COURT FILE NO.: CR-17-0008060
DATE: 20180208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRENDAN TUNNEY
Defendant/Applicant
COUNSEL:
Paul Tait, for the Crown
Senem Ozkin, for the Defendant/Applicant
HEARD: November 1 and 24, 2017
RULING ON APPLICATION
Di luca j.
[1] On November 1, 2017, Mr. Tunney appeared on an application, pursuant to s. 520 of the *Criminal Code*, seeking a review of the conditions of the judicial interim release order made by Justice of the Peace Romagnoli on October 4, 2017. Mr. Tunney had been released with a surety and conditions following a Crown onus bail hearing.
[2] At the initial hearing of the bail review application, the Crown indicated that it would consent to certain variations of Mr. Tunney’s release order, including the removal of the surety. I accepted the joint request to vary Mr. Tunney’s bail, and he was admitted to a new judicial interim release order on his own recognizance with less onerous conditions than those imposed at his initial bail hearing. Despite the Crown’s consent to the bail variation, Ms. Ozkin, who is the manager of the Criminal Duty Counsel Office in Newmarket, sought the Court’s leave to make submissions and requested that the Court consider providing guidance on certain issues raised in this matter. In light of a clarion call for culture change signalled in R. v. Antic, 2017 SCC 27, Ms. Ozkin specifically asked the Court to review the procedure that should be followed when conducting Crown onus bail hearings.
[3] I adjourned the matter for further submissions and indicated that I would issue reasons in due course. In my view, while the consent variation resolved the instant issue as far as Mr. Tunney was concerned, the issues presented in this case warranted further consideration and comment both for Mr. Tunney and for others who may find themselves in the same position.
[4] The bail hearing conducted in this case raises a number of concerns. It was tainted by legal error. It was procedurally flawed. It also demonstrated the risk of adverse culture underlying persistent calls for bail reform in Canada.
[5] Contrary to the direction found in Antic, the Justice of the Peace in this case erred in failing to analyze and provide reasons why lesser forms of release were insufficient in the circumstances. The Justice of the Peace also erred in refusing defence counsel’s request for a bifurcated hearing in which the accused would only need to call his proposed surety once the Court determined that release with a surety was appropriate. Finally, the comments made by the Justice of the Peace during the hearing 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.
[6] To be clear, I am only addressing what happened in Mr. Tunney’s case. While Ms. Ozkin indicated that this case is symptomatic of widespread problems in bail courts, I have no way of knowing how unique or common the issues presented in this case are. Be that as it may, it strikes me that some guidance is required nonetheless.
Background
[7] The background to this case is generally unremarkable, albeit relatively serious. Mr. Tunney was arrested on October 3, 2017, and charged with criminally harassing his ex‑girlfriend over a six month period coinciding with the end of their romantic relationship. He was also charged with threatening to publish intimate images of his ex‑girlfriend and with publishing intimate images without his ex-girlfriend’s consent. The allegations also included uncharged conduct involving an alleged assault that resulted in a bloody nose and mischief involving damage to the complainant’s cell phone.
[8] At the time of the bail hearing, Mr. Tunney had no criminal record or outstanding charges.
The Bail Court Proceedings
[9] On October 4, 2017, Mr. Tunney appeared in bail court. In view of the charges and Mr. Tunney’s background, this was a Crown onus bail. The Crown’s position at the outset of the bail hearing was stated as follows:
MS. ARMOUR: Surety bail, stringent bail conditions, no contact, no weapons and no access to internet because parts of this include an allegation that he was posting pictures that he had in his possession of the victim in order to intimidate her into continuing a relationship with him.
[10] Duty counsel, Mr. Hartling, advised the Court that his position was that Mr. Tunney should be released on his own undertaking or recognizance but that a surety was available “if the court deems it necessary.”
[11] The following colloquy ensued:
THE COURT: On the Tunney matter, I would have a contested hearing and want to hear from the surety, given the situation.
MR. HARTLING: And I, I won’t be…
THE COURT: What is….
MR. HARTLING: …calling a surety….
THE COURT: Whose onus is it? A Crown onus or reverse onus?
MS. ARMOUR: It says it’s a Crown onus.
THE COURT: Thank you. The Crown is not consenting in the absence of a surety being – coming forward, so it’s a contested hearing.
MR. HARTLING: Okay. Well, I, I won’t be calling a surety. So, unless my friend intends to call someone in-chief, I – we won’t be hearing from a surety unless the court rules that one is necessary. Of course, I don’t believe that hearing from a surety is necessary if the court deems that a surety isn’t necessary. I think we are putting the cart before the horse.
THE COURT: My – if we are having a hearing we’re gonna have a hearing all at once. We’re not gonna have a part hearing and then turn around and, and extend that hearing, so….
