Changes to bail in Canada make it fairer for those with low income: Reasonable Doubt

July 12, 2017
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From NOW Magazine's Reasonable Doubt column: Without a doubt, a bail hearing is one of the most important events in any criminal proceeding. As noted in my previous article on the challenges with delayed trial dates, it isn't common for an accused person to wait a year or more for their trial.

If they are denied bail, they will wait that entire period of time in jail. This can create pressure on individuals to accept a plea deal (and the conviction that goes along with it) in order to secure an early release from jail. Those who are in jail also face significant challenges in preparing for their trial – access to a lawyer and the materials required to prepare for trial are far more limited for those in custody than those who are are on bail.

For all these reasons, it came as welcome news to criminal defence lawyers across the country when the Supreme Court of Canada issued its decision in R v Antic last month.

Kevin Antic was charged with drug and firearms offences. He lost his bail hearing and so he applied to the Superior Court for a review of his detention order on two separate occasions. He succeeded on his second attempt and was released. The Crown appealed the decision to the Supreme Court of Canada. Writing for the majority, Justice Wagner agreed that Antic should be released, although for different reasons than those arrived at by the Superior Court.

In the course of reviewing the Superior Court's decision, Justice Wagner reaffirmed a principle that is easily forgotten in a bail hearing: the starting position of a judge or Justice of the Peace (both can decide bail) at a bail hearing should be an unconditional release. It is only as the circumstances of the accused and the case require it that conditions and financial requirements should be added. Any of these additional restrictions on a bail order must be made in response to the case before the court, and not simply because of what is common practice.

Read more: Changes to bail in Canada make it fairer for those with low income: Reasonable Doubt