Section 11(e) – Right not to be denied reasonable bail without just cause

Provision

11. Any person charged with an offence has the right:

  1. not to be denied reasonable bail without just cause;

Similar provisions

Section 2(f) of the Canadian Bill of Rights is a similar provision. See also the following international instruments binding on Canada: article 9(3) of the International Covenant on Civil and Political Rights, and article XXV of the American Declaration of the Rights and Duties of Man.

Similar provisions are also included in the following international, regional and comparative law instruments that are not legally binding on Canada: Constitution of the United States of America, the Eighth Amendment; article 5(3) of the European Convention on Human Rights; and article 7(5) of the American Convention on Human Rights.

Residual constitutional rights to bail may be provided under section 7 of the Charter (see under the heading of Bail Pending Appeal, below). However, Charter analysis of pre-trial detention generally will take place under the specific right set out at section 11(e) rather than under section 7 (R. v. Pearson, [1992] 3 S.C.R. 665, at paragraphs 42-43). Section 11(d), which specifically guarantees the presumption of innocence and other procedural rights for persons charged with an offence, does not directly apply to bail proceedings because guilt or innocence is not determined in such proceedings and punishment is not imposed (R. v. Morales, [1992] 3 S.C.R. 711, at 735; see also Pearson at paragraph 40).

Purpose

Section 11(e) is a procedural right that “entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons” (R. v. Antic, [2017] 1 S.C.R. 509, at paragraph 1; Pearson, supra, at paragraph 43; see also R. v. Hall, [2002] 3 S.C.R. 309, at paragraph 13; R. v. Oland, [2017] 1 S.C.R. 250, at paragraph 34). The Supreme Court also has noted that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception. To automatically order detention would be contrary to the ‘basic entitlement to be granted reasonable bail unless there is just cause to do otherwise’ that is guaranteed in section 11(e) of the Charter” (R. v. Myers, [2019] 2 S.C.R. 105, at paragraph 24 and R. v. St-Cloud, [2015] S.C.R. 328 at paragraph 70, quoting Pearson, supra at 691, citing Morales, supra at 728).

Analysis

1. Threshold for engagement: person must be charged with an offence

Section 11(e) applies to “any person charged with an offence”. See the discussion under Section 11 – General to determine whether or not the person has been "charged with an offence" for the purpose of section 11.

2. Right not to be denied reasonable bail without just cause

The section 11(e) right “has two distinct components: (i) the right to ‘reasonable bail’ in terms of quantum of any monetary component and any other conditions that might be imposed; and (ii) the right not to be denied bail without ‘just cause’” (St-Cloud, supra at paragraph 27; Hall, supra at paragraph 16; Pearson, supra at paragraph 46; Antic, supra at paragraph 36).

The word "bail" must be interpreted broadly as applying to judicial interim release in general and not any particular form of interim release. It is not restricted to the actual money or other valuable security that may, in some circumstances, be deposited with the court as a condition of release. In other words, the term "bail" in section 11(e) can apply to any term of the release, such as a requirement for an undertaking to appear, a recognizance with sureties, and/or any other condition or restriction on the liberty of the accused (Pearson, supra, at paragraph 48).

(i) First component – Right to reasonable bail

“Reasonable bail” refers to the terms of the bail such as the quantum of any security and the restrictions or conditions imposed on the accused’s liberty while on judicial interim release (Pearson, supra at paragraph 46). This component of section 11(e) “protects accused persons from unreasonable terms and conditions of bail” (R. v. Zora, 2020 SCC 14, at paragraph 20). Note that “both a legislated form of release and the specific terms of release ordered by a justice or a judge can be unreasonable and, as a result, unconstitutional.” (Antic, supra at paragraphs 41-42).

In relation to terms of release, bail conditions must to be tailored to the individual risks posed by the accused (Zora, supra at paragraph 88). The Supreme Court has indicated that bail conditions are intended to be particularized standards of behavior designed to address specific risks posed by the accused regarding the grounds for detention in the Criminal Code (securing attendance in court, ensuring protection or safety of the public, or maintaining confidence in the administration of justice) and are to be imposed with restraint (Zora, supra at paragraphs 25 and 89). Thus, conditions “may ‘only be imposed to the extent that they are necessary’ to address concerns related to the statutory criteria for detention and to ensure that the accused can be released”, and “must not be imposed to change an accused person’s behaviour or to punish an accused person.” (Antic, supra at paragraph 67(j)). The Court has held that restraint is required because terms of release are limitations on the liberty of someone presumed innocent and because they create a new source of criminal liability for the accused, through the offence at section 145(3) of the Criminal Code, which may result in imprisonment (Zora, supra at paragraph 90).

In the exceptional circumstances where cash bail is ordered, “the amount should not be beyond the readily available means of the accused and his or her sureties”, it should be at a proportionate level tailored to address the concern that would otherwise warrant detention, and “the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay.” (Antic, supra at paragraph 67(i)). Additionally, the Supreme Court has indicated that the right to reasonable bail is an ongoing right; thus it is consistent with the Charter to interpret legislation as providing for the ability to review the continued appropriateness of any bail conditions originally imposed (Myers, supra).

