Libération avec ou sans caution et dépôt

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General Principles

Guarantees of Section 11(e)

Section 11(e) guarantees two rights. Those are the "right not to be denied bail without just cause" and "the right to bail on reasonable terms."

The right to bail is a "corollary to the presumption of innocence."

Statutory Principles

515
[omis (1) and (2)]

Imposition of least onerous form of release

(2.01) The justice shall not make an order containing the conditions referred to in one of the paragraphs (2)(b) to (e) unless the prosecution shows cause why an order containing the conditions referred to in the preceding paragraphs for any less onerous form of release would be inadequate.

Promise to pay favoured over deposit

(2.02) The justice shall favour a promise to pay an amount over the deposit of an amount of money if the accused or the surety, if applicable, has reasonably recoverable assets.

Restraint in use of surety

(2.03) For greater certainty, before making an order requiring that the accused have a surety, the justice shall be satisfied that this requirement is the least onerous form of release possible for the accused in the circumstances.

Power of justice — sureties

(2.1) If, under subsection (2) [ordonnance de mise en liberté avec conditions] or any other provision of this Act, a judge, justice or court makes a release order with a requirement for sureties, the judge, justice or court may name particular persons as sureties.

[omis (2.2), (2.3), (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3), (5), (6), (6.1), (7), (8), (9), (9.1), (10), (11), (12), (13) and (14)]

R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20; 2018, c. 16, s. 218; 2019, c. 25, s. 225; 2021, c. 27, s. 4; 2022, c. 17, s. 32(E); 2023, c. 7, s. 1.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Ladder Principle

The common law "ladder principle" of bail was codified in s. 515(3). It prohibits the imposition of a "more onerous form of release unless the Crown shows why a less onerous form is inappropriate."

Default Release

The default position on all bail matters, with some exception, under s. 515(1) is for the "unconditional release on an undertaking."

Strict Application of Ladder Principle

Where the default unconditional release does not apply, the "ladder principle" must be "strictly" followed.

Must Release at Earliest Reasonable Opportunity

The ladder principle also states that "release is favoured at the earliest reasonable opportunity."

Burden

Whenever the Crown seeks to impose conditions or more onerous forms of release beyond an undertaking, it must "show why this form is necessary."

The burden of proof will increase where the conditions becomes more onerous upon the accused.

Standard of Proof

A restrictive condition can only be imposed where "the Crown has shown it to be necessary having regard to the statutory criteria for detention."

Analysis

To comply with the "ladder principle" the judge imposing conditions must reject each form of less restrictive release before they may consider any further restriction. Failure to reject a lesser form of release is an error of law.

Ladder Principle In Consent Releases

The principles and guidelines for bail as set out by case law "do[es] not apply strictly to consent release plans."

The judge has discretion to reject a joint proposal on release, however should not "routinely second-guess" them.

Enabling Release Conditions

Section 515(2) permits the judge release the accused on either an undertaking (515(2)(a)) or a recognizance with conditions (515(2)(b) to (e)).

515
[omis (1)]

Release order with conditions

(2) If the justice does not make an order under subsection (1) [ordonnance de mise en liberté sans conditions], the justice shall, unless the prosecutor shows cause why the detention of the accused is justified, make a release order that sets out the conditions directed by the justice under subsection (4) [conditions admissibles dans l'ordonnance de mise en liberté] and, as the case may be,

(a) an indication that the release order does not include any financial obligations;

(b) the accused’s promise to pay a specified amount if they fail to comply with a condition of the order;

(c) the obligation to have one or more sureties, with or without the accused’s promise to pay a specified amount if they fail to comply with a condition of the order;

(d) the obligation to deposit money or other valuable security in a specified amount or value, with or without the accused’s promise to pay a specified amount if they fail to comply with a condition of the order; or

(e) if the accused is not ordinarily resident in the province in which they are in custody or does not ordinarily reside within 200 kilometres of the place* in which they are in custody, the obligation to deposit money or other valuable security in a specified amount or value, with or without the accused’s promise to pay a specified amount by the justice if they fail to comply with a condition of the order and with or without sureties.

