Consistency of bail conditions with the presumption of innocence
A bail condition must be reasonable. As with probation conditions, bail conditions cannot contravene constitutional safeguards.
The general principles for setting bail, which restrain how bail conditions are set. As the default position is bail without conditions, the first issue is whether a need for any condition has been demonstrated. Restraint and the ladder principle require anyone proposing to add bail conditions to consider if any of the risks are at issue and understand which specific risks might arise if the accused is released without conditions: is this person a flight risk, will their release pose a risk to public protection and safety, or is their release likely to result in a public loss of confidence in the administration of justice?
If an accused is a flight risk, but poses no other risks, only those conditions that minimize their risk of absconding should be imposed. Similarly, if an accused poses a risk to public safety and protection, only the least onerous conditions to address that specific threat should be imposed. Further, such conditions will not be necessary for public protection and safety merely because an accused poses a risk of committing another offence while on bail, unless they pose a “substantial likelihood” of committing an offence that endangers public protection and safety. Any condition imposed to maintain confidence in the administration of justice must be based on a consideration of the combined effect of all the relevant circumstances from the perspective of a reasonable member of the public, especially the four factors recognised by jurisprudence: i. the apparent strength of the prosecution’s case, ii. the gravity of the offence, iii. the circumstances surrounding the commission of the offence, and iv. whether the accused is liable for a potential lengthy term of imprisonment.
The requirement that bail conditions must be tailored to the accused points to a subjective mens rea so that the individual characteristics of the accused will be considered when bail is set and if bail is breached. Requiring a subjective mens rea reinforces, mirrors, and respects the individualized approach mandated for the imposition of bail conditions. In practice, the number of unnecessary and unreasonable bail conditions, and the rising number of breach charges, indicates insufficient individualization of bail conditions. The majority of bail orders include numerous conditions of release which often do not clearly address an individual accused’s risks. A culture of risk aversion contributes to courts applying excessive conditions. The expeditious nature of bail hearings generates a culture of consent which aggravates the lack of restraint in imposing excessive bail conditions and encourages accused persons to agree to onerous terms of release rather than run the risk of detention. Onerous conditions disproportionately impact vulnerable and marginalized populations, including those living in poverty or with addictions or mental illnesses, and Indigenous people. The presence of too many unnecessary, excessive and onerous conditions provides legislative context for finding no clear intention of Parliament to displace the presumed subjective fault standard and illustrates the need for restraint and careful review of bail conditions.
The principle of restraint and the ladder principle require anyone proposing bail conditions to consider what risks might arise if the accused is released without conditions. Only conditions which target the accused’s risk in relation to flight, public protection and safety, or maintaining confidence in the administration of justice are necessary. A bail condition must attenuate a risk that would otherwise prevent release without that condition. Conditions cannot be imposed for gratuitous or punitive purposes and should not be behaviourally-based. They must be sufficiently linked to the defined statutory risks, as narrowly defined as possible to meet their objective, and reasonable. They will only be reasonable if they realistically can and will be met by the accused. They cannot contravene federal or provincial legislation or the Charter, and must be clear, minimally intrusive, and proportionate to any specific risk posed by the accused. The setting of bail is an individualized process and there is no place for standard, routine, or boilerplate conditions, whether bail is contested or the product of consent. Some specific non-enumerated conditions are commonly included in release orders, but must be scrutinized to ensure that each condition is necessary, reasonable, least onerous and sufficiently linked to a risk . All persons involved in the bail system are required to act with restraint and to carefully review bail conditions they propose or impose. The Crown, defence, and the court all have obligations to respect the principles of restraint and review. Ultimately, the obligation to ensure appropriate bail orders lies with the judicial official. These obligations carry over to consent releases. Judicial officials should not routinely second-guess joint proposals by counsel, however, they have the discretion to reject overbroad proposals and must act with caution when reviewing and approving consent release orders.
Subjective mens rea can be satisfied where the prosecution proves: (1) the accused had knowledge of the conditions of their bail order or were wilfully blind to those conditions; and (2) either the accused knowingly failed to act according to the bail conditions or they were wilfully blind to those circumstances and failed to comply despite that knowledge, or the accused recklessly failed to act according to the conditions, meaning they perceived a substantial and unjustified risk that their conduct would likely fail to comply with the conditions and persisted in this conduct. Genuinely forgetting a condition could be a mistake of fact and would negate mens rea. The accused need not have knowledge of the legal consequences or scope of their condition, but they must know that they are bound by the condition. Knowledge in the second component of the mens rea means that the accused must be aware of, or be wilfully blind to, the factual circumstances requiring them to act or refrain from acting. The second component of the mens rea can also be met by showing that the accused was reckless. Knowledge of risk is key to recklessness — the accused must know of their bail conditions and the risk of factual circumstances arising that would require them to act (or refrain from acting) to comply with their bail conditions. Recklessness is a subjective standard and the accused must be aware that their conduct created a substantial risk of non-compliance with their bail conditions and aware of any factors that contributed to that risk being unjustified.
When individuals are charged with a crime, they are presumed innocent and have the right not to be denied reasonable bail without just cause. Most accused are not held in custody between the date of the charge and the time of trial and the law typically requires that the accused be released on what is known as “bail”.  Accused who are not released from custody by the police will be brought before a judge  for a bail hearing. For most crimes, the default form of bail is to release accused persons based on an undertaking to attend trial, without any conditions restricting their activities or actions. However, conditions of release can be imposed if the Crown satisfies the judicial official that particular restrictions are required to secure the accused’s attendance in court, ensure the protection or safety of the public, or maintain confidence in the administration of justice.
