R v Antic: Making way for a more efficient bail system

In the recent R v Antic, 2017 SCC 27 [Antic] decision, the Supreme Court of Canada (“SCC”) provides a much-needed reminder for bail courts across the country to uphold the accused’s right to a reasonable bail under section 11(b) of the Canadian Charter of Rights and Freedoms [Charter] when making decisions on releases. Antic highlights a troubling trend: bail courts across Canada have struggled with applying bail provisions outlined in section 515(2) of the Criminal Code, RSC 1985, c C-46 [Code], resulting in systemic issues that have plagued the bail system for years. In light of the decision, I predict the impact of Antic will lead to a more efficient system by choosing the correct form of release and conditions for an accused. First, let’s turn to the facts and judicial history of Antic.

Procedural History

Kevin Antic was arrested for drug and firearm offences in Windsor, Ontario in early summer of 2015. On June 30, 2015, Mr. Antic had a bail hearing. He was denied bail because the bail justice believed Mr. Antic was a flight risk, despite his girlfriend agreeing to be his surety. Mr. Antic was then placed back in custody.

Mr. Antic subsequently asked for his bail to be reviewed on three separate occasions between the months of July 2015 and October 2015. Upon first review, Mr. Antic offered to have a more secure bail release by providing both his father and grandmother as sureties. Mr. Antic’s grandmother also agreed to pledge $10,000 of her own assets. Upon second review, Mr. Antic had already served over two months in jail and pled guilty to the drug charges. On both occasions, the bail judge still considered Mr. Antic to be a flight risk, and Mr. Antic was again returned to custody.

The third bail review raises the issues that form the basis of the case’s appeal to the Supreme Court. Mr. Antic argued that section 515(2)(e) of the Code—which gives the bail justice the discretion to grant a release on cash and surety bail to an accused who normally lives 200 kilometres away from the place in which they are being held in custody—violated an accused’s right to reasonable bail under s.11(b) of the Charter.Mr. Antic argued that because he lived within 200 kilometres of the place he was being held, he did not qualify for a surety and cash deposit bail that the bail judge required for Mr. Antic’s release.

The bail review judge agreed. After striking down the geographical requirement in section 515(2)(e) of the Code, the bail review judge granted bail so long as Mr. Antic had a surety and made a cash deposit of $100,000 dollars.

Not surprisingly, Mr. Antic did not have $100,000 in cash on hand. It took him almost a full year raise the money needed. On July 15, 2016, Mr. Antic was released on bail.

Since the Crown has no right to appeal a bail review decision to a provincial court of appeal, the Crown appealed the bail review judge’s decision to strike down the geographical limitation in section 515(2)(e) of the Code straight to the Supreme Court.

Overview of Bail Procedure

In most cases, the Crown bears the burden of justifying why an accused should not be released on bail. The Crown must justify its reasoning under one of the three grounds listed in section 515(10) of the Code.

If a Crown does not seek a detention of the accused under section 515(1) of the Code, the courts must start with the presumption that the accused should be released on bail. All forms of release for bail are outlined in section 515(2) of the Code, which is reproduced below. Note that the forms of release become more restrictive as you go down the list:

(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released

(a) on his giving an undertaking with such conditions as the justice directs;

(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or

(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.

The burden falls on the Crown to show why a more restrictive form of release is justified. Their reasoning must adhere to the ‘ladder principle’—a principle where  bail courts must presume that an accused should be released on the least restrictive release, which is an undertaking without any conditions attached. A release that is more restrictive must be  justified by showing that less restrictive forms of release should not be ordered.

The Crown must also adhere to the ladder principle when deciding on what conditions an accused should be placed on when they are out on bail. The presumption is that no conditions should be ordered, and the Crown must justify any additional conditions they seek for the accused.Ultimately, it is up to the bail justice to determine the accused’s form of release and conditions.

Moving forward from Antic: Improving efficiency

Writing for a unanimous court in Antic, Justice Wagner reverses the bail judge’s decision to strike down the geographical limitation in section 515(2)(e) of the Code as unconstitutional. Justice Wagner found the bail review judge erred by failing to adhere to the ladder principle by refusing to consider other forms of release other than a cash deposit and surety. In this case, Justice Wagner finds the bail review judge should have realized Mr. Antic’s pledge to put up assets was just as coercive as an actual cash deposit.

What makes Antic interesting and undoubtedly influential is not a narrow reading of the constitutionality of section 512(2)(e) of the Code. Rather, the decision serves as a reminder to all actors in the bail system to remember some of the key principles that justify the creation of a bail system in the first place: an accused is presumed innocent before proven guilty, so state intrusion should be as minimal as possible and any further intrusion should be justified. Bail courts must exercise their discretion and decision making under the ladder principle, where the starting point must be a presumption of release without conditions.

Returning to the ladder principle will create efficiency in the bail system. In my opinion, an efficient bail system is one that determines the least restrictive release and conditions for an accused. However, the bail would be sufficient to deny a detention order, as outlined in section 515(10) of the Code. That is, the bail would be enough to incentivize an accused to 1) come to court, 2) ensure public safety, and 3) maintain confidence in the justice system. If there is no form of release that could ensure all three criteria, then the Crown would be justified in keeping the accused in custody for any of the following grounds outlined in section 515(10) of the Code. In short, the efficient bail system places the right people out on a reasonable bail and the right people in custody. Ideally, the efficient bail system would have adequate resources to do so within the 24 hours in which an accused is arrested.

There is no doubt that the current bail system is inefficient. Mr. Antic’s case represents a widespread problem across Canada’s bail courts, where the wrong people have been granted bail on overly restrictive releases. Indeed, in paragraph 65, Justice Wagner writes that there may be an overreliance on surety release in several provinces in Canada. Many accused are not releasing at all. On average, over 50% of people across provincial and territorial jails are awaiting trial or a bail hearing. Of these people in pre-trial custody, 60% were charged with non-violent crimes. Additionally, overly restrictive and inappropriate bail conditions can result in people breaching their bail and sent back to jail, resulting in what the Canadian Civil Liberties Association describes as the “revolving door” of pre-trial detention. Around 10% of people up for a bail hearing are there because they have violated a bail condition.

The consequences of failing to adhere to the ladder principle and the resulting inefficiency can have significant consequences. For Mr. Antic and many others, it could mean days to months in custody, waiting to hear back from sureties or trying to raise cash for a deposit, when other forms of reasonable and meaningful bail were available. Jails become overcrowded and bail courts become overwhelmed. Restrictive forms of release like sureties and cash bail can disproportionately affect groups who are marginalized, including people with low-income, or people with mental disabilities.

Change is on the Horizon

After Antic, there have been moves towards reformulating bail practices that favor a more liberal approach. On September 18, 2017, Ontario’s Attorney General, Yasir Naqvi, announced that the province will release new Crown bail policies in light of Antic. Let’s hope other provinces follow suit, as we must continue to move towards a fair and efficient bail system for all.