Ladder Principle/Bail Flashcards
The bail court uses what approach?
The bail court uses an approach called the ladder principle.
At the bottom of the ladder
The promise to appear
At the top of the ladder
Bail program
Each step up the ladder
restricts your freedom more than the last.
When deciding what step on the ladder is appropriate, the court will consider 3 things:
the circumstances of the alleged offence
whether you were already on a type of release, and
whether you have failed to comply with previous releases.
The court must only restrict your freedom as much as it must to satisfy the risks of letting you out on bail. These risks are referred to as
Grounds for detention
The Crown considers 3 grounds of detention:
Primary
Secondary
Tertiary
You may not go to court when required.
You may commit another crime, or the public may not be safe while you’re out on bail.
Because of the circumstances of your offence, the public might feel that the justice system is not working if you’re let out of
To have a reason not to let you out on bail, the Crown only needs to be concerned about
one of the grounds of detention
What is bail and what is its purpose?
Bail is when a person charged with a criminal offence is released from custody while awaiting their trial. An individual can be released with or without conditions that they must follow during their release. Not everyone who is charged with a crime receives bail.
Today, the law of bail, as outlined in the Criminal Code, has three main purposes:
to ensure those charged with an offence appear in court when required
to maintain public safety by assessing and managing any potential risks if an accused person is released
to maintain the public’s confidence in the justice system
What the Charter of Rights and Freedoms says about bail
Under the Charter, all accused persons have the right to liberty and are presumed innocent until they are proven guilty. This means that an individual charged with an offence has the right not to be denied reasonable bail without just cause.
In the Antic (2017) and Zora (2020) decisions, the SCC ruled that
for most alleged crimes, release on bail at the earliest reasonable opportunity with minimal conditions is the default position.
Before making any bail decision, police and courts must take into account whether the accused person
Indigenous or belongs to a vulnerable group that is overrepresented in the criminal justice system and faces disadvantages in obtaining bail due to systemic discrimination (for example, members of Black and racialized communities).
The burden of proof or “onus” in bail proceedings
he general rule is that when a Crown prosecutor seeks the detention (denied bail) of an accused person, they must demonstrate to the Court that there is just cause (sufficient reasons) to detain the accused.
This is referred to as the “onus”, meaning that the Crown
has the responsibility to show that the accused should not be granted bail. The Crown is required to show cause under one of the three grounds mentioned above for an accused to be denied bail.
A reverse onus occurs when
the accused is charged with offences that involve serious conduct and that are of a particular concern for the public, such as:
Examples of reverse onus offences
murder or attempted murder
an indictable offence (the most serious category of criminal offence, such as aggravated assault or robbery) committed while they were released on bail for another indictable offence
an indictable offence, if the accused is not ordinarily resident in Canada
drug trafficking, importing or exporting
weapons trafficking, possession of weapons for the purpose of trafficking, unauthorized import/export of a firearm or weapon, discharging a firearm with intent or while being reckless
unlawful possession of a loaded prohibited or restricted firearm, breaking and entering to steal a firearm, robbery to steal a firearm or making an automatic firearm
offences alleged to have been committed with a firearm, such as sexual assault (while threatening a third party or while causing bodily harm), aggravated sexual assault, kidnapping, hostage taking, robbery or extortion
indictable offences alleged to involve firearms or other weapons where the accused is subject to a weapons prohibition order
offences relating to criminal organizations and terrorism
certain types of re-offending, such as where the accused is charged with failing to attend court or to comply with a previous bail order or summons
an offence involving violence against an intimate partner where the accused has a prior conviction or discharge for an offence involving violence against an intimate partner
a serious offence (punishable by 10 years imprisonment or more) involving violence (used, threatened or attempted) and the use of a weapon where the accused was previously convicted (within the past five years) of an offence with the same criteria
The “ladder principle” is
longstanding principle of bail which has been repeatedly recognized by the courts, including the Supreme Court of Canada. It is an approach that guides how a judge or justice determines the level of restrictions that should be placed on an accused person if they are released while awaiting trial.
Why were changes made to our bail system in 2019
These Criminal Code reforms were designed to:
streamline the bail process by increasing the types of conditions police can impose on an accused to avoid sending cases to court where this is not necessary
provide guidance to police on the need to impose reasonable, relevant and necessary conditions that are related to the offence and consistent with the principles of bail and the Charter
codify a “principle of restraint” that exists in common law for police and courts to ensure that release at the earliest opportunity is favoured over detention, where appropriate, and that only reasonable bail conditions are imposed on an accused, having regard to public safety
clarify that circumstances of Indigenous accused and accused from vulnerable overrepresented populations, such as Black communities, should be considered at bail in order to address the disproportionate impacts that the bail system has on these populations
addressing intimate partner violence and repeat offenders
created a reverse onus at bail for accused charged with a violent offence involving an intimate partner, where they have a prior conviction for an offence involving violence against an intimate partner
require courts to consider:
whether the accused is charged with an offence in which violence was used, threatened or attempted against their intimate partner
whether the accused has been previously convicted of a criminal offence
