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BAIL - GENERAL PRINCIPLES

R. v. Morales, [1992] 3 SCR 711  CanLII

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                 The accused was charged with narcotics offences under ss. 4 and 5 of the Narcotic Control Act and s. 465(1)(c) of the Criminal Code.  He is alleged to have participated in a major network to import cocaine into Canada.  At the time of his arrest, he was awaiting trial for assault with a weapon, an indictable offence.  The accused was denied bail and was ordered detained in custody until trial.  


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                  Per Lamer C.J. and La Forest, Sopinka, McLachlin and Iacobucci JJ.:  For the reasons given in Pearson, the "public safety" component of s. 515(10)(b) is constitutionally valid.  Section 11(d) of the Charter creates a procedural and evidentiary rule which operates at the trial requiring the prosecution to prove the guilt of the accused beyond a reasonable doubt.  It has no application at the bail stage where guilt or innocence is not determined and where punishment is not imposed.  The "public safety" component of s. 515(10)(b) therefore does not infringe s. 11(d).  With respect to s. 7 of the Charter, the accused's challenge should be determined under s. 11(e) of the Charter because that section offers a highly specific guarantee which covers precisely his claim.  The presumption of innocence is a principle of fundamental justice which applies at all stages of the criminal process, but its procedural requirements at the bail stage are satisfied whenever the requirements of s. 11(e) are satisfied.  


This section creates a basic entitlement to be granted reasonable bail unless there is "just cause" to do otherwise.  There is just cause to deny bail under s. 11(e) if two criteria are met:  the denial of bail must occur only in a narrow set of circumstances, and the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system.  The "public safety" component of s. 515(10)(b) meets these criteria.


First, bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public".  Moreover, detention is justified only when it is "necessary" for public safety.  


Second, the bail system does not function properly if an accused interferes with the administration of justice or commits crimes while on bail.  While it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated.  It is sufficient that the bail system establish a likelihood of dangerousness.  The bail provisions of the Code also provide for substantial procedural safeguards against the inefficacy of predictions about dangerousness.  Finally, with respect to s. 9 of the Charter, while the "public safety" component of s. 515(10)(b) provides for persons to be "detained" within the meaning of s. 9, those persons are not detained "arbitrarily".  Detention under the "public safety" component of s. 515(10)(b) is not governed by unstructured discretion.  The "public safety" component sets out a process with fixed standards and sets specific conditions for bail.  Furthermore, the bail process is subject to very exacting procedural guarantees.  It follows that the "public safety" component of s. 515(10)(b) does not violate s. 9.

                  The "public interest" component as a basis for pre-trial detention under s. 515(10)(b) violates s. 11(e) of the Charter, however, because it authorizes detention in terms which are vague and imprecise and thus authorizes a denial of bail without just cause. ...


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                  In light of Pearson,  s. 515(6)(d) of the Code, to the extent that it requires the accused to show cause why detention is not justified, does not violate ss. 7, 9, 11(d) or 11(e) of the Charter.

                  This conclusion is also applicable to s. 515(6)(a) of the Code.  Since s. 11(d) of the Charter is not applicable at the bail stage, s. 515(6)(a) therefore does not infringe s. 11(d). With respect to s. 7 of the Charter, the accused's case should be analysed under s. 11(e) rather than the more general provisions of s. 7.  While s. 515(6)(a) requires the accused to demonstrate that detention is not justified, thereby denying the basic entitlement under s. 11(e) to be granted bail unless pre-trial detention is justified by the prosecution, s. 515(6)(a) provides just cause to deny bail.  First, the denial of bail occurs only in a narrow set of circumstances.  Section 515(6)(a) applies only to indictable offences and denies bail only when the persons who have been charged with an indictable offence while on bail for another indictable offence do not show cause why detention is not justified.  Second, the denial of bail is necessary to promote the proper functioning of the bail system.  The special bail rules in s. 515(6)(a) do not have any purpose extraneous to the bail system, but rather merely establish an effective bail system in circumstances where there are reasonable grounds to believe that the normal bail system is permitting continuing criminal behaviour.  By requiring the accused to justify bail, s. 515(6)(a) seeks to ensure that the objective of stopping criminal behaviour will be achieved.  The scope of these special rules is thus carefully tailored to achieve a properly functioning bail system.  With respect to s. 9 of the Charter,  s. 515(6)(a) does not provide for "arbitrary" detention.  Like s. 515(6)(d), s. 515(6)(a) sets out a process which is not discretionary and which is subject to fixed standards.  Section 515(6)(a) contains highly structured criteria and sets out specific conditions for bail.  In addition, the bail process is subject to very exacting procedural guarantees and subject to review by a superior court....



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R. v. Pearson, [1992] 3 SCR 665  CanLII

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                  The accused was charged with five counts of trafficking in narcotics, contrary to s. 4 of the Narcotic Control Act, and was ordered detained until trial.  At the preliminary inquiry, the accused was committed to trial and the judge refused his application, under s. 523(2)(b) of the Criminal Code, to review the order denying bail.  The accused then brought an application for habeas corpus, arguing that s. 515(6)(d) of the Code is unconstitutional, and that accordingly his detention was illegal.  This section provides that an accused charged with having committed a drug offence under s. 4 or 5 of the Narcotic Control Act, or with conspiracy to commit any of these offences, shall be detained in custody until trial unless he shows cause why his detention is not justified.

