Amendments to the Canadian Bail Hearing: Bill C-75 and COVID-19

Par Jeremy van Doorn, avocat et Jasmine Razavi, McGill University law student et Genevieve Shemie, McGill University law student

with the collaboration of Jeremy van Doorn, counsel

Passed in June 2019 and implemented gradually ever since, Bill C-75 amended the Criminal Code in a way that impacts the state of the Canadian bail hearing.[1] Bail hearings require delicacy; judges must draw the balance between protecting the rights of the accused, while ensuring the safety of the public, the accused’s presence at trial and the confidence in the administration of justice. Release is the default, unconditionally or otherwise, unless the prosecution can demonstrate the necessity of pre-trial detention on one of the three grounds. In the face of the COVID-19 pandemic, these interests become more difficult to weigh when public and individual health are considered. This article discusses the correspondence between the bail hearing jurisprudence and Bill C-75’s amendments in the context of COVID-19.

Judicial History

The state of the bail hearing in Canada is grounded in a trilogy of cases: R v. St-Cloud (2015), R v. Antic (2017) and R v. Myers (2019).[2] Most recently reiterated in R v. Zora (2020)[3], these cases established the philosophical underpinnings of Canadian bail hearings. They thus provide a framework to assess the consistency of Bill C-75’s amendments.

In St-Cloud, the Supreme Court of Canada wrote that the protection of the public and the maintenance of confidence in the administration of justice were respectively sufficient to justify pre-trial detention.[4] The application of section 515(10)(c) of the Criminal Code was thus broadened beyond the most heinous crimes; detention in rare cases was said to be a consequence of application, not a precondition. This case emphasized the interest of protecting the public — it had little to do with the rights and freedoms of the accused.

The accused in Antic challenged the constitutionality of section 515(2)(e) of the Criminal Code for violating the right to reasonable bail under section 11(e) of the Canadian Charter of Rights and Freedoms.[5] The Supreme Court emphasized the importance of the presumption of innocence entrenched in section 11(e) of the Charter[6] — the Court articulated the “ladder principle”, favouring release at the earliest reasonable opportunity and on the least onerous grounds.[7] The default ought to be unconditional release, placing the onus on the Crown to demonstrate otherwise.[8]

In Myers, the accused sought the 90-day bail review process under section 525 of the Criminal Code, but eventually plead guilty to reduced counts.[9] The Supreme Court exercised its discretion to hear the case despite its mootness, to clarify the correct approach to detention.[10] The Court followed the reasoning in Antic: the pretrial release of the accused persons is the cardinal rule and detention, the exception.[11]

Most recently, the Supreme Court reiterated the ladder principle in Zora.[12] The Court noted the need to build upon Antic to provide guidance on non-monetary bail conditions and the consequences of their breach[13]; the accused in Zora was charged under section 145(3) of the Criminal Code with two counts of breaching curfew and two counts of breaching the condition to answer the door.[14] Given the direct relationship between the imposition of conditions and their criminalized breaches, Justice Martin addressed the appropriateness of common, non-enumerated, conditions for bail.[15] She wrote that stipulations such as drug abstinence, rehabilitative behavioural requirements and “red zone” conditions can create perverse consequences on the Charter rights of the accused — judges must rigorously assess whether such a restriction is justified and proportional to the risk posed by the accused.[16] Release conditions must be reasonable and realistically attainable by the specific accused, otherwise it is merely another means of denying release.[17] A special attention must be given by the Courts to Indigenous offenders, as was previously stated in Antic and modifications of the Criminal Code.[18]

Bill C-75 Amendments

Coming into force on June 21, 2019, Bill C-75 changed the Canadian Criminal Code’s approach to bail hearings.[19] The amendments are seemingly consistent with the principles articulated in Antic and Myers — notably, sections 515(1) to 515(2.1) of the Code now include the ladder principle.[20] Section 513(3) Cr. C. also addresses the detention of the accused in specific contexts, such as those involving intimate partner violence.[21]

The Code now affirms that the least restrictive order of release is the default. Section 515(1) Cr. C. provides that conditions can only be imposed where the prosecution shows cause.[22] Section 515(2.01) of the Code follows the case law: courts ought to impose the least onerous form of release.[23] Then, the severity of the conditions of release are gradually increased, until the accused requires detainment according to section 515(5) Cr. C..[24] In this way, Bill C-75 acknowledges the rights of the accused by entrenching the ladder principle in the Code.

Importantly, section 515(3) Cr. C. enumerates violence against an intimate partner and previous conviction of a criminal offence as factors that must be taken into consideration during the bail hearing.[25] The new section 515(6)(b.1) Cr. C. reverses the burden of proof and imposes an automatic detention of the accused, requiring the defendant to justify release.[26] However, omitted common law aggravating factors still include criminal harassment, intimidation of a justice system participant, the possession and use of firearms or other types of arms, and factors relating to the possession of drugs. Bill C-75 is nonetheless progress toward the broader consideration of victim protection in bail hearings.