[omis (2.01), (2.02), (2.03), (2.1), (2.2), (2.3), (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3), (5), (6), (6.1), (7), (8), (9), (9.1), (10), (11), (12), (13) and (14)]
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20; 2018, c. 16, s. 218; 2019, c. 25, s. 225; 2021, c. 27, s. 4; 2022, c. 17, s. 32(E); 2023, c. 7, s. 1.
[annotation(s) ajoutée(s)] [* see "Constitution", below]

– CCC (CanLII), (Jus.)

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An accused can be released in the following circumstances:

• personal undertaking without conditions (515(1))
• personal undertaking with conditions (515(2)(a))
• recognizance with conditions and without surety or deposit (515(2)(b))
• recognizance with conditions and with surety without deposit(515(2)(c))
• recognizance with conditions without surety with deposit (515(2)(d))
• recognizance with conditions with surety and deposit (515(2)(e))

These options are listed in order of escalating risk.

Recognizance With Conditions and Without Surety or Deposit (515(2)(b)

A recognizance is "functionally equivalent" to cash bail.

Recognizance With Surety (515(2)(c))

A surety takes on the role of "civilian jailer of the accused". They are responsible to ensure the accused's attendance at court and ensure they abide by their conditions. The public interest and its faith in the bail system requires them to act promptly and faithfully in their duties.

Sureties

A recognizance with a surety is "one of the most onerous forms of release" and must be considered last after rejecting all other forms of release.

A recognizance is "functionally equivalent" to cash bail.

With Deposit (515(2)(d))

Cash bail should only be applied in "exceptional circumstances" where a surety is unavailable.

The purpose of 515(2)(d) has been described as adding "some flexibility into this situation by permitting an accused with some personal resources to gain his/her own release."

Section 515(2)(d) has been read down to exclude the phrase, "with the consent of the prosecutor", allowing the judge to release the accused on cash bail.

Cash Bail

Cash bail should not be imposed where the accused or their surety "have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release." It should only be imposed in "exceptional circumstances" where "release on a recognizance with sureties is unavailable."

Cash bail is considered one of the "most onerous" rungs of the ladder.

Cash bail is considered "merely a limited alternative to a pledge" which should not be used where the accused or sureties have "reasonably recoverable assets to pledge."

Amount of Cash

The amount set for cash bail must be "no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate means of the accused nad the circumstances of the case." It should not be set so high as to effectively amount to a detention order.

Obligation to Inquire into Ability to Pay

Where the court imposes cash bail, the court must inquire into the accused's ability to pay. The cash bail order cannot be "set so high that it effectively amounts to a detention order."

With Surety and Deposit (515(2)(e))

The circumstances described in s. 515(2)(e) is the only case where the accused can be released with both a surety and cash deposit. This form of release is designed to be the most secure as it requires both forms of commitment.

Constitution

The part of this section that reads "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" has been found constitutional and does not s. 11(e) of the Charter.

Assignment of Funds

The funds held as cash deposit for bail cannot be assigned to legal counsel pay for fees.

Procedure

It is not always necessary to have the surety to appear in court.

The surety and accused continue to be bound by the recognizance after every court appearance until the completion of the matter.

Naming Surety on Order

515
[omis (1), (2), (2.01), (2.02) and (2.03)]

Power of justice — sureties

(2.1) If, under subsection (2) [ordonnance de mise en liberté avec conditions] or any other provision of this Act, a judge, justice or court makes a release order with a requirement for sureties, the judge, justice or court may name particular persons as sureties.
[omis (2.2), (2.3), (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3), (5), (6), (6.1), (7), (8), (9), (9.1), (10), (11), (12), (13) and (14)]
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20; 2018, c. 16, s. 218; 2019, c. 25, s. 225; 2021, c. 27, s. 4; 2022, c. 17, s. 32(E); 2023, c. 7, s. 1.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Video Appearance Permitted

515
[omis (1), (2), (2.01), (2.02), (2.03) and (2.1)]

Appearance of the accused

(2.‍2) If, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the accused shall appear in person but the justice may allow the accused to appear by videoconference or, subject to subsection (2.‍3) [lorsque le consentement est requis pour une audioconférence], by audioconference, if the technological means is satisfactory to the justice.