MR. HARTLING: Yes, and, and we’re happy to have a hearing. There will be a surety available if the court rules that a surety bail is necessary and the, the court does set a surety bail. We could – it wouldn’t be a hearing, it would just be whether or not the surety qualifies.
THE COURT: I see.
MR. HARTLING: But I’m – on that basis, Your Worship, I’m content to proceed.
MS. ARMOUR: Yeah, the, the Crown has an obligation to review the surety with the – with a view to appropriate, appropriateness.
THE COURT: Yes, absolutely.
MS. ARMOUR: So, to that end, I would have to do that and…
THE COURT: Thank you.
MS. ARMOUR: …if there were none called then….
[12] Duty counsel then indicated that he was prepared to start the show cause hearing, and while the parties were awaiting Mr. Tunney’s arrival in court, the Justice of the Peace commented:
THE COURT: Okay. Just before we begin, Mr. Hartling, I want you to know this one thing, and I’ve been thinking about what you’ve been saying that you’re not calling any, uh, any witnesses or any evidence with respect to this matter. I understand in this particular instance that it’s a Crown onus and what I’m – what I believe that you’re asking the court to do is make a decision on your end. If, let me tell you, that if the court makes – after the hearing is completed and the court makes a finding that the Crown has met their onus, there will be an order for detention.
It doesn’t get reopened, it can be appealed but it doesn’t get reopened.
[13] Duty counsel sought to make further submissions and indicated that he would only be calling further evidence if the court decided that a surety bail was required. In particular, duty counsel indicated that he would seek to call evidence if the Crown failed to meet the onus for detention, but nonetheless met the onus for a surety bail. The Justice of the Peace reiterated that she would not reopen the hearing if that was the case and would not make such a decision in advance. This interaction ended with the Justice of the Peace commenting:
THE COURT: I’m gonna recess. I believe that I know what the law in a bail hearing is. We’re gonna take a recess.
[14] Following the recess, the bail hearing commenced. At the outset of the hearing, the Crown re-stated its position as follows:
MS. ARMOUR: The Crown’s position is that without an appropriate plan or very stringent conditions, that the accused is a danger, specifically to one victim and perhaps others, by the stalking and should be detained.
[15] The Crown, with the consent of the defence, read in the allegations that formed the basis of the charges before the court. Duty counsel again suggested that he was prepared to call the proposed surety, “if Your Worship deems that a surety is required….” Duty counsel presented the proposed surety’s affidavit to the court, and the proposed surety was called to testify.
[16] At the conclusion of the surety’s evidence, the Crown indicated that she was content that Mr. Tunney be released on a surety bail with the proposed surety as a named surety. The Justice of the Peace noted “it appears that the Crown has changed the – their position and I’m of the view that he is, as well, is a candidate for release.
[17] Duty counsel then made submissions on the form of release, arguing that in accordance with the ladder principle, a release on an undertaking with conditions was appropriate.
[18] At the completion of submissions, the Justice of Peace ruled:
THE COURT: The Crown, based on the evidence that’s before the court today, has changed their position with respect to showing cause and has – is of the view that you’re a candidate for a release with a surety in place.
Now the whole issue here is whether a surety is necessary or not, and the defence counsel is relying heavily on Regina v. Antic and it’s a Superior [SIC] Court decision where there is a, gradual increase of more stringent release orders. But each case, in my view, stands on its own.
Here, these allegations are very serious allegations….
So, I’m of the view that the Crown has a strong case. Do I believe that there is a surety necessary? I absolutely do. I believe that he needs to be monitored. The Instagram can be accessed by the cell phone through internet. And, and we have someone that comes forward that’s going to sign as a surety for him, willing to pledge some money, willing to supervise conditions on a release order and willing to call the police if he violated any of those conditions.
The Arguments on the Application
[19] In her able submissions, Ms. Ozkin argued the following:
a. The Justice of the Peace erred by considering detention where the Crown was not seeking to show cause for detention.
b. The Justice of the Peace erred by requiring the surety to testify before making a decision as to whether there would be a release or detention in a Crown onus bail.
c. The Justice of Peace erred by failing to follow the principles re-affirmed in R. v. Antic. In particular, the Justice of the Peace erred by failing to provide reasons why a lesser form of release was not acceptable.
d. The Crown erred in taking a position on a bail hearing that was contingent upon defence evidence (or conversely, to not take a position in the absence of defence evidence).
e. The Crown erred in arguing more than one rung of the bail ladder.