Response to Bill C-75

The adoption of Bill C-75 was inevitably met with concerns: a member of the House of Commons suggested that the provisions regarding bail may be too lenient and encourage recidivism.[27] Similarly, a member of the Senate noted the lack of victim consultation and the potential risk to the public.[28] However, the amendments condemning violence against an intimate partner were generally viewed favourably in the House of Commons.

Particular concern was raised regarding the implications on Indigenous overrepresentation, as partner violence is an unfortunate legacy of residential schools.[29] Amendments to section 493.2 of the Code, as well as Gladue considerations, attempt to mitigate this issue. The Supreme Court of Canada in R. v. Gladue wrote the circumstance of Indigenous peoples in Canada must be considered at sentencing.[30] Statutory amendments after Gladue added the principle of restraint to bail for Indigenous offenders, ensuring an accused is released at the earliest possible time and subject to the least onerous conditions.[31] These provisions, while passed to protect the rights of the accused under section 11(c) of the Charter, also acknowledge the issue of court clogging, causing unreasonable delays and overpopulated prisons.[32]

While Gladue dealt with a question of sentencing, Justice Phillips of the Provincial Court of British Columbia applied its principles to bail hearings.[33] In R. v. Gibbs, Justice Phillips stated that section 493.2 of the Code includes “vulnerable and disadvantaged accused, including racialized populations, the homeless, the poor, or those suffering from mental illness or addiction.”[34] Similarly, the Court of Québec considered the socioeconomic context of Indigenous offenders in both R. c. Dubé and R. c. Quannaaluk.[35] The Court in Quannaaluk applied the teachings of the Supreme Court in Gladue to mitigate the sentence of the accused, focusing on rehabilitative measures instead of incarceration.[36] Later, the Court in Dubé accepted evidence that many imposed orders are impossible to comply with in the Indigenous reality: housing shortages, generalized issue of alcohol and drug consumption, lack of therapeutic resources, etc.[37] In making a bail decision, a judge ought to especially consider the situation of indigenous individuals, with the objective of dismantling the “revolving door” of systemic and racial discrimination.[38]

Bill C-75 amendments are, on their face, consistent with the jurisprudence. The incorporation of the ladder principle in sections 515(1) to 515(2.1) of the Code emphasizes the rights of the accused; this is further bolstered when given particular consideration to Indigenous offenders. Moreover, the protection of domestic abuse victims has been importantly acknowledged by sections 515(3)(a) and section 515(6)(b.1) of the Code. Concerns raised by the House and the Senate with respect to recidivism and public safety nonetheless remain — and become confounded by a pandemic.

COVID-19

Along with the rest of the world, the judicial system has been struck by COVID-19. Remote measures have finally been integrated into the traditional court process, changing the way we practice criminal law: telephone and video-link judicial pretrial and case management, video-link oath swearing, and, importantly, remote bail hearings.[39] As such, Québec courts have acknowledged the pandemic as pertinent consideration in all three grounds for detention set out in section 515(10) of the Criminal Code.[40]

The Superior Court of Québec in Couture c. R. emphasized, however, the pandemic should not disrupt the analysis altogether; those who pose a substantial risk to public safety cannot be released on the sole basis that detention may pose an increased risk to them.[41] While the risk of COVID-19 outbreaks in prisons are very real, deference is owed to correctional authorities responsible for their maintenance: “l’état de santé de l’accusé n’a pas d’impact sur la détermination de la peine qui doit être imposée sauf « [l]orsque les services carcéraux ne sont pas en mesure de répondre au besoin particulier qu’engendre l’état de santé d’un délinquant »”.[42] In R. c. Videz-Rauda, the Court noted the pandemic will rarely be a single determining factor in justifying release.[43]

Accordingly, in R. c. Kadoura, the Court cites Justice Pennou stating that the pandemic is a factor that can affect the granting of bail where there is known contagion reported by the prison authorities or where the accused is particularly at risk — the defendant must submit evidence of this nature.[44] In Kadoura’s case, there was no evidence presented that he was at a significantly higher risk of contracting COVID-19.[45] In Couture, the Court dismissed the review of the detention order based on evidence from the Director of Professional Services at the Établissement de détention de Québec that submitted no person had tested positive for the virus, as well as an account of the safety measures implemented (e.g. two week quarantine for new arrivals, suspended visits, suspension of support groups, limited facility transfers, video-conferencing, protective equipment).[46]

In the case of Brown c. R., the Superior Court of Québec reviewed the pretrial detention order to consider the particular vulnerability of the accused.[47] While the Court accepted evidence of Brown’s pulmonary issues and of the COVID-19 outbreak at his institution, his charges and criminal record relating to sexual crimes against children posed an active danger to the public.[48] The Court upheld his detainment, supported by the institution’s mitigation of the outbreak and an adequate access to health services, despite his health concerns.[49]

It is thus not sufficient to raise the possibility of contracting COVID-19 as the sole ground for release.[50] The accused must provide evidence of unjust exposure in detention that outweighs the risk to public safety, the administration of justice, or presence at trial: unmitigated institutional outbreaks and/or heightened vulnerability of risk of the accused.