Jurisprudence also has identified more specific requirements for reasonable bail. Conditions that may be directed at symptoms of mental illness that an accused cannot or almost certainly will not comply with, such as an abstinence requirement for an accused with an alcohol or drug addiction, have been deemed not to be reasonable (See: Zora, supra at paragraph 92 citing R. v. Omeasoo, 2013 ABPC 328 and R. v. Denny, 2015 NSPC 49). It has been held that special considerations apply when imposing bail conditions, including abstinence, on Indigenous accused such that their special and individual circumstances must be taken into account (Omeasoo, supra at paragraph 44 citing R v. D.D.P., 2012 ABQB 229 at paragraph 9). Behavioural conditions that are intended to rehabilitate or help an accused person will not be appropriate unless those conditions are necessary to address a specific risk posed by the accused (Zora, supra at paragraph 93). Further, the condition to “keep the peace and be of good behaviour” is not a required condition for bail and should be rigorously reviewed when it is proposed as a condition (Zora, supra at paragraph 94). The Supreme Court has also indicated that any condition which restricts additional Charter rights must be rigorously assessed to ensure it is justified and proportional to the risk posed by the accused (Zora, supra at paragraph at paragraph 99).

Unreasonably prolonged custody awaiting a bail hearing can give rise to a breach of section 11(e) (R. v. Zarinchang, 2010 ONCA 286, R. v. Reilly, 2019 ABCA 212, affirmed by the Supreme Court in R. v. Reilly, 2020 SCC 27). In appropriate cases the remedy for such a breach may be a stay of proceedings (Zarinchang, supra; Reilly, supra). However, neither section 503 of the Criminal Code nor the Charter requires the bail hearing to be completed within 24 hours of arrest: additional time may be needed, after the initial appearance of the accused before a justice, to prepare for a bail hearing (R. v. Dawson, 2016 ONSC 3461 at paragraphs 33, 35).

(ii) Second component – Right not to be denied bail without just cause

Whenever bail is denied, this is a departure from the basic entitlement to bail. The second branch of section 11(e) requires that any denial of bail must be for a “just cause”. Therefore, any statutory provision that allows for the pre-trial detention of an accused person (including a ground for denying bail or a “reverse onus” bail provision) is subject to review under this branch of section 11(e), for whether it amounts to a just cause for denying bail (see Pearson, supra at paragraphs 45-46; Antic, supra at paragraphs 39, 61-62).

There is “just cause” to deny bail only if two requirements are met: first, the denial of bail must occur only in a narrow set of circumstances; and second, the denial must be necessary to promote the proper functioning of the bail system and not undertaken for any purpose extraneous to the bail system (Antic, supra at paragraph 40; Pearson, supra at paragraph 48; Morales, supra at paragraph 33; R. v. Hall, supra, at paragraphs 16 and 22 per majority, and at paragraph 56 per dissent).

Narrow set of circumstances

Three grounds under which bail may be denied are outlined under section 515(10) of the Criminal Code:

  1. where detention is necessary to ensure attendance in court,
  2. where detention is necessary for public safety, considering any substantial likelihood of reoffending upon release or interference with the administration of justice, and
  3. where detention is necessary to maintain confidence in the administration of justice, considering: the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding its commission, and the potential for a lengthy prison term.

The first ground has yet to be challenged, but the second ground has been upheld under section 11(e). The likelihood that an accused would reoffend if released has been established as a part of a “just cause” for detention. Denial for reasons of likelihood of reoffending is a sufficiently narrow circumstance because bail is denied only for those with a “substantial likelihood” of committing an offence, and only where this likelihood endangers public safety. The circumstance is narrowed further by the requirement that the detention be not simply convenient, but necessary for public safety (Morales, supra at paragraph 39).

The Supreme Court has said that the third ground is a distinct ground which must not be interpreted narrowly and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes (St-Cloud, supra at paragraph 87). In determining whether detention is necessary to maintain confidence in the administration of justice the court must adopt the perspective of the “public”, that is a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case (St-Cloud, supra at paragraph 74, Hall, supra at paragraph 41). The analysis should be both retrospective and forward-looking, and take into account factors like the delay between the bail hearing and the eventual trial date (Myers, supra at paragraphs 53 – 54).

A reverse onus bail provision is “an exception to the basic entitlement to bail contained in section 11(e). Instead of requiring the prosecution to show that pre-trial detention is justified, it requires the accused to show that pre-trial detention is not justified” (Pearson, supra at paragraph 56). The reverse onus contained in section 515(6) of the Criminal Code relating to drug trafficking offences was found not to be an unjust denial of bail in Pearson because: it was a narrow exception that only applied to a small number of offences; and it did not deny bail outright, but rather would deny bail if the accused was unable to demonstrate that pre-trial detention was not justified (Pearson, supra at paragraph 59). Therefore, a reverse onus bail provision is typically defended under s. 11(e) on the basis that it is narrowly tailored to address specific situations where the ordinary presumption of granting bail would not promote the proper functioning of the bail system, and more particularly, that the current bail regime for these situations does not adequately address the risks of pre-trial recidivism and absconding.

