances where a monetary condition of release was necessary and a satisfactory personal recognizance or recognizance with sureties could be obtained, a justice or a judge could not impose cash bail. A pledge and a deposit performed the same function: the accused or the surety could lose his or her money if the accused person breached the terms of bail. Release with a pledge of money thus had the same coercive power as release with a cash deposit. Once Antic had satisfied the bail review judge that new circumstances justified vacating the detention order, the ladder principle ought to have guided the judge in fashioning a release order. The bail review judge failed to apply the ladder principle properly by insisting on a cash requirement despite the existence of other forms of release, including a recognizance with sureties. The bail review judge also erred in denying bail on the basis of his concern that Antic might believe that a forfeiture proceeding would not be taken against his elderly grandmother, one of the proposed sureties, if he breached his bail terms. A justice or a judge could not impose a more onerous form of release solely because he or she speculated that the accused would not believe in the enforceability of a surety or a pledge. In addition, a cash deposit amount should not be set beyond the readily available means of the accused and his or her sureties. The quantum that the bail review judge set for Antic’s cash bail essentially became his “de facto prison”, as it took Antic many months in custody to raise the $100,000 needed to satisfy the release condition. However, given that s. 515(2)(e) did not have the effect of denying Antic bail, the Court could not conclude that it denied him bail without “just cause”. Thus, the first aspect of the s. 11(e) right not to be denied reasonable bail without just cause was not triggered. It was not necessary for the Court to address the second aspect of the s. 11(e) right. Properly interpreted, s. 515(2)(e) did not apply to Antic and could not therefore authorize an unreasonable form of release in his case. Accordingly, the declaration of unconstitutionality was reversed. The Court also outlined a series of principles and guidelines to be adhered to during contested bail hearings to ensure that the Criminal Code bail provisions were applied consistently and fairly throughout the Country.

R. v. Antic, [2017] S.C.J. No. 27, Supreme Court of Canada, McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ., June 1, 2017. Digest No. TLD-May292017011SCC