Conclusion

Due to their novelty, Bill C-75’s amendments to the Criminal Code have yet to demonstrate their large-scale impact. On their face, the changes are informed by recommendations of the Supreme Court of Canada and doctrinal critiques of the inadequacies of our criminal justice system. Some questions nonetheless remain: To what extent will the ladder principle change how judges treat bail hearings? What is the meaning of section 493.2 of the Code and who should it accommodate? Will common law aggravating factors be consistently considered? Will Bill C-75 effectively address court clogging and overpopulated prisons?

The unforeseeable circumstance of COVID-19 has further convoluted the discussion of pretrial detention. While the pandemic is not a standalone ground to justify release, it poses a novel risk to detainees. What standard of deference is owed to correctional authorities tasked with reporting outbreaks? What is the standard of evidence required for an accused to review or avoid detention on the basis of outbreak or illness? Will the usage of sections 515.2 and 515.3 of the Criminal Code, video and audio conferencing become a regular tenet of access to justice in the post-COVID-19 system? If an immunocompromised accused contracts COVID-19 in detainment, what are the liability risks? When deciding the fate of an accused in the pretrial process, it goes without saying that judges must keep the spirit of Bill C-75 in mind.

The law in its entirety may be read here.

This work was prepared separately from Me van Doorn’s employment responsibilities at the Public Prosecution Service of Canada. The views, opinions and conclusions expressed herein are personal to this author and should not be construed as those of the Public Prosecution Service of Canada or the Canadian federal Crown. 

 

[1] Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 2019, Summary (assented to 21st June, 2019) [Bill C-75].

[2] R v. St-Cloud, 2015 SCC 27, [2015] 2 SCR 328; R v. Antic, 2017 SCC 27, [2017] 1 SCR 509; R v. Myers, 2019 SCC 18, [2019] 2 SCR 105.

[3] R v. Zora, 2020 SCC 14.

[4] St-Cloud, at para 87.

[5] R. v. Antic, at para 16.

[6] Ibid at para 66.

[7] Ibid at para 67.

[8] Ibid.

[9] R. v. Myers, at para 13.

[10] Ibid at para 14.

[11] Ibid at para 25.

[12] R. v. Zora at para 83.

[13] Ibid at para 81.

[14] Ibid at para 10.

[15] Ibid at paras 90-97.

[16] Ibid at para 98.

[17] Ibid at para 87.

[18] Ibid at paras 26-28.

[19] Bill C-75, supra note 1 at 225.

[20] Ibid at 225(1).

[21] Ibid at 225(3)-225(6).

[22] Criminal Code, RSC 1985 c C-46 at 515(1).

[23] Ibid at 515(2.01).

[24] Ibid at 515(5).

[25] Ibid at 515(3).

[26] Ibid at 515(6)(b.1).

[27] “Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts”, second reading, House of Commons Debates, 42-1, No 300 (24 May 2018) at 1715 (Mr. Blaine Calkins).

[28] Senate Debate, 42-1, No 275 (2 April 2018) at 1500 (Hon. Pierre-Hugues Boisvenu).

[29] “Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts”, 2nd reading, House of Commons Debates, 42-1, No 300 (24 May 2018) at 1625 (Hon Murray Rankin).

[30] R v. Gladue, 1999 1 SCR 688, at para 93.

[31] Criminal Code at 493.1 and 493.2.

[32] Canada, Department of Justice of Canada, Legislative Background: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament) (Ottawa: JUS, 2019) at 5.

[33]R  v. Gibbs, 2019 BCPC 335 at para 24.

[34] Ibid at para 20.

[35] R. c. Dubé, 2019 QCCQ 7985; R. c. Quannaaluk, 2020 QCCQ 2524.

[36] R. c. Quannaaluk, at paras 71 and 84

[37] Dubé at para 41.

[38] Ibid.

[39] Lisa Mathews, “Bail in the Time of COVID-19” CanLII Authors Program, 2020 CanLIIDocs 564.

[40] R. c. Videz-Rauda, 2020 QCCS 1478, at para 64.

[41] Couture c. R., 2020 QCCS 1201, at para 32.

[42] R. c. Videz-Rauda, at para 71; R. c. Thibault, 2016 QCCA 335, at para 51; R. c. Christie-Sanguinet, 2019 QCCA 2033, at para 24; R. c. Michaud, 2018 QCCA 1804, at para 39; R. v. Drabinsky, 2011 ONCA 582, 274 CCC (3d) 289, at paras 169-170.

[43] R. c. Videz-Rauda at para 67.

[44] R. c. Kadoura, 2020 QCCQ 1455, at paras 73 and 84.

[45] Ibid at paras 147-155.

[46] Couture c. R., at para 29.

[47] Brown c. R., 2020 QCCS 1675.

[48] Ibid at paras 7-10.

[49] Ibid at para 10.

[50] Couture, at para 32.