Patrick J Ducharme

Patrick J Ducharme

Part XVI of the Code deals with compelling the appearance of an accused and interim judicial release. It also applies to the detention and release of young persons, except to the extent that the provisions may be inconsistent with the Youth Criminal Justice Act [the “YCJA”].
The YCJA provides additional principles governing the detention of young persons. For example, the YCJA codifies the earlier case law that held that a young person must not be detained in custody as a substitute for appropriate child protection, mental health or other social measures.
Continue reading “Young Persons and Bail”

Patrick Ducharme

This principle of restraint is reflected in the new amendments of 2019. The primary consideration in deciding release and bail conditions required for the police and our courts is to provide the accused with the earliest reasonable release on the least strict conditions that are deemed possible. In addition, they are to take special consideration of vulnerable members of the population including indigenous persons. With the amendments to sections 498 and 499 of the Code all police officers now have the power to release a person in custody.
Continue reading “Principle of Restraint”

Patrick Ducharme

Subsection 11(e) of the Charter provides that any person charged with an offence has the right not to be denied reasonable bail without just cause. The denial of bail must occur only in a narrow set of circumstances and the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system.
Continue reading “The Charter: Constitutional Right to Bail”

Patrick J Ducharme

In certain circumstances the accused bears the onus of establishing, upon being given a reasonable opportunity to do so, why his detention in custody is not justified.

Subsection 515(6) provides that a Justice shall order that the accused be detained in custody until he is dealt with according to law, unless he shows cause that his detention is not justified in the following circumstances:
Continue reading “Reverse Onus Bail Hearings”

Patrick Ducharme

It is inappropriate to fix the amount of the cash deposit as some portion of the amount still unrecovered (e.g. if the accused is charged with robbery of a large amount of money) or to fix the amount so high that it amounts effectively a detention order.1 Subsection 515(2)(d) that appears to require the consent of the prosecutor before a cash bail can be ordered violates subsection 11(e) of the Charter and should be read down to exclude these words.
Continue reading “Cash Bail”

Patrick Ducharme

Subsection 11(e) of the Charter provides that reasonable bail is a constitutionally protected right. In an unreported decision of the Ontario Superior Court of Justice, Justice Joseph Quinn in R. v. Benic decided that the practice of remanding accused persons for greater than three days without the consent of the accused was an infringement of subsection 11(e) of the Charter as well as a breach of the mandatory provisions of subsection 516(1) of the Code and he ordered that the accused be given an immediate bail hearing in accordance with subsection 516(1).
Continue reading “The Right to Bail Expeditiously and Burden of Proof”

Patrick J Ducharme

In R. v. St-Cloud the accused was charged with aggravated assault. The incident giving rise to the charge was captured on a video recording system. The video demonstrated that the accused and two others assaulted a bus driver. In addition, there was eyewitness testimony. It was inarguable at the time of the bail hearing that the Crown’s case was strong since the incident was videotaped and the videotape was augmented by eyewitness testimony.
Continue reading “R. v. St-Cloud and the Tertiary Ground of Bail”

Patrick Ducharme

R. v. Antic re-iterated that the right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. This enlightened system guarantees the right to reasonable bail. The court stated that except for certain exceptions, an unconditional release on an undertaking is the default position when granting release.
Continue reading “Release is Default Position”

Patrick Ducharme

Release of the accused is the “fallback position.” Subsection 515(1) provides that the court must order the release of the accused on his undertaking without conditions unless the prosecutor shows cause why the detention of the accused in custody is justified or why an order under any other provision of the subsection should not be made, or, unless a plea of guilty is entered by the accused. The effect of this provision is to create a presumption that the least onerous type of release should be considered first, and the court continues to consider each of the various forms of release until eventually, the final resort is to detain the accused. Detention should only occur if absolutely no form of release is appropriate. Continue reading “From “Least Onerous” Up the Ladder”

Patrick J Ducharme

The three grounds of detention have equal weight. Reference to the primary, secondary, and tertiary grounds of detention should not lead one to the mistaken impression that one is given higher priority over the other. The prosecutor generally has the onus to justify an accused’s detention in all cases, except where the Code expressly provides otherwise. In addition to the reverse onus placed upon the accused created by section 522 for offences listed in section 469, subsection 515(6) outlines the specific instances where the onus is reversed to the accused even for non-469 offences.
Continue reading “Grounds of Detention and Reverse Onus”