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                 Held :


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(1)  Habeas Corpus

                  In the narrow circumstances of this case, habeas corpus is available as a remedy against a denial of bail.  The accused's claim is a special type of constitutional claim.

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(2)  Validity of s. 515(6)(d) of the Criminal Code

                  Per Lamer C.J. and Sopinka and Iacobucci JJ.:  Section 515(6)(d) of the Code, to the extent that it requires the accused to show cause why detention is not justified, does not violate ss. 7, 9, 11(d) or 11(e) of the Charter.  

                  Section 11(d) of the Charter creates a procedural and evidentiary rule which operates at the trial requiring the prosecution to prove the guilt of the accused beyond a reasonable doubt.  This section has no application at the bail stage of the criminal process where guilt or innocence is not determined and where punishment is not imposed.  


But s. 11(d) does not exhaust the operation of the presumption of innocence as a principle of fundamental justice under s. 7 of the Charter.  The presumption of innocence under s. 7 applies at all stages of the criminal process and its particular requirements will vary according to the context in which it comes to be applied.  In this case, however, the Charter challenge falls to be determined according to s. 11(e) of the Charter, rather than under s. 7.  Section 11(e) offers "a highly specific guarantee" which covers precisely the accused's complaint.  The substantive right in s. 7 to be presumed innocent at the bail stage does not contain any procedural content beyond that contained in s. 11(e).

                  Section 11(e) creates a broad right guaranteeing both the right to obtain bail and the right to have that bail set on reasonable terms.  The meaning of "bail" in s. 11(e) includes all forms of judicial interim release.  


While s. 515(6)(d) requires the accused to demonstrate that detention is not justified, thereby denying the basic entitlement under s. 11(e) to be granted bail unless pre-trial detention is justified by the prosecution, it provides "just cause" to deny bail in certain circumstances and therefore does not violate s. 11(e).  


First, the denial of bail occurs only in a narrow set of circumstances. Second, it is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to the bail system.  


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 Trafficking in narcotics occurs systematically, usually within a highly sophisticated and lucrative commercial setting, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail.  There is also a marked danger that an accused charged with these offences will abscond rather than appear for trial.  Drug importers and traffickers have access both to a large amount of funds and to organizations which can assist in a flight from justice.  The special bail rules in s. 515(6)(d) combat the pre-trial recidivism and absconding problems by requiring the accused to demonstrate that they will not arise.  The scope of these special rules is thus carefully tailored to achieve a properly functioning bail system.


Section 515(6)(d) also applies to small or casual drug dealers, but they will normally have no difficulty justifying their release and obtaining bail.  Section 515(6)(d) allows differential treatment based on the seriousness of the offence.  Moreover, the onus which it imposes is reasonable in the sense that it requires the accused to provide information which he is most capable of providing.

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R. v. Hall, 2002 SCC 64, [2002] 3 SCR 309  CanLII

Neutral citation:  2002 SCC 64.

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In 1999, a woman’s body was found with 37 wounds to her hands, forearms, shoulder, neck and face.  Her assailant had tried to cut off her head.  The murder caused significant public concern and a general fear that a killer was at large. Based on compelling evidence linking the accused to the crime, he was charged with first degree murder.  He applied for bail.  The bail judge held that  pre-trial detention was not necessary “to ensure . . . attendance in court” nor for the “safety of the public” (s. 515(10)(a) and (b) of the Criminal Code).  He denied bail, however, under s. 515(10)(c) in order “to maintain confidence in the administration of justice” in view of the highly charged aftermath of the murder, the strong evidence implicating the accused, and the other factors referred to in para. (c).

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Per McLachlin C.J. and L’Heureux-Dubé, Gonthier, Bastarache and Binnie JJ.:


 Determining the constitutionality of denying bail in order to maintain confidence in the administration of justice requires considering s. 515(10)(c) as a whole.  The portion of s. 515(10)(c) permitting detention “on any other just cause being shown” is unconstitutional.  

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It is a fundamental principle of justice that an individual cannot be detained by virtue of a vague legal provision.  Parliament must lay out narrow and precise circumstances in which bail can be denied.

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The balance of s. 515(10)(c), which authorizes the denial of bail in order “to maintain confidence in the administration of justice”, is valid.  It provides a basis for denying bail not covered by s. 515(10)(a) and (b).  Although the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available because public confidence is essential to the proper functioning of the bail system and the justice system as a whole.

Denial of bail “to maintain confidence in the administration of justice” having regard to the factors set out in s. 515(10)(c) complies with s. 11(e) of the Charter.  This ground  is narrower and more precise than the old public interest ground which was struck down as vague in 1992

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Parliament has hedged the provision with important safeguards:  a judge can only deny bail if satisfied that, in view of the four specified factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice.  ...

The appropriate remedy in this case is to sever the phrase “on any other just cause being shown, and without limiting the generality of the foregoing,”.  The balance of s. 515(10)(c) can stand alone as a functioning whole without doing damage to Parliament’s intention.

The bail judge in this case considered the relevant factors and held that it was necessary to deny bail in order to maintain public confidence in the justice system. There is no error in his reasoning.


Jim O'Neil, LL.B.

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