The History and Development of the Bail Process in Canada

The right not to be denied reasonable bail without just cause is an essential element of a progressive criminal justice system. It reflects the presumption of innocence at the pre-trial stage and protects the liberty of an accused person. The Supreme Court of Canada in R. v. Antic [2017] 1 S.C.R. 509 reviewed the history bail and further developed the law in this country.

Pre 1972

Originally developed as a highly discretionary matter, the sole purpose of bail was to ensure that an accused person who was released on bail would attend their trials. There was no guidance on the imposition of release conditions. Prior to 1972, there were three forms of release:

(a) release with sufficient sureties upon entering into a recognizance,

(b) release upon making a cash deposit, and

(c) release upon entering into a recognizance without a deposit: S.C. 1953-54, c. 51, ss. 451 and 463(3).

These forms of release were not ranked in any way, which meant a judge could impose any of them in any given case.

The 1972 Bail Reform Act (the “1972 Act”)

The 1972 Act attempted to address the concerns that placed strict limits on cash bail. It also set out possible forms of release, which were ordered from the least onerous to the most onerous. The 1972 Act recognized that a judge must not order more onerous forms of release unless the Crown shows why a less onerous form is inappropriate – a proposition now reflected under section 515 of the Criminal Code of Canada (the “Code”)and The Canadian Charter of Rights and Freedoms (the “Charter”).

The Code and the Charter

In 1982, the enactment of the Charter transformed the statutory right to bail into a constitutional right. Section 11(e) of the Charter guarantees that “any person charged with an offence has the right not to be denied reasonable bail without just cause.”

The expression “just cause” is used in two contexts regarding bail. First, in the constitutional context – where an accused has a constitutional entitlement to be granted bail unless there is “just cause” to deny it. Second, the statutory grounds, which are enumerated in section 515(10) of the Code, outlines “just cause” as being: a flight risk, public safety, and public confidence in the administration of justice.

R. v. Antic [2017] 1 S.C.R. 509 and R. v. Zora [2020] 2 SCR 3

The Court in Antic further discussed the law pertaining to bail and how it should be applied in Canada. Justice Wagner highlighted the need for public protection and the presumption of innocence of an accused person.  He considered the principle of restraint. More specifically, what restraint mechanisms can be placed on an accused person to ensure the public is protected while also adhering to the presumption of innocence. The following guiding principles apply to all cases:

1. The presumption of innocence;
2. The principle of restraint;
3. The necessity for clear and compelling reasons to deny bail; and,
4. The principle of reasonable alternatives to bail,

The Supreme Court of Canada in R. v. Zora [2020] 2 SCR 3 re-affirmed the principles discussed in Antic and highlight the requirement that release on bail at the earliest reasonable opportunity with minimal conditions is the default position.

Discussion

In Canada, the bail process has been developed over the years and is currently reflected in the cases of Antic and Zora. The core aspect revealed through the progression of the law seems to recognize that for the democratic process to function property, there must be a clear emphasis on the presumption of innocence. In other words, if the State is alleging that an accused person has committed it a crime, it must be proven (by the State) that the accused person is guilty, and until such time, it is presumed that the accused person is innocent, including during the bail process.

This is not intended as legal advice, please consult a professional. Check out our blogs if you would like to learn more!