A call for change in bail

It is an undeniable fact that bail courts in Ontario are in crisis.

 

What seems to be becoming even clearer is that no amount of attention to spotlight the issues is enough to fix them.

The main issue is that what has become the status quo for bail court procedure is not grounded in law but rather seems to be an exercise in avoiding liability for the decisions that are made by the increasingly risk-averse players in the criminal justice system.

The law on bail is clear: In a Crown onus situation, where there is a presumption of release, the default position is a release on an undertaking without conditions, with the burden on the Crown to show cause why a more onerous release — or a detention order — should be imposed by the court.

Despite the law, however, it has become commonplace for the Crown to make its bail position contingent on defence evidence in bail court — demonstrated by the Crown asking to hear from the proposed surety before formulating its position on bail — and for bail courts to expect that the defence will call evidence on Crown onus hearings to justify release.

While this is arguably a reversal of the onus and thus an error of law, it has become the status quo for how our bail courts operate in Ontario.

This has led to unnecessarily lengthy bail hearings with extensive cross-examination of sureties and to the Supreme Court of Canada declaring in R. v. Antic that the way we have been doing bail is wrong and needs to change.   

What exacerbates the problem is that those of us who work in the trenches of the criminal justice system are all responsible for the situation we have created and are guilty of embracing the status quo.

This state of affairs is thus similar to the “culture of complacency” the Supreme Court referred to in its seminal decision on delay in 2016 in R. v. Jordan.

And much like the need for structural and procedural changes that the court spoke about in Jordan, the same is needed in the bail context.

So while it is a noble feat to enact new measures to help ensure bail courts operate faster and fairer, nothing will change until and unless there is a transformation in the procedure we use in bail court. 

Given the law on bail outlined above, on a Crown onus bail hearing, the Crown should be responsible for formulating and communicating its position on bail absent any information and/or evidence from the defence.

Practically speaking, this means the Crown would relay its position to the court, along with any other information it wants the court to consider — such as the synopsis, show cause notes and criminal record — to meet its onus.

The defence can then make submissions about the Crown’s case, the law on bail and potentially about the plan it is proposing, depending on the Crown’s position, and ask for a ruling from the court on whether or not the Crown has met its onus regarding detention first, if being sought, and second, regarding the form of release sought. Then, for example, if the court finds that the Crown has met its onus regarding a surety bail, the court can move to the surety approval process if a surety is present. 

It is important to note that the question of whether the accused will be detained or released is a separate issue to be decided from the form and conditions of the release, if ordered.

As such, if the Crown and defence agree there should be a release but disagree as to the form of the release prior to the matter being addressed in court, it is not appropriate for the Crown, in court, to ask that the accused be detained.

Further, given the ample case law that sureties need not testify in court in order to be approved, there is no reason that bail hearings cannot proceed via submissions only without viva voce evidence being called.

While this may seem a significant departure from our current procedure, it is analogous to what happens at trial where it is the sole responsibility of the Crown to call evidence to meet its burden of proof.

Due to the culture of complacency, however, what has instead been happening in our bail courts is analogous to the Crown at trial indicating to the court that it may end up not proceeding with the charge but will make that determination after it has heard defence evidence. Just as this cannot be allowed to happen at trial, so, too, it should be banned in bail hearings. If implemented, this procedure has the potential to significantly cut down delays in our bail courts.

Without requiring defence evidence to be called on every hearing and having the Justice make a decision solely on the basis of submissions, bail hearings could be completed in significantly less time than they currently take.

This procedure could also eliminate the need for adjournments to secure the attendance of a surety in cases where the court finds the Crown has not met its onus for a surety release.

While this article has focused on Crown onus cases, a similarly expedited procedure can be developed for reverse-onus cases, with minor adjustments. Drastic as it may seem, it is time to heed the call of the Supreme Court of Canada and actually do something to fix our broken bail system.