When consent required for audioconference

(2.3) If the accused cannot appear by closed-circuit television or videoconference and the evidence of a witness is to be taken at the appearance, the consent of the prosecutor and the accused is required for the appearance of the accused by audioconference.

Factors to consider

(3) In making an order under this section, the justice shall consider any relevant factors, including,

(a) whether the accused is charged with an offence in the commission of which violence was used, threatened or attempted against their intimate partner; or

(b) whether the accused has been previously convicted of a criminal offence, including any offence in the commission of which violence was used, threatened or attempted against any person.

[omis (4), (4.1), (4.11), (4.12), (4.2), (4.3), (5), (6), (6.1), (7), (8), (9), (9.1), (10), (11), (12), (13) and (14)]
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20; 2018, c. 16, s. 218; 2019, c. 25, s. 225; 2021, c. 27, s. 4; 2022, c. 17, s. 32(E); 2023, c. 7, s. 1; 2023, c. 30, s. 1.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Amount of Deposit

Under s. 515(2)(d), a cash bail can be required from the accused. It may only be returned to the accused who deposited.

The "test for financial security is whether the pledge will bind the conscience of the surety and the accused." This is irrespective of whether the amount would cause "mere hardship and loss" or "total financial calamity."

The constitutional right to bail requires that the amount of security needed for bail should not "be set so high as to amount to a detention order." The bail judge has an obligation to make inquiries "into the ability of the accused to pay."

Surety

A surety is a person who pledges to take responsibility to supervise the accused in the community.

Declaration of surety

515.1 (1) Before a judge, justice or court names a particular person as a surety, the person shall provide the judge, justice or court with a signed declaration under oath, solemn declaration or solemn affirmation in Form 12 [formes] that sets out

(a) their name, date of birth and contact information;

(b) information demonstrating that they are suitable to act as a surety for the accused, including financial information;

(c) their relationship to the accused;

(d) the name and date of birth of any other accused for whom they act as a surety;

(e) their acknowledgment of the charge, and of any other outstanding charges against the accused and the contents of the accused’s criminal record, if any;

(f) their acknowledgment of the amount that they are willing to promise to pay or deposit to the court and that may be forfeited if the accused fails to comply with any condition of the release order;

(g) their acknowledgment that they understand the role and responsibilities of a surety and that they assume these voluntarily; and

(h) a description of the contents of their criminal record and any outstanding charges against them, if any.

Exception

(2) Despite subsection (1) [déclaration de caution], a judge, justice or court may name a person as a surety without a declaration if

(a) the prosecutor consents to it; or

(b) the judge, justice or court is satisfied that

(i) the person cannot reasonably provide a declaration in the circumstances,

(ii) the judge, justice or court has received sufficient information of the kind that would be set out in a declaration to evaluate whether the person is suitable to act as a surety for the accused, and

(iii) the person has acknowleged that they have received sufficient information with respect to the matters referred to in paragraphs (1)(e) to (g) to accept the role and responsibilities of a surety.

Means of telecommunication

(3) A person may provide the judge, justice or court with the declaration referred to in subsection (1) [déclaration de caution] by a means of telecommunication that produces a writing.

1997, c. 18, s. 60; 2019, c. 25, s. 226.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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A surety has the obligations of a jailer in the community and is responsible for ensuring that the accused appears in court when required and abides by his conditions. The surety must exercise "utmost due diligence" and take "all reasonable steps" to live up to their responsibilities.