[20] At the initial hearing of this application, the Crown agreed to remove the surety requirement and also agreed to less onerous bail conditions. When the application was fully argued, the Crown acknowledged the bail hearing in this case was procedurally deficient. The Crown noted that the procedure employed blurred the line between the appropriate form of release and the suitability of the proposed surety. The Crown also agreed that the Justice of Peace erred in considering detention as a possibility where the Crown was not seeking detention. Lastly, the Crown agreed that when the bail onus is on the Crown, it should generally take a position on only one rung of the bail ladder.
[21] The Crown also noted that a new Crown Policy addressing issues in the bail process is now in effect and that going forward, Crowns will be applying this new policy to decisions regarding bail. Lastly, the Crown noted that there are courthouse committees in place that monitor and assess the efficient and fair administration of court processes, including bail hearings. In this regard, the Crown reminded me that my task on this bail review is limited to determining issues raised by the specific facts of this case.
Legal Framework
[22] Section 11(e) of the Charter guarantees the right not to be denied reasonable bail without just cause. The importance of this right was best expressed by Iacobucci J. dissenting in R. v. Hall, 2002 SCC 64, where he stated at paras. 47-49:
At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.
In the context of the criminal law, this fundamental freedom is embodied generally in the right to be presumed innocent until proven guilty, and further in the specific right to bail. When bail is denied to an individual who is merely accused of a criminal offence, the presumption of innocence is necessarily infringed. This is the context of this appeal, one in which the “golden thread” that runs through our system of criminal law is placed in jeopardy. And this is the context in which laws authorizing pre-trial detention must be scrutinized.
Section 11(e) of the *Canadian Charter of Rights and Freedoms* calls particularly on courts, as guardians of liberty, to ensure that pre-trial release remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstances where the fundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societal interest.
[23] The Supreme Court of Canada has, on a number of occasions, discussed the importance of the right to bail and has provided guidance on its meaning: see R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, R. v. St-Cloud, 2015 SCC 27, and R. v. Antic. These cases all recognize that the statutory right to bail found in the *Criminal Code* has taken on a constitutional dimension that involves two concepts: “just cause” and “reasonable bail”.
[24] The concept of “just cause” has two separate but related meanings: see R. v. Antic, at paras. 33-34. First, “just cause” relates to the circumstances in which a denial of bail is constitutionally permissible. Bail should only be denied in narrow circumstances where it is necessary to promote the proper functioning of the bail system: see Antic, at para. 40. Second, “just cause” describes the statutory grounds enumerated in s. 515(10) of the *Criminal Code*, which justify the detention of the accused. The statutory grounds include the flight risk, public safety and public confidence in the administration of justice.
[25] The concept of “reasonable bail” also relates to the conditions of a bail release. Terms of bail that are unreasonable are by definition unconstitutional. Reasonable bail relates to the statutory form of release as well as any additional conditions that a justice may, in his or her discretion, impose on the release order: see R. v. Antic, at paras. 41-42.
The “Bail Ladder” and the Overuse of Sureties
[26] In the late 1960s and early 1970s, academic research into the bail system revealed a number of significant flaws. At the time, Professor Friedland noted that “the law should abhor any unnecessary deprivation of liberty and positive steps should be taken to ensure that detention before trial is kept to a minimum”: see R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at para. 38, citing Justice Marc Rosenberg (Address delivered to the Criminal Lawyers’ Association, 28 November 2009); Benjamin L. Berger & James Stribopoulos, “Risk and the Role of the Judge: Lessons from Bail”, in Benjamin Berger, Emma Cunliffe & James Stribopoulos eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (Toronto: Thompson Reuters, 2017) 305-326.
[27] The Bail Reform Act ushered in a modernized bail system that sought to attenuate the sharp edges of the old approach to bail. One of its key components was the introduction of the “bail ladder”. As Wagner J., as he then was, explained in R. v. Antic, at paras. 29-31:
The Bail Reform Act also codified what is now known as the “ladder principle”. This Act set out possible forms of release, which were ordered from the least to the most onerous. The ladder principle generally requires that a justice not order a more onerous form of release unless the Crown shows why a less onerous form is inappropriate. In other words, the ladder principle means “that release is favoured at the earliest reasonable opportunity and . . . on the least onerous grounds”: R. v. Anoussis, 2008 QCCQ 8100, 242 C.C.C. (3d) 113, at para. 23, per Healy J.C.Q. (as he then was).
The ladder principle and the authorized forms of release remain a central part of the Canadian law of bail and are now enumerated in s. 515(1) to (3) of the Code. In the Code, the possibility of requiring a cash deposit is limited to the two most onerous forms of release: s. 515(2)(d) and (e).
In 1982, the enactment of the *Charter* transformed the statutory right to bail into a constitutional right: R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at p. 691.
