Bail Flashcards
Bail is not:
- Not to be used as a form of punishment
2. Only used to address specific grounds of concerns
What is the starting presumption in bail?
That the accused will be out of custody before trial (presumption of innocence)
What is the bail best practice?
Best practice is to use an affidavit of the surety and use out of court approval process
Forms of release:
- Lowest: 515(1) - Other than 469 - release on undertaking without conditions unless Cr shows cause why detention justified or another order made
- Undertaking with or without conditions
- Recognizance without sureties, pledge of money or conditions
- Surety recognizance with pledge of money - on conditions - no deposits
- Cash deposit recognizance - no surety - with conditions - with crown consent
- If not ordinary resident of Ontario or lives more than 200km away then with or without surety and cash bail
Optional conditions
- Report
- Remain within specified territorial jurisdiction
- Notify change of address
- No communication with victim and witness
- Deposit passport
- Comply with any other condition necessary to ensure the safety of the victim or witness
- Comply with other reasonable conditions
Primary Grounds factors
Factors:
- Seriousness of offence
- Record of compliance with court orders
- Record of failing to appear at court
- Record for escaping lawful custody
- Outstanding warrants
- Outstanding immigration orders/deportation
- Roots in the community
- Reasons to flee
Primary ground purpose
Ensure that the accused attends court
Secondary ground purpose
Necessary for the protection/safety of the public, victim or witness having regard for all of the circumstances
Includes likelihood that Accused will, if released from custody, commit a criminal offence of interfere with the administration of justice
Secondary ground standard
High standard
Must be substantial likelihood that accused will commit further offences
Morales [1992] 3 SCR 711
Secondary Ground factors re: protection and safety of the public
- Victim is under 18
- Outstanding warrants
- Criminal record
- Offence involves weapons, esp firearms
- Compliance with court orders
- Member of gang or criminal organization
- Already on probation or release
- Think accused will interfere with the administration of justice
Secondary ground factors re: risk of reoffending
- Nature of offence (violence, brutality)
- Circumstances of offence - events prior to and subsequent to offence
- Likelihood of conviction
- Degree of participation in offence
- Relationship between accused and victim
- Personal circumstances of accused
- Criminal record
- Mental state
- Conduct prior to alleged offence
Tertiary ground purpose
Maintain confidence in the administration of justice
Tertiary ground factors
- Strength of the crown’s case
- Gravity of the offence
- Circumstances surrounding commission of the offence
- Accused’s liability to serve lengthy imprisonment
- Significant harm to victim
- Circumstances of the offender
- Circumstances and nature of the offence
Accused’s liability to serve lengthy imprisonment - definition
- Not residual to other two grounds - not limited to residual or rare circumstances: R v St. Cloud , [2015] SCJ No 27
Definition of ‘public’ when assessing tertiary grounds
A reasonable member of the community who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case (St. Cloud)
Circumstances of the offender to be considered when assessing Tertiary grounds
- Criminal record
- Concern accused will interfere with the administration of justice
- Outstanding charges
- Need and availability of supervision of accused
- Ties to the community
- Availability of community resources
- Mental health
- If accused is of indigenous heritage
Circumstances and nature of the offence to be considered when assessing Tertiary grounds
- Actual violence or threat of violence
- Serious BH reasonably foreseeable
- Actual harm to victim or community
- Violation of sexual integrity of victim
5, Weapons used or threatened - Intention and attempt to cause substantial property damage
- Offence against administration of justice
- Domestic violence
- Interest in the community
Reverse onus section
515 (6) - accused must show why his detention is not justified
When reverse onus
- Indictable offence while accused is on release for an indictable offence
- Indictable offence for a criminal organization
- Indictable offence - terrorism
- Security of Information Act
- Weapons trafficking/unauthorized transfer of weapons (s. 99, s. 100, s.103)
- Weapons offence while prohibited
- Designated offence with firearm
- Indictable offence where not an ordinary resident
- CDSA s. 5-7 trafficking/importing and exporting/production of substance
- FTA or breach of recognizance or undertaking while on release pending trial
- 524 arrest
- 469
What is a designated offence with a firearm
- Robbery
- Attempt murder
- Sexual assault
- Aggravated sexual assault
- Extortion
- Kidnapping
- Take hostage
- Discharge with intent
What is the crown burden on a reverse onus bail?