It will usually be a relative, friend, or neighbour of the accused. Generally, it should not be someone who is:

• someone with a criminal record,
• a co-accused in a outstanding charge, or has unrelated criminal charges
• a person not resident in the jurisdiction,
• underage
• acting as a surety for someone else,
• receiving financial compensation for being a surety

The surety is to render the accused back into the custody of the court once he has lost ability or desire to control the accused compliance with the conditions of release.

Undertaking or release order binding on accused

764 (1) If an accused is bound by an undertaking or release order to appear for trial, their arraignment or conviction does not cancel the undertaking or release order, and it continues to bind them and their sureties for their appearance until the accused is discharged or sentenced, as the case may be.

Committal or new sureties

(2) Despite subsection (1) [responsabilité des cautions], the court, provincial court judge or justice may commit an accused to prison or may require them to furnish new or additional sureties for their appearance until the accused is discharged or sentenced, as the case may be.

Effect of committal

(3) The sureties of an accused who is bound by a release order to appear for trial are discharged if the accused is committed to prison under subsection (2) [le tribunal peut ordonner la détention ou ordonner des cautions supplémentaires après condamnation].

Summary of certain provisions

(4) A summary of subsections (1) to (3) must be set out in any undertaking or release order.

R.S., 1985, c. C-46, s. 764; R.S., 1985, c. 27 (1st Supp.), s. 203; 2019, c. 25, s. 310.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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See R c Scosky, 1955 CanLII 463 (BC SC), (1955) 114 CCC 294, par Sasrget J

Delegating Responsibilities

A surety may not delegate any part of their responsibilities to anyone else.

Rendering Surety

Where a surety no longer wishes to be responsible as a surety for the accused, he may render surety under s. 766(1) and 767 to have the accused rendered into custody thus relieving him of his obligations.

The surety ceases to be bound once the accused in committed into custody by s. 764(2).

Render of accused by sureties

766 (1) A surety for a person who is subject to a release order or recognizance may, by an application in writing to a court, provincial court judge or justice, apply to be relieved of their obligation under the release order or recognizance, and the court, provincial court judge or justice shall then make an order in writing for committal of that person to the prison named in that order.

Arrest

(2) An order issued by a court, provincial court judge or justice under subsection (1) [déclaration de l'accusé par les cautions] must be given to the surety and, on receipt of it, the surety or any peace officer may arrest the person named in the order and deliver that person with the order to the keeper of the prison named in the order, and the keeper shall receive and imprison that person until the person is discharged according to law.

Certificate and entry of render

(3) If a court, provincial court judge or justice issues an order under subsection (1) [déclaration de l'accusé par les cautions] and receives from the sheriff a certificate that the person named in the order has been committed to prison under subsection (2) [déclaration de l'accusé par les cautions – mandat d'arrêt], the court, provincial court judge or justice shall order an entry of the committal to be endorsed on the release order or recognizance, as the case may be.

Discharge of sureties

(4) An endorsement under subsection (3) [procédure de déclaration par les cautions] cancels the release order or recognizance, as the case may be, and discharges the sureties.

R.S., 1985, c. C-46, s. 766; R.S., 1985, c. 27 (1st Supp.), s. 203; 2019, c. 25, s. 310.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Render of accused in court by sureties

767 A surety for a person who is subject to a release order or recognizance may bring that person before the court where the person is required to appear or where the person entered into the recognizance at any time during the sittings of that court and before the person’s trial, and the surety may discharge their obligation under the release order or recognizance by giving that person into the custody of the court. The court shall then commit that person to prison until the person is discharged according to law.

00R.S., c. C-34, s. 701; 2019, c. 25, s. 310.

– CCC (CanLII), (Jus.)

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When a surety renders under s. 766 or 767 and the accused is then committed to prison under s. 767(2), only then is the recognizance vacated and the surety completely discharged. In this circumstance, s. 767.1 does not apply and would not permit re-release with a new surety under the same terms.