[28] Despite the best intentions of the Bail Reform Act, access to reasonable bail has remained problematic in the justice system. Indeed, over the past decade there have been persistent calls for reform of Canada’s bail system, which has been described as “broken”, “failing”, and “inequitable”. See for example: John Howard Society of Ontario, Reasonable Bail?, (Toronto, 2013); Department of Justice Canada, “Broken Bail” in Canada: How We Might Go About Fixing It, (Ottawa, 2015); Ontario, Ministry of the Attorney General, Bail and Remand in Ontario, Rayond Wyant auth. (Toronto, 2016); Canadian Civil Liberties Association and Education Trust, Set up to Fail: Bail and the Revolving Door of Pre-Trial Detention, (2014); Martin Friedland, “The Bail Reform Act Revisited” (2012) 16:3 Can. Crim. L. Rev. 315; Legal Aid Ontario, A legal aid Strategy for bail, (Toronto, 2016); Nicole Myers, “Shifting Risk: Bail and the Use of Sureties” (2009) 21:1 Current Issues in Crim. J. 127; Berger & Stribopolous, at pp. 312-313.
[29] Underlying Canada’s broken bail system is a culture of risk aversion within the criminal justice system: see Cheryl Marie Webster, Anthony N. Doob, and Nicole M. Myers, “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” (2009), 21 Current Issues in Criminal Justice 79, as cited in Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto, Ontario: Thomson Reuters Canada, 2017), at. pp. 1-44.1, 6‑24.2. This culture of risk aversion is unfortunate, yet understandable. When someone who is on bail commits a serious, perhaps violent offence, the bail system often comes under both public and legal scrutiny. Inquiries into such cases have revealed flaws in the bail system that permitted the release of individuals who presented an unreasonable risk to the safety of others: see for example Ontario, Office of the Chief Coroner, “Report on the Inquest into The Deaths of Arlene and Randy Iles” (Toronto: September 1999). Through increased awareness, education, and information sharing, the justice system has come a long way towards approaching issues such as domestic violence and sexual assault with a better understanding of the underlying contextual issues. That said, it is clear that the culture of risk aversion must be tempered by the constitutional principles that animate the right to reasonable bail. Berger & Stribopoulos make this point eloquently at pp. 323-324:
In the criminal justice context, adopting a precautionary approach to risk management can lead to a relinquishment of the burdens of judgment and the responsibility to vindicate important legal values and principles. As the Supreme Court has underscored in Antic, the guiding concept in bail – the one that gives effect to the fundamental values of the system, including the presumption of innocence – is not the precautionary principle, but the ladder principle.
[30] In Ontario, one component of this culture of risk aversion is an overreliance on sureties. The over-reliance on sureties has been recognized at the highest levels of court. In Canada (Attorney General) v. Hovarth, 2009 ONCA 732, a five-member panel of the Court of Appeal noted:
There may now be an over reliance on sureties. Thus, see the comments of Professor Friedland in “Criminal Justice in Canada Revisited” (2004), 48 C.L.Q. 419 at 433-34:
The present system is, however, not working well in Ontario. The pendulum has swung too far in the direction of requiring sureties rather than using release on one’s own recognizance. In England, sureties are required in only a small fraction of the cases. About two thirds of those who appear for a bail hearing in Toronto today are required to find sureties and only about half of this number are actually released. The other half, it appears, could not find acceptable sureties. Less than 10% held for a bail hearing are released on their own undertaking or recognizance.
What appears to be happening is that the requirement to find sureties has taken the place of cash bail as a method of holding accused persons in custody. The majority of persons who are caught up in the criminal justice system, many of whom are not from the community where they are arrested, have difficulty finding sureties.
[31] Similarly, in Antic, at para. 65, Wagner J., as he then was, noted that the *Criminal Code* bail provisions were not being uniformly applied across the country. In support of this proposition, he noted the overuse of sureties in Ontario and the Yukon.
[32] The widespread use of sureties has consistently been criticized for, among other things, causing delays within the bail system, undermining the presumption of innocence, and, undermining the accused’s right to reasonable bail: see Bail and Remand in Ontario, at pp. 31-36, A legal aid strategy for bail, at pp. 6-7 and Gary T. Trotter, at pp. 7-22; R. v. Jevons, 2008 ONCJ 559, at paras. 27, 29, R. v. Villota, 3 C.R. (6th) 342, at para. 81 (O.N.S.C.); R. v. Rowan, 2011 ONSC 7362, at para. 16, and R. v. Mead, 2016 ONCJ 308, at paras. 38-46.
[33] Indeed, there have been repeated calls to restrict the “near automatic” resort to the use of sureties: see Ministry of the Attorney General for Ontario, “Bail Experts Table Recommendations”, (Toronto: MAG, 2013), pp. 21-23; Recommendation 4.1 in Set up to Fail, at pp. 35-40.
