Best Practices where there is Family Violence (Criminal Law Perspective)

Appendix A: Case Law Tool Kit for Defence Counsel and Duty Counsel

The grant or denial of bail engages not only s. 11(e) of the Charter, which guarantees an accused the right not to be denied reasonable bail without just cause, but also the accused person’s liberty and security of the person interests. Bail is not a privilege. Judicial interim release should only be withheld where it is necessary. These principles apply in cases involving domestic violence as they do in cases involving other types of offences. The following cases articulate the relevant principles and may be useful for defence counsel and duty counsel at a contested bail hearing.

General Principles

R. v. Morales, [1992] 3 S.C.R. 711 at para. 11:

The Supreme Court describes Part XVI of the Code as “a liberal and enlightened system of pre-trial release under which an accused must normally be released.”

R. v. Hall, [2002] 3 S.C.R. 309

At the heart of a free and democratic society is the liberty of its subjects.  Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

Individualized Approach to Bail

R. v. Brooks (2001) 153 C.C.C. (3d) 533 (Ont. S.C.J.):

Crown counsel are expected to exercise discretion to consent to bail in appropriate cases and to oppose release where justified. That discretion must be informed, fairly exercised, and respectful of prevailing jurisprudential authorities. Opposing bail in every case, or without exception where a particular crime is charged, or because of a victim's wishes without regard to individual liberty concerns of the arrestee, derogates from the prosecutor's role as a minister of justice and as a guardian of the civil rights of all persons.

R. v. J.V. [2002] O.J. No. 1027 (S.C.J.):

As a quasi-judicial officer, Crown counsel, in any adversarial proceeding, is duty-bound to protect the legal and constitutional rights of the arrested person. To this end, the prosecutor's exercise of discretionary judgment on bail issues cannot be driven by slavish adherence to zero tolerance policies or the recommendations of high profile coroner's inquest recommendations. This would amount to the exercise of no discretion at all and guarantee arbitrariness on the facts of certain cases.

Bail is not precluded for any type of offence, including domestic violence

R. v. Taylor, [2005] O.J. No. 1789 (S.C.J.):

This decision contains helpful passages which make clear that the Crown should not, as a matter of course, oppose release in every case involving allegations of domestic violence.

While prosecutors in domestic assault cases no doubt face challenges that are less frequently encountered in other cases, and while they may need to be particularly adversarial to protect the public interest, they are still required, in my opinion, to be fair and to act with regard to the accused's liberty interests as well.

R. v. A.B., [2006] O.J. No. 394 (S.C.J.):

The granting of bail must be assessed on a case-by-case basis, and an accused person should be released if none of the grounds set out in s. 515(10) is satisfied. The reasonable person would understand that there are no offences for which bail is automatically prohibited and that persons charged with offences as serious as sexual assault and murder are often granted bail. Equally important, she or he would understand that the vast majority of those who are charged with criminal offences are granted bail and do not abscond or commit further offences while on release.