A New Direction for Bail Releases
The Supreme Court of Canada in it’s decision R v St-Cloud, 2015 SCC 27 has decided that detaining an accused person under s. 515(10)(c) of the Criminal Code is no longer only possible in exceptional and rare circumstances.
S. 515(10)(c) reads that an accused will be detained and not entitled to judicial interim release where detention is necessary to maintain confidence in the administration of justice. S 515(10)(a) enable the courts to detain an accused pre-trial where doing so is necessary to ensure the accused’s attendance in court, and is often referred to as the primary ground. The secondary ground in s. 515(10)(b) allows for pre-trial detention where doing so is for the protection or safety of the public. Prior to St-Cloud, the tertiary ground expressed under s. 515(10)(c) allowed for pre-trial custody in exceptional circumstances where the crime alleged was heinous, and the evidence against the accused overwhelming. It was often treated as a residual ground, where the primary and secondary did not support detention, and some courts took into consideration whether the crime had been unsolved or unexplained before detaining under the tertiary ground. In light of the Supreme Court’s new decision, the tertiary ground is it’s own distinctive one, is not limited to rare cases and most significantly, now whether the crime alleged in unexplained is not at all a factor under s. 515(10)(c).
St-Cloud gives four factors to consider in assessing judicial interim release under the tertiary grounds: the strength of the crown’s case, the gravity of the offence as based on the maximum and minimum sentences it carries, the surrounding circumstances including the use of firearms, and whether the accused is liable for a lengthy term of imprisonment. These factors are not exhaustive; they leave the deciding courts room to consider all other circumstances. Even so, any consideration must be guided by the perspective of the public and whether their confidence in the administration of justice may be undermined. The reason these changes to the tertiary ground appear problematic is because they create a greater degree of uncertainty about an accused person’s likelihood of being released on bail. The likelihood of detention under the primary and secondary ground can usually be ascertained depending on whether a person has a compelling release plan, employment, treatment for addictions, and so on. An accused individual who is adamant about release can subject themselves to strict curfew conditions, or relinquish their travel documents. In short, the accused can take steps to diminish the possibility of detention under the primary and secondary grounds. However if the tertiary ground gives leave for the courts to consider all the circumstances and pay particular attention to the perception of the public, it becomes progressively more difficult for an accused to gage the likelihood of release and determine exactly what steps they need to take. Perhaps this lack of foreseeability will become clearer with time and with more jurisprudence surrounding detention under s. 515(10)(c) but for the time being, a structure whereby detention under the tertiary ground is normal might negatively effect the presumption of innocence that ought to be granted to those not yet convicted.