[34] In a report prepared for the Ministry of the Attorney General, highly respected jurist Raymond Wyant noted that the over-use of sureties is symptomatic of a constructive reverse onus scenario in the bail process. He explained at pp. 37-38 of his report:
In the event the police do not release an individual or the crown does not consent to the release of an individual, then a justice of the peace must decide whether or not to release that individual. Again, absent the application of the reverse onus provisions, the onus is on the crown to justify detention or to convince the court why the accused should be detained or released on anything more than an Undertaking with conditions. However, despite what the *Criminal Code* says, in Ontario in practical terms, if the police have not released or if the Crown has not consented to release, there is really a de facto onus on the accused to show why he or she should be released. In other words, the letter or spirit of the Criminal Code provisions are not followed in Ontario. It appears that if an accused wants to be released on bail and the crown is opposed, practically speaking, it is up to them to show why they should be released and to provide a plan to satisfy the court that such a release is appropriate. This ‘practical reverse onus’ is wrong and puts the Crown in the position of being the main determiner of bail in the province…
It is expected in this ‘practical reverse onus’ environment that exists in Ontario that the defence will call evidence. That usually involves calling sureties to the stand for the purpose of giving evidence under oath that they understand the obligations of a surety and are “worth” the sum of a bond they might sign. This procedure raises a host of issues and concerns….
[35] Calls for a different approach appear to have been answered as a matter of Crown policy. A less restrictive approach to the use of sureties has now been incorporated into the Crown Policy Manual: see Bail Directive – Judicial Interim Release, October 30, 2017.
[36] The Court has also responded. In R. v. Antic, the Supreme Court acknowledged the ongoing problems with the bail system. The Court noted that the *Criminal Code* bail provisions must be applied consistently and fairly across the country, stating at para. 66, “[t]he stakes are too high for anything less”. The Court went further and issued a clarion call for a return to bail practices that recognize the primacy of the presumption of innocence, as well as the importance of the statutory “bail ladder” provisions, which are geared towards respecting constitutional guarantees of reasonable bail. The clear message from the Supreme Court is that participants in the justice system must return to the first principles of bail, both as a matter of law and as a matter of practice.
[37] The Court in Antic offers the following guidance in this regard, at para. 67:
Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:
(a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.
(b) Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.
(c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).
(d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, “release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds”: Anoussis, at para. 23. This principle must be adhered to strictly.
(e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.
(f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.
(g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.
(h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or s. 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.
(i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case.
(j) Terms of release imposed under s. 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person’s behaviour or to punish an accused person.
(k) Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.
[38] In accordance with Antic, the presumptive starting point for bail is a release on an undertaking. In a Crown onus scenario, each step of the ladder must be justified based on the evidence heard at the bail hearing. A release with a surety is one of the most onerous forms of release and should not be considered until all less onerous forms of release are determined to be insufficient.
The Surety Approval Process
[39] It has been repeatedly stated that there is no legal requirement for a surety to testify in court in order to secure the release of an accused: see R. v. Brooks (2001), 2001 CanLII 28401 (ON SC), 153 C.C.C. (3d) 533 (Ont.S.C.J.); R. v. Villota; R. v. Renaud, 2010 ONSC 5300. As a matter of law and practice, the surety approval process can but does not have to, take place in court as part of the bail hearing. As Justice Trotter notes in his authoritative text, The Law of Bail in Canada, at pp. 7-22, 7-24:
[An] inquiry may be undertaken by the presiding judicial officer as to the suitability of a proposed surety. Indeed, s. 515(2.1) of the *Criminal Code* permits a “judge, justice or court” to name particular persons as sureties. The process involved in deciding whether the offered person is a viable surety often involves viva voce evidence, according to the standard examination in chief/cross-examination format. But it need not be addressed in this formal manner. There are other methods that may be used. Section 518(1)(a) permits the justice or judge to make inquiries about the accused “on oath or otherwise,” just as 518(1)(e) allows a decision based on “evidence considered credible and trustworthy.” The justice may also take into consideration relevant matters “agreed on by the prosecutor and the accused or his counsel”: s. 518(1)(d). Each of these provisions offers a potentially less time-consuming approach to determining the suitability of a surety in open court. A justice or judge may simply ask questions of the surety not under oath and make a determination based on the response. Similarly, the same decision may be based on affidavits of prospective sureties or a questionnaire completed by the person wishing to act as surety. The proper method will be governed by the circumstances of the case and local practices.