Some jurisdiction made it a separate criminal offence to breach bail conditions under. This is a crime against the administration of justice and carries a maximum penalty of two years’ imprisonment. Accused persons may therefore be subject to imprisonment if they breach a condition of their bail, even if they are never ultimately convicted of any of the crimes for which they were initially charged. In many cases, an accused person faces criminal sanctions for conduct which, but for the stipulated bail condition, would be a lawful exercise of personal freedom. As the gravamen of the offence is a failure to comply with a court order, there is often no victim, no violence, or no direct harm to the public or property.
The Prosecution is required to prove subjective mens rea and no lesser form of fault will suffice. Normally the Prosecution must establish that the accused committed the breach knowingly or recklessly.
Nothing can displace the presumption that Parliament intended to require a subjective mens rea. Further, this intention is supported by jurisprudence on the interpretation of the breach of probation offence, the consequences of charges and convictions, the role within the constitutional and legislative scheme of bail, and the practical operation of the bail system.
All those involved in the bail system are to be guided by the principles of restraint and review when imposing or enforcing bail conditions. The principle of restraint requires any conditions of bail to be clearly articulated, minimal in number, necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention. The principle of review requires everyone, and especially judicial officials, to carefully scrutinize bail conditions at the release stage whether the bail is contested or is on consent. Most bail conditions restrict the liberty of a person who is presumed innocent. Breach can lead to serious legal consequences for the accused and the large number of breach charges has important implications for the already over-burdened justice system. Before transforming bail conditions into personal sources of potential criminal liability, judicial officials should be alive to possible problems with the conditions. Requiring subjective mens rea to affix criminal liability reflects the principles of restraint and review and mirrors the individualized approach mandated for the imposition of bail conditions.
From a constitutional perspective, most bail conditions restrict the liberty of persons who are presumed innocent and impose a risk of further criminal liability on those persons because of the failure to comply offence. Therefore, the setting of bail conditions must be consistent with the presumption of innocence and the right not to be denied reasonable bail without just cause.
The presumption of innocence is “a hallowed principle lying at the very heart of criminal law. . . . that confirms our faith in humankind”. The presumption of innocence and the protection of liberty rights mean that “the state should presume each person to be harmless . . . therefore it is in principle wrong to take coercive measures against people for preventive reasons unless there are very strong justifications for doing so”. It is therefore prudent to protects accused persons from unreasonable terms and conditions of bail. The jurisprudence mandates that judicial officials respect the ladder principle, meaning that they must consider release with fewer and less onerous conditions before release on more onerous ones.The ladder principle applies to conditions of release just as it applies to forms of release. There is a link between the ladder principle and the number and content of bail conditions. Without a restrained approach to bail conditions, a less onerous form of bail, such as an undertaking with conditions, can become just as or more onerous than other steps up the bail ladder or, in some cases, even more restrictive than conditional sentence and probation orders issued after conviction.
Only conditions that are specifically tailored to the individual circumstances of the accused can meet these criteria. Bail conditions are thus intended to be particularized standards of behavior designed to curtail statutorily identified risks posed by a particular person. They are to be imposed with restraint not only because they limit the liberty of someone who is presumed innocent of the underlying offence. In effect, each imposed bail condition creates a new source of potential criminal liability personal to that individual accused.
It is to be asked whether the mens rea is subjective or objective. A subjective fault standard would focus on what was in the accused’s mind at the time they breached their bail condition. It directs a court to consider whether the accused “actually intended, knew or foresaw the consequence and/or circumstance as the case may be. Whether they ‘could’, ‘ought’ or ‘should’ have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability”. In applying a subjective mens rea, courts can consider personal circumstances and challenges of the accused in a manner which mirrors the individualized manner in which bail conditions are to be imposed.
Under objective mens rea, the question would be whether the accused’s behaviour was a marked departure from the behaviour of a reasonable person subject to the accused’s bail conditions. The standard is based on what the reasonable person would know or do or have foreseen in the circumstances and it does not matter if the accused does not know they were breaching their condition.
Conditions must be clear, minimally intrusive, and proportionate to any risk. Conditions will also only be reasonable if they realistically can and will be met by the accused, as “requiring the accused to perform the impossible is simply another means of denying judicial interim release” by setting them up to fail, as well as adding the risk that the accused will be criminally charged for failing to comply. Removing an unreasonable condition will not cause any more risk to the community than imposing a condition that is impossible for the accused to respect. Reasonable conditions also must not limit the Charter rights of an accused, such as their freedom of expression or association, unless that condition is reasonably connected and necessary to address the accused’s risk of absconding, harming public safety, or causing loss of confidence in the administration of justice.
Bail revocation was the process designed for determining whether a person’s risk factors are such that their failure to abide by bail conditions means they ought to be detained rather than released on different conditions. Revocation can therefore address negligent and careless breaches of bail conditions without creating additional criminal liability. While revocation carries the threat of detention and should be sought only when the negative impacts that can arise from detention are justified, it can address risks arising from breaches of bail conditions without adding offences against the administration of justice to the criminal record of the accused.
All persons involved in the bail system are required to act with restraint and to carefully review what bail conditions they either propose or impose. Restraint is required by law, is at the core of the ladder principle, and is reinforced by the requirement that any bail condition must be necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the specific statutory risk factors under s. 515(10) of risk of failing to attend a court date, risk to public protection and safety, or risk of loss of confidence in the administration of justice. The setting of bail is an individualized process and there is no place for standard, routine, or boilerplate conditions, whether the bail is contested or is the product of consent. The principle of review means everyone involved in the crafting of conditions of bail should stop to consider whether the relevant condition meets all constitutional, legislative, and jurisprudential requirements.
All participants in the bail system also have a duty to uphold the presumption of innocence and the right to reasonable bail is our thesis.
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