A Broken Bail System in Canada due to a Crown/Judicial Culture of Risk Aversion through an excessive use of Sureties: In Regina v. Tunney, 2018 ONSC 961, the Ontario Superior Court of Justice at a bail review considered Crown-onus bail hearings and held as follows:

Published On: Mar 03,2018


The Superior Court of Ontario, reviewed the viability of Section 520 of the Criminal Code of Canada (the “Code”) against the principles laid out by the Supreme Court of Canada (“SCC”) in Regina v. Antic, infra.  Tunney is a critical bail review decision by Justice Joseph Di Luca of the Ontario Superior Court of Justice.  Mr. Tunney filed an application to review his conditions of his bail order that was levied against him as a condition precedent for his release.  One of the conditions involved the use of a a surety and conditions.  Procedurally, the initial application for judicial interim release placed the onus on the Crown (“Crown onus”).   Justice Di Luca of the Superior Court found that the Justice of the Peace erred by: (a) in failing to analyze and provide reasons why lesser forms of release were insufficient in the circumstances; (b) in refusing defence counsel’s request for a bifurcated hearing where the accused would need to call his proposed surety once the court determined that surety release was appropriate; (c) in making comments that came dangerously close to placing a de facto reverse onus on the accused to call evidence to justify his release in a Crown onus bail.

Justice Di Luca held that Regina v. Antic, 2017 SCC 27 is not simply a case that “stands on its own” or can be distinguished on its facts.  The principles of stare decisis applies; and as a binding precedent, Antic, supra, must be followed.  Thus, a surety release should only be considered where all lesser forms of release fail to satisfy concerns raised by the evidence. This flexible approach can be used in the bail process when it comes to surety approval.  As a matter of best practices, it can and should often be done outside court using sworn affidavits or questionnaires.  The final determination of a proposed surety’s suitability remains a judicial function and it is up to the presiding justice to determine whether viva voce evidence is needed.  The defence should be free to argue that a bifurcated process is appropriate in any given case.  This case references the recent studies on bail and the Bail Directive in the Ontario Crown Prosecution Manual.
  1. Canada’s bail system is “broken,” in part due to “culture of risk aversion”; and an over-reliance on surety release (at paras. 29-30).
  2. The Supreme Court of Canada’s decision in Regina v. Antic, 2017 SCC 27 — which discourages over-reliance on sureties and requires procedural protections for accused persons at bail hearings — is binding on bail courts. It cannot be distinguished and justice-system participants must follow its “clear message [to] return to the first principles of bail, both as a matter of law and as a matter of practice” (at paras. 36, 45-46). The court held that, “We need to do things differently” (at para. 57).
  3. The form of release and the suitability of a surety (if one is necessary) must be kept analytically distinct. Requiring evidence of surety suitability at the bail hearing risks creating a reverse onus on the defence to justify release. Instead, in most cases the court may use a bifurcated procedure in which the form of release is determined first and, if a surety is necessary, the surety is assessed afterward, either in or out of court (at paras. 51-53). Where a surety is necessary but the proposed surety is inadequate, bail would be “set but not met.”
  4. Even if a surety release is the “safest” or “best” option for release, this is not the test in the Criminal Code. The least restrictive form of release must be ordered (at para. 46).
  5. Even where a surety is necessary, there is no requirement for the proposed surety to testify in court and he or she is not on trial (at paras. 39-41). The absence of a record of bail supervision or compliance does not mean the surety must be assessed in court (at para. 54). Nor can the Crown require viva voce evidence from a surety (at para. 55). Out-of-court assessment procedures free up scarce judicial resources and reduce delay (at paras. 39-40).
  6. Language suggesting the possibility of detention in a Crown-onus bail hearing where the Crown is not seeking detention should be avoided. It is strongly indicative that the court is imposing a reverse onus on the defence (at para. 47); and
  7. The Crown must take a reasonable and sustained position on the “bail ladder” that it is prepared to support with evidence and submissions. It should not argue a higher rung on the bail ladder or detention as an alternative position (at para. 48).