An appellate decision on bail indicates that the presumption of innocence that underlies section 11(e) applies even in circumstances where an accused admits the factual elements of the alleged offence and the defence relies on mental disorder (R. c. Turcotte, 2014 QCCA 2190 at paragraphs 41-46).

Necessary to promote the proper functioning of the bail system

The second requirement for a denial of bail to be for a “just cause” is that it must be necessary to promote the proper functioning of the bail system and not undertaken for any purpose extraneous to the bail system (Pearson, supra at paragraph 58). Some purposes have been identified as valid to promote this functioning. The protection of public safety is a valid purpose as the bail system does not function properly if an accused interferes with the administration of justice while on bail (Morales, supra at paragraph 40).

Preventing reoffending while on bail is a valid purpose promoting the functioning of the bail system. This may be achieved through the reverse onus discussed above, either for certain offences, or for those who have previously committed offences when released on bail. Section 515(6) of the Criminal Code, which sets out those offences subject to reverse onus bail, targets offences where the risk of reoffending is high. In drug trafficking, for instance, there is a high risk of reoffending because of the lucrative nature of the market, so release on bail may lead to further criminal activities (Pearson, supra at paragraphs 66-67).

Similarly, subparagraph 515(6)(a)(i) of the Criminal Code imposes a reverse onus where the accused is charged with an indictable offence alleged to have been committed while previously released on bail in respect of another indictable offence. This has been upheld as just cause for denying bail under section 11(e), because the accused has already once violated the trust implicit in being released on bail (Morales, supra at paragraph 63).

Preventing absconding is also necessary to the functioning of the bail system. A reverse onus for bail is therefore justified for certain offences such as drug trafficking because the financial resources and level of sophistication associated with trafficking organizations increase the likelihood of an accused’s flight (Pearson, supra at paragraph 62). The reverse onus is also justified for offences such as murder, where the risk of absconding is high because of the high penalty associated with conviction (R. v. Sanchez (1999), 176 N.S.R. (2d) 52 (C.A.), at paragraph 27).

The third Criminal Code ground for which bail may be denied, where detention is necessary to maintain public confidence in the administration of justice, having regard to the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding its commission, and the potential for a lengthy prison term, has been recognized as a valid purpose promoting the proper functioning of the bail system (Hall, supra at paragraph 40, St-Cloud, supra at paragraph 72). The Supreme Court in Hall, supra held in a 5:4 decision that this does not violate section 11(e). The entire Supreme Court in Hall, supra determined that a denial of bail based “on any other just cause” represented a “standardless sweep” which conferred too broad a discretion on judges to deny bail that could not be justified under section 1 of the Charter and these words and “without limiting the generality of the foregoing” were struck from paragraph 515(10)(c) (Hall, supra at paragraph 22).

Several purposes have been deemed extraneous to the proper functioning of the bail system. The Nova Scotia Court of Appeal has identified the following: attempting to punish accused persons at the pre-trial stage, attempting to elicit guilty pleas where the pre-trial custody would exceed the sentence, and applying a reverse onus to offences where little or no incarceration is generally imposed (Sanchez, supra at paragraph 28). The dissent in Hall, supra identified provisions based on “ill-informed emotional impulses” as extraneous to the bail system (at paragraph 108). Generally, extraneous purposes are those that would allow a “standardless sweep,” or unfettered discretion to restrict bail (Morales, supra at paragraph 24).

3. Bail pending appeal

The section 11(e) right no longer applies to the person once a conviction has been entered, even if the conviction is under appeal. The reason is that the presumption of innocence, which is the basis for the section 11(e) right, has been displaced by the conviction (R. v. Oland, supra at paragraph 35; see also R. v. Branco (1993), 35 B.C.A.C. 201, at paragraph 17, application for leave to appeal denied, [1994] S.C.C.A. No. 134; R. v. Farinacci (1993), 67 O.A.C. 197 (C.A.), at paragraph 7).

Even if section 11(e) is inapplicable to bail pending appeal, section 7 of the Charter may nevertheless confer some degree of protection for bail at this stage. Presumably, statutory provisions for bail pending appeal affect the residual liberty of the offender, and therefore must be in accordance with any relevant principles of fundamental justice. Given that the presumption of innocence no longer applies at appeal, the constitutional standards applicable to bail at this stage will be different than those that apply prior to trial (Farinacci, supra; Khadr v. Bowden Institution (Warden), 2015 ABQB 261).

Howeve, it should be noted the section 7 Charter implications of bail pending appeal have not been addressed by the Supreme Court. The Supreme Court’s 2017 decision in Oland, which addressed the interpretation and application of the Criminal Code’s provisions for bail pending appeal, explicitly indicated that no Charter challenge was before the Court (see paragraph 60).

Where a conviction has been set aside and a new trial ordered by an appellate court, section 11(e) is once again applicable (R. v. Sutherland, [1994] S.J. No 242 (C.A.) (QL), at paragraph 15).

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