Whether sureties should be examined during a bail hearing is a matter that should be decided on a case by case basis. In some cases, where the allegations are not serious, but it is determined that a surety release is appropriate, it may not matter who will stand as the accused’s surety(ies). In other cases, it will be crucial. Justices and judges should determine whether it is necessary for the issue to be addressed in court and then consider how it may be effectively done. Some of the less formal procedures referred to above, including surety affidavits and questionnaires, are options for consideration.
[40] In many locations, Justices of the Peace are available to approve sureties outside of court either by attendance “over the counter” or in chambers. Using out of court surety approval processes contributes to various efficiencies within the system. In particular, it makes bail hearings simpler, shorter and more focussed. It makes it easier and more convenient for sureties to attend court in order to secure the release of accused persons. It spares precious court time, which in the era of Jordan is at a premium.
[41] In some jurisdictions, the surety approval process has historically taken place in court as part of the bail hearing. At times, this process works appropriately, particularly in serious cases where an exceptional surety may make the difference between detention and release. At other times, this approach has not only caused unnecessary delays and inconvenience, but it has also resulted in unfair practices. Indeed, it appears that there have been times when the surety approval process has taken on a needlessly adversarial tone, which has created the impression that the proposed surety is somehow on trial: see Bail and Remand in Ontario, at pp. 32-34; Berger & Stribopoulos, at pp. 317-318. To state the obvious, bail hearings are not trials. Procedures and practices that unduly discourage potential sureties from coming forward to offer their services are to be avoided: see R. v. Mirza, at paras. 47-48. Uniform or regular use of in‑court surety approval is such a practice.
[42] More significantly, the use of the in-court surety approval process in ordinary cases creates a risk that the bail hearing will morph into a constructive reverse onus scenario. It also creates a risk that the issue of releasability will be confused with the issue of surety suitability. Over 15 years ago, Duncan J. addressed this very issue in R. v. Cole, [2002] O.J. No. 4662 (Ont.C.J.). At paras. 18-20, he explained:
The determination of surety suitability can be done either by the justice at the bail hearing itself or, if an order for release on a recognizance with sureties is made at the hearing, by a justice before whom the recognizance is entered into: See Trotter, supra, p. 200; R. v. Brooks, supra. The practice in this jurisdiction has been (and apparently still is) to have sureties attend the bail hearing and testify before the justice. Justice Hill has been trying to direct the bail courts in this jurisdiction that, contrary to their ingrained practices, sureties need not be present and testify before the Justice making the release/detention decision. His decision in Brooks, supra, apparently went largely unheeded, necessitating his comprehensive decision in R. v. Villota, (2002) 2002 CanLII 49650 (ON SC), 163 C.C.C. (3d) 507. He identified a number of serious problems that arise from the practice, including the routine adjournment of bail hearings because sureties are not present, and delays and backlog caused by bail hearings being prolonged while sureties are examined and cross-examined.
In addition to the problems identified by Justice Hill, it is my view that the practice has the potential to infect the very decision making process on a bail hearing. First, it tends to obscure the central issue, being release or detention, or more properly, whether the Crown has shown cause. Secondly, it tends to establish surety release as the dominant and almost exclusive form of release considered at bail hearings. The default position is unconditional release on an undertaking: section 515(1). An undertaking with conditions and a recognizance without sureties must be considered and rejected before moving on to consider a recognizance with sureties: section 515(3). The Crown must move up the ladder and justify each greater level of restraint by showing cause. As Trotter points out in his book, at pp. 157-160 the primary, secondary and tertiary grounds, while expressed as grounds for detention, are also the grounds that must be established to move up the ladder. Where, as in this jurisdiction, sureties are expected to be called on bail hearings, prudent defence counsel presents his sureties because he can't predict how high up the ladder the Crown will advance. In the result, the participants in the bail hearing begin to think only in terms of a release with sureties and do not address or consider less restrictive forms of release. The Crown is effectively given a free pass to the fourth and, practically speaking, top rung of the ladder. Finally, even where the bail hearing is properly focused on the surety rung of the ladder, the practice of calling proposed sureties before the decision making Justice tends to blur and meld together what should be two distinct issues - whether release on a surety bail is appropriate and whether the proffered sureties are suitable.
Accordingly, it is my view that these two issues should generally be kept at least conceptually separate.
Analysis
[43] In my view, the bail hearing conducted in this case exemplifies the very concerns raised in R. v. Antic. It also provides an example of a Crown onus bail hearing that was conducted with a constructively imposed reverse onus requiring the accused to justify his or her own release by proffering the evidence of one or more proposed sureties.
[44] I start with a review of the Justice of Peace’s purported analysis of the Supreme Court of Canada’s decision in R. v. Antic. In her brief treatment of this case, the Justice of the Peace noted:
…defence counsel is relying heavily on R. v. Antic and it’s a Superior [SIC] Court decision where there is a, a gradual increase of more stringent release orders. But each case, in my view, stands on its own.
