Patrick J Ducharme

Patrick J Ducharme

The Justice is given the power to delay any broadcast or publication of the bail proceedings until either the end of the preliminary inquiry if the accused is discharged, or the end of the trial if he is subject to an order of committal to trial. If the accused is the one who requests a non-publication order the Justice is required to make the order. If the prosecutor requests the order of non-publication the Justice has discretion as to whether to grant the order. As a matter of practice an order of non-publication of the proceedings is ordered without exception.
Continue reading “Non-Publication”

Patrick Ducharme

The strict rules of evidence required at a trial are not in place at a bail hearing.1 The Code provisions permit the presiding Justice to make inquiries that the Justice considers desirable. The inquiries do not have to be in the form of evidence under oath. There are not many limitations to the inquiries except that an accused that testifies at a bail hearing may not be questioned about the offence he faces, unless defence counsel poses a question or questions to the accused about that offence.
Continue reading “Evidence at the Hearing”

Patrick Ducharme

For the purposes of bail accused persons are divided into two groups: those that are charged with an offence listed in section 469, and those that are charged with any other offence. Only a Judge of the Superior Court of Justice has the power to release a person charged with an offence listed in section 469 of the Code.1 Rule 20 of the Criminal Proceedings Rules apply. The accused must apply for release. The release hearing does not occur automatically. The procedure used is the same as that required for a normal bail review pursuant to sections 520 or 521 of the Code. A notice of application must be served on the prosecutor together with an affidavit from the accused. The affidavit of the accused must comply with Rule 20.05. To have the accused present at the bail hearing the applicant must obtain a Judge’s order for his attendance.
Continue reading “Two Procedures for bail”

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”