Judicial interim release, also commonly referred to as “bail,” is a complex area of the law and requires precise strategic planning. The law of bail changed fundamentally when the Supreme Court of Canada released its decision in R v St-Cloud, 2015 SCC 27.
There are three primary areas of consideration when a court is determining if an accused person can be released. We commonly refer to these considerations as the primary, secondary and tertiary grounds.
Primary grounds really involve whether or not the court believes the accused person will come to court. The secondary grounds include an analysis on if the accused person is likely to commit further criminal offences on release. Finally, the tertiary grounds involve whether the detention of an accused person is necessary in order to maintain confidence in the administration of justice.
Prior to the St-Cloud decision, this last ground was rarely used or argued. However, the Supreme Court made it clear with St-Cloud that the tertiary grounds are not just for the “rarest” of cases. Prosecutors began arguing and pressing the tertiary grounds on a fairly regular basis after the release of St-Cloud.
Being accused of murder is very serious. One would think that detaining an accused murderer is always necessary to maintain confidence in the administration of justice. This is why choosing an experienced lawyer, who knows how to strategically plan for an argument like this, is so important.
There are many moving parts at this stage in the proceedings. There is pressure on the prosecutor to argue for bail for many reasons, including, but unfortunately, the optics of being tough on crime. However, it is so fundamentally important to remember that an accused person is presumed innocent, especially at this stage in the proceedings.
Very recent case law from the Supreme Court has reminded the legal profession that release on the most minimal conditions is the starting point. This is difficult to balance when a person is accused of murder.
Our firm recently obtained the release of a man charged with murder. As can be seen from the article below, the Court balanced Mr. Christal’s presumption of innocence against the allegation of murder by imposing conditions based on the applicable but competing legal decisions at issue.
Bail is a critical first step in a criminal case. The decision on bail will have many impacts to the person accused of a crime. The decision and or conditions imposed may impact the person’s ability to keep his or her job, continuing living with his or her family and potentially seeking treatment, if needed.
If a lawyer argues for bail without the proper strategic planning and if bail is denied, many devastating consequences can arise. It is vitally important to retain a lawyer that has the experience and reputation to assist you or your loved one when facing the need to make an application for bail.