Balance of probabilities
If high risk offender up for bail
Get the file
Obligations to CAS
Reasonable suspicion that kids may be in need of protection
Ladder Principle
Does not apply to reverse onus
R v George, 2018 ONCA 314
Tunny does not apply
R v Sakhiyar, 2018 OJ No 4999 (SCJ)
- Parliament made no attempt to reconcile the reverse onus provision with s. 515(3)
R v Tunney, 2018 ONSC 961
Bifurcated hearing on Crown onus situation
Hybrid offences in bail
- Inherently indictable even if Crown elects summarily (election does not change character of offence) R v Taylor, 2001 SCJ
Conditions in firearms offences
- Not to apply for a licence, registration or authorization under firearms act
- Surrender within 24 hours to police any license, registration certificate or authorization enabling the possession/acquisition of a firearm/weapon
- No communication with co-accused
- House arrest - must present himself within 3 minutes
YCJA 29(3)
Youth bail is always a crown onus
What is the standard in youth bail matters?
Balance of probabilities
CAS juristiction
- CAS must attend if youth is a ward
- If youth is 12-15 and no parent attends and not ward of CAS then CAS must be notified
- If youth is 16-17, and no parent attends , and not ward of CAS then CAS lacks jurisdiction
Threshold for detention order - YCJA 29(20
- Serious offence - indictable offence, max punishment 5+ years
- History that indicates a pattern
What is considered a serious offence to warrant a detention order under the YCJA
- Robbery
- Assault
- Firearms and Weapons
- Drug trafficking
- Break and enter
What are offences that would not warrant a detention order under the YCJA
- Theft
- Mischief under
- FTA
- FTC recog
- FTC with disposition
- Cause disturbance
What constitutes ‘history that indicates a pattern’?
3 prior incidents of outstanding charges, guilt, or both unless offences are so similar that pattern may be found in only two prior findings of guilt
Primary ground under the YCJA
May only issue detention on primary grounds where there is a substantial likelihood that they will not appear at court
Secondary ground under YCJA
- Only where detention necessary for protection/safety of public having regard to all circumstances including a substantial likelihood that YO will commit a serious offence
- Strength of crown’s case is not a central role - more about Youth and whether potential behavior can be predicted
Tertiary grounds under YCJA
- Only to be considered when detention not justified under first or second grounds
- Court must be satisfied that the youth is charged with a serious offence and that there are exceptional circumstances that warrant detention (where circumstances of crime so extreme that anything less than custody would fail to reflect societal values)
What must the court determine when assessing a Youth’s bail plan?
Whether the proposed plan of release can meet the courts concerns:
- Reduce to a level below substantial the likelihood that youth would not appear in court
- Offer adequate protection to the public from risk youth might present
- Maintains confidence in the administration of justice
In order for the Court to inquire as to availability of a responsible person for alternative to detention in youth matters what must happen?
- Both the responsible person and youth must agree
2. The responsible person must undertake in writing and ensure that the youth complies and attends court
What is the max custody for the failure of a Responsible Person in youth bail matters?
Max 2 years
What are the obligations on a Responsible Person in youth bail matters?
- Closer level of supervision than a surety
2. Statutory obligations on responsible person are higher
What happens if a Responsible Person fails in a Youth matter?
The court must address the possibility of another responsible person
Responsible person vs surety
A surety has a pledge of money while a responsible person may be willing to care for the youth but not put funds on the line
Qualities of a good surety or responsible person
Knowledge and familiarity with the Youth’s:
- Family
- Background
- Neighbourhood
- Friends
- Attendance at school
- Learning issues
- Mental health or physical issues
- Physical health
- Who he loves and respects - who loves him
- Interests
- Life before arrest
- What supervision plan he is likely to accept
- How he responds to supervision
- How long the person and youth have known each other
- How much interaction they have had with proposed person
- Whether the youth will communicate openly and honestly with the person
S. 28 of the YCJA
Except where they are inconsistent with the YCJA, the provisions of part 16 of the CC apply to detention and release of YOs
Why is reference to the CC unnecessary and inappropriate in youth matters?
References to the CC generally unnecessary and arguable inappropriate given the different principles of justice and values underlying the two statutes
s. 13(1) YCJA and 38(3) Courts of Justice Act
Equal OCJ youth court
If Youth is charged with an offences under 469 then what should happen at the bail stage?
- Youth must be released by a judge
- Should he heard in OCJ unless youth has already elected mode of trial to SCJ (the SCJ then is deemed to be a youth justice court)
Detention is not s substitute for:
Child welfare