Here, these allegations are very serious allegations....
[45] With respect, R. v. Antic is not simply a case that “stands on its own”. It is not a case that can simply be distinguished “on the facts”. Any attempt to do so misses the point. The Antic decision is a binding precedent from the Supreme Court of Canada that must be followed. It is a decision that reviews and explains the law of bail in Canada and seeks to recalibrate the bail process across the country. Importantly, it reminds all members of the justice system that reasonable bail is a constitutional right and that the *Criminal Code* contains a mandatory procedural code that includes certain presumptions that are integrally linked with the various steps of the bail ladder.
[46] In my view, the Justice of Peace erred in law by failing to recognize the clear message of the Antic decision. That message, to repeat, is that in cases where the Crown bears the onus on a bail hearing, a surety release is one of the most stringent forms of release that should only be considered where all lesser forms of release fail to satisfy the concerns raised by the evidence. In this case, the Justice of Peace effectively decided at the outset that a surety would be required given the seriousness of the allegations. Moreover, the Justice of Peace provided no reasons revealing why she concluded that all lesser forms of release were not sufficient. On this point, I want to be clear that in many cases a surety release will be the “best” or “safest” option. That is not, however, the test. While in many cases, it may be “best” or “safest” to have a surety, an accused who is presumed innocent should not have his or her liberty restricted if lesser forms of restriction will meet the statutory test for release.
[47] The defence further argues that the Justice of the Peace erred in considering a detention order in the absence of the Crown’s request for such an order. In cases where the Crown bears the onus and is not seeking to show cause why an accused should be detained, it will almost invariably be an error for the Justice of the Peace to find that cause for detention has been established. Moreover, language that suggests the possibility of detention in circumstances where it is not sought by the Crown is unhelpful, as it is strongly indicative of an underlying reversal of the onus. While the language used by the Justice of the Peace in this case is concerning, I am not prepared to find the Justice of Peace erred in this regard. The Justice of the Peace prefaced her mention of a detention order with the comment “if the Crown meets that onus”. However, when read in context, it appears she may have implicitly suggested that if the accused did not call evidence from a surety, he could be detained. To be fair, the Crown’s position varied. Initially, the Crown indicated that its position was “surety bail, stringent conditions”. Later, when duty counsel raised an issue regarding the necessity of calling the proposed surety viva voce, the Crown’s position changed to “without an appropriate plan or very stringent conditions, that the accused is a danger…and should be detained”. Following the evidence of the proposed surety, the Crown’s final position was that Mr. Tunney should be released with the surety named. It may well be that the Justice of Peace’s comments were reflective of the varying positions taken by the Crown as such do not reveal a clear error. Nonetheless, language is important and any language that implicitly suggests a reversal of the onus is best avoided.
[48] The defence further argues that the Crown’s approach to the bail hearing in this case was flawed and contributed to the outcome. I agree. It is clear that the Crown should take a reasonable and sustainable position on bail. That position should be taken in accordance with the burden at play. In Crown onus scenarios, the Crown should take a position on the bail ladder that it is prepared to meet by way of evidence and submissions. It should not argue a higher rung on the bail ladder as an alternative position. To permit this type of argument would shift the onus as it suggests that a detention order will follow, not because the Crown has met its onus but because the accused has failed to establish an appropriate release plan. While the accused may not have established a sufficient release plan, the question remains whether the Crown has met its burden. Where the Crown has failed to meet its onus for detention, it may well be that a “bail set but not met” finding is appropriate.
[49] I wish to be clear, I accept that there are cases where the Crown is prepared to meet its onus for detention but is willing to leave open the possibility that an exceptional surety plan can tip the balance in favour of release: see footnote 3 of R. v. Cole and R. v. Smith, 2013 ONSC 1341, at para. 52. In those scenarios, there is nothing wrong with the Crown indicating that its final position on bail is contingent on hearing the defence evidence, including the evidence of the proposed surety or sureties. This scenario should not, however, be a common or regular occurrence. It should not be used to gain a tactical advantage. If the Crown’s position on a Crown onus bail is routinely informed by the evidence that the defence calls at a bail hearing, the bail hearing will effectively become a reverse onus scenario.
[50] I turn next, to examining the procedure adopted by the Justice of the Peace in this case. I start with the observation that this case is a fairly typical case in bail court. The accused, who had no criminal record or outstanding charges, was arrested in relation to relatively serious criminal harassment allegations. However, on any objective assessment, he was readily releasable. At the outset of the hearing, duty counsel attempted to engage the Court in submissions regarding the appropriate procedure to be followed. Duty counsel indicated that he would only call a proposed surety if the Court determined that one was required. In other words, the defence wanted a ruling on the level of release and if the Court decided that a surety would be required, the defence would proffer a potential surety for approval.
