The Case of R. v. Tunney

The case of R. v. Tunney (linked beneath) began as a routine bail listening to in Newmarket the place Mr. Tunney was launched with each a surety and situations. Later, in November of 2017, Mr. Tunney appeared within the Superior Courtroom to range his bail and search much less onerous situations. Mr. Tunney was granted his requested bail variations, however the authentic situations have been so alarming that Justice Di Luca felt it acceptable to put in writing prolonged causes along with his resolution. The ruling in Tunney stands as a immediate reminder that the Supreme Courtroom’s resolution in R. v. Antic is binding legislation, not a well mannered suggestion.

It’s troublesome to understand the significance of Antic and Tunney, nonetheless, with out understanding the construction of bail process in Canada.

Within the majority of bail hearings, the place the accused just isn’t already on probation or going through a small variety of choose prices underneath part 515(6) of the Prison Code of Canada, the Crown bears the burden of proving that the accused shouldn’t be launched on bail additional to part 515(1). The Crown has three grounds, outlined at part 515(10). These are often called the Major, Secondary, and Tertiary Grounds:

(a) the place the detention is critical to make sure his or her attendance in courtroom with the intention to be handled based on legislation;

(b) the place the detention is critical for the safety or security of the general public, together with any sufferer of or witness to the offence, or any particular person underneath the age of 18 years, having regard to all of the circumstances together with any substantial chance that the accused will, if launched from custody, commit a prison offence or intervene with the administration of justice; and

(c) if the detention is critical to take care of confidence within the administration of justice, having regard to all of the circumstances, together with

             (i) the obvious power of the prosecution’s case,

             (ii) the gravity of the offence,

             (iii) the circumstances surrounding the fee of the offence, together with whether or not a firearm was used, and

             (iv) the truth that the accused is liable, on conviction, for a doubtlessly prolonged time period of imprisonment or, within the case of an offence that entails, or whose subject-matter is, a firearm, a minimal punishment of imprisonment for a time period of three years or extra.

Ought to the Crown search detention of the Accused underneath part 515(1), it bears the onus (topic to the exceptions above) to show that detention is critical. Ought to the Courtroom discover that there will not be compelling causes underneath the Major, Secondary, and Tertiary Grounds for the denial of bail, the Crown could argue for restrictions upon the freedom of the accused upon launch. These restrictions on the type of the accused’s launch are outlined in part 515(2) of the Code, and turn out to be extra restrictive the listing continues:

(2) The place the justice doesn’t make an order underneath subsection (1), he shall, except the prosecutor exhibits trigger why the detention of the accused is justified, order that the accused be launched:

            (a) on his giving an enterprise with such situations because the justice directs;

            (b) on his getting into right into a recognizance earlier than the justice, with out sureties, in such quantity and with such situations, if any, because the justice directs however with out deposit of cash or different helpful safety;

            (c) on his getting into right into a recognizance earlier than the justice with sureties in such quantity and with such situations, if any, because the justice directs however with out deposit of cash or different helpful safety;

            (d) with the consent of the prosecutor, on his getting into right into a recognizance earlier than the justice, with out sureties, in such quantity and with such situations, if any, because the justice directs and on his depositing with the justice such sum of cash or different helpful safety because the justice directs; or

           (e) if the accused just isn’t ordinarily resident within the province through which the accused is in custody or doesn’t ordinarily reside inside 2 hundred kilometres of the place through which he’s in custody, on his getting into right into a recognizance earlier than the justice with or with out sureties in such quantity and with such situations, if any, because the justice directs, and on his depositing with the justice such sum of cash or different helpful safety because the justice directs.

Once more, the Crown bears the burden to point out why a extra restrictive type of launch is justified. In making their arguments for situations upon launch, the Crown should adhere to what’s known as the “Ladder Precept”. This precept dictates that bail courts should presume that an accused needs to be launched on the least restrictive launch plan, their very own recognizance. Every extra restrictive type of launch (every rung of the ladder) should be justified by demonstrating that the prior rung is insufficient.

In 2017, Justice Wagner wrote for a unanimous courtroom in Antic, and reminded all contributors concerned within the bail system that the accused is presumed harmless, state intrusion needs to be as minimal as doable, and any intrusion past the minimal should be justified. Moreover, the Ladder Precept is a central a part of the Canadian legislation of bail and a recognizance with sureties is likely one of the most onerous types of launch, and shouldn’t be imposed except all of the much less onerous kinds have been thought-about and rejected as inappropriate.

Lower than six months after the judgement in Antic was launched, numerous selections revealed that some Crown Attorneys and courts had already forgotten the current Supreme Courtroom resolution and the Ladder Precept. Mr. Tunney’s bail listening to was regrettably one among these selections. On this resolution, the Crown proposed a surety with situations and a financial pledge as their first place. In Tunney, Justice Di Luca identified numerous flaws within the modern software of the bail system, however three stand out.

Firstly, the widespread overuse of sureties has been constantly criticized for delays within the bail system, undermining the presumption of innocence, and undermining the accused’s proper to cheap bail. This reliance has turn out to be “close to computerized” and constructively creates a reverse onus situation the place the accused has to show why a surety isn’t required. Moreover, sureties will not be a prima facie requirement and are explicitly listed decrease on the listing of doable bail situations in part 515(2).

Secondly, courtroom time and assets (whereas the accused is being detained) are being wasted to approve sureties. In lots of areas, Justices of the Peace are in a position to approve sureties by attendance “over-the-counter” or in chambers. These choices are a extra environment friendly use of courtroom assets and extra handy for sureties.

Third, the magistrate brushed Antic apart by distinguishing it “on the info” after noting that defence counsel was “relying closely” on it. In his resolution, Justice Di Luca states that Antic can’t be distinguished on the info and any try to take action misses the purpose. He emphasizes at paragraph 45 that:

“Antic is a binding precedent from the Supreme Courtroom of Canada that should be adopted. It’s a resolution that evaluations and explains the legislation of bail in Canada and seeks to recalibrate the bail course of throughout the nation. Importantly, it reminds all members of the justice system that cheap bail is a constitutional proper and that the Prison Code accommodates a compulsory procedural code that features sure presumptions which are integrals linked with the varied steps of the bail ladder.”

On the finish of the choice, at paragraph 57, Justice Di Luca acknowledges that there’s an inherent consolation in custom and that change is uncomfortable. He then attracts a parallel between