Rights of surety preserved

768 Nothing in this Part [Pt. XXV – Effet et mise à exécution des promesses, ordonnances de mise en liberté et engagements (ss. 762 à 773)] limits any right that a surety has of taking and giving into custody any person for whom they are a surety under a release order or recognizance.

R.S., c. C-34, s. 702; 2019, c. 25, s. 310.

– CCC (CanLII), (Jus.)

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Application of judicial interim release provisions

769. Where a surety for a person has rendered him into custody and that person has been committed to prison, the provisions of Parts XVI [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)], XXI [Pt. XXI – Appels – actes criminels (art. 673 à 696)] and XXVII [Pt. XXVII – Déclarations de culpabilité par procédure sommaire (art. 785 à 840)] relating to judicial interim release apply, with such modifications as the circumstances require, in respect of him and he shall forthwith be taken before a justice or judge as an accused charged with an offence or as an appellant, as the case may be, for the purposes of those provisions.
R.S., c. C-34, s. 703; R.S., c. 2(2nd Supp.), s. 14.

– CCC (CanLII), (Jus.)

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After the surety has rendered and the accused is taken back into custody, s. 769 requires a new bail hearing for any future release.

Change of Surety

Where a surety no longer wishes to be responsible as a surety for the accused and there is a suitable substitution available, the surety will render surety under s. 766(1) and 767, but rather than render the accused into custody, the court may substitute the previous surety with a new one under s. 767.1. The new surety is in place once he has signed the recognizance.

Substitution of surety

767.1 (1) If a surety for a person who is subject to a release order or recognizance has given the person into the custody of a court under section 767 [déclaration de l'accusé au tribunal par les cautions], or a surety applies to be relieved of their obligation under the release order or recognizance under subsection 766(1) [déclaration de l'accusé par les cautions], the court, justice or provincial court judge, as the case may be, may, instead of committing or issuing an order for the committal of the person to prison, substitute any other suitable person for the surety under the release order or recognizance.

Signing of release order or recognizance by new sureties

(2) If a person substituted for a surety under a release order or recognizance under subsection (1) [substitution de caution] signs the release order or recognizance, the original surety is discharged, but the release order or recognizance is not otherwise affected.

R.S., 1985, c. 27 (1st Supp.), s. 167; 2019, c. 25, s. 310.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Continuation of Recognizance

Undertaking or release order binding on person

763 (1) If a person is bound by an undertaking, release order or recognizance to appear before a court, provincial court judge or justice for any purpose and the session or sittings of that court or the proceedings are adjourned or an order is made changing the place of trial, that person and their sureties continue to be bound by the undertaking, release order or recognizance as if it had been entered into or issued with respect to the resumed proceedings or the trial at the time and place at which the proceedings are ordered to be resumed or the trial is ordered to be held.

Summary of certain provisions

(2) A summary of section 763 [promesse ou ordonnance de mise en liberté exécutoire] must be set out in any undertaking, release order or recognizance.

R.S., 1985, c. C-46, s. 763; R.S., 1985, c. 27 (1st Supp.), s. 203; 2019, c. 25, s. 310.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Effect of Arrest on New Charges

An arrest on new charges does not affect the recognizance, including the obligations of the surety:

Effect of subsequent arrest

765 If an accused is bound by an undertaking or a release order to appear for trial, their arrest on another charge does not cancel the undertaking or release order, and it continues to bind them and their sureties for their appearance until the accused is discharged or sentenced, as the case may be, in respect of the offence to which the undertaking or release order relates.
R.S., c. C-34, s. 699; 2019, c. 25, s. 310.

– CCC (CanLII), (Jus.)

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See Also

• Breach of Release Conditions
• Estraitement de l'engagement
• Bail Checklist
• Release With and Without Sureties and Deposits (Until December 18, 2019)