[51] The Justice of the Peace adopted what can fairly be characterized as the traditional approach to a full bail hearing. This traditional approach mirrors, in some regards, the trial process. First, the evidence is called, then submissions are made and then a decision is rendered. The Justice of the Peace was reluctant to consider bifurcating the hearing into two stages, the first stage dealing with the level of release that was appropriate and the second stage dealing with the suitability of the proposed surety.
[52] In my view, the Justice of the Peace erred in requiring that the proposed surety testify in this case. There was no reason why the process could not have been bifurcated. There was no impediment to determining the appropriate level of release in the absence of evidence from the surety. The Justice of the Peace appears to have quickly concluded that the nature of the allegations in this case warranted a “contested” bail hearing, and she was reluctant to bifurcate that hearing with a ruling on form of release followed by further evidence from the sureties if required.
[53] There was nothing inherently wrong or improper with duty counsel’s request. In jurisdictions where the surety approval process takes place out of court, the process is routinely bifurcated without issue. The case law and legal commentary support the view that a flexible approach can be used in the bail process, particularly when it comes to the surety approval process. The process for approving sureties does not need to be done in court. As a matter of best practices, it can and perhaps should often be done outside court using sworn surety affidavits and/or questionnaires. This not only shortens hearings, but it also avoids the subtle slide into de facto reverse onus hearings by keeping the form of release and the approval of the surety analytically distinct.
[54] Even in jurisdictions where there is no formal out of court surety approval process in place, the absence of viva voce testimony from proposed sureties should not be viewed as a rare occurrence. It should be the norm, especially in routine Crown onus bail situations. I pause to note that the bail pending appeal process at the Court of Appeal for Ontario does not rely on viva voce testimony of proposed sureties. Indeed, it is a very rare occurrence for proposed sureties to be questioned in support of a bail pending appeal application. A few features of this process are noteworthy. First, the accused is no longer presumed innocent on a bail pending appeal application. He or she will have been found guilty beyond a reasonable doubt of one or more offences. Second, the onus is on the accused to meet the test for bail pending appeal. Notwithstanding these two factors, the Court of Appeal routinely considers bail issues on a paper record without viva voce testimony or transcripts of out of court examinations of the proposed sureties. In fairness, I note that in many, though not all, cases, the proposed sureties on a bail pending appeal application will have a proven record of supervision in relation to the specific accused before the court, and in most cases the accused will also have a proven record of compliance with bail. Nonetheless, the absence of a record of supervision and compliance at a first instance bail hearing does not support the conclusion that there needs to be an in-court examination of proposed sureties in all cases.
[55] On a related note, I understand that under s. 11 of the *Crown Attorneys Act*, R.S.O. 1990, c. C.49, a Crown conducting a bail hearing has a statutory obligation to satisfy him or herself of the sufficiency of the proposed sureties. The final determination of a proposed surety’s suitability remains a judicial function whether done in court or through some other process. I do not read s. 11(i) of the Act as a provision that gives the Crown the right to insist on viva voce evidence in any particular case. It is always open to the Crown to conduct inquiries of proposed sureties by way of affidavits, questionnaires, discussions with defence counsel and, where appropriate, discussions with the proposed sureties. In the rare case where the Crown feels that nothing short of viva voce testimony is required, the Crown is free to make submissions on the issue and it will be up to the presiding justice to determine whether viva voce evidence is ultimately needed.
[56] Similarly, the defence should be free to argue that a bifurcated process is appropriate in any given case. In most cases, it will be appropriate. Where the jurisdiction does not have an out of court surety approval process in place and the sureties are not present in court, the defence must consider the mechanics of proceeding in a bifurcated fashion. When a bail is “set but not met”, an additional appearance may be required in order to address surety approval, which could add to delay and inefficiency. As well, in serious cases, where the circumstances might well support detention, it may well make the most sense for the hearing to proceed in the traditional manner with evidence called from the proposed sureties at the bail hearing.
[57] I conclude by recognizing that there is an inherent comfort in “doing things” as they have been done for years. Change is uncomfortable. However, much like the Jordan decision called for a change to the culture of complacency and delay, the Antic decision signals the need for a change in our bail culture. The message is clear. We need to do things differently.
[58] The application is allowed.
Justice J. Di Luca
Released: February 8, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BRENDAN TUNNEY
Defendant/Applicant
RULING ON APPLICATION
Justice J. Di Luca
Released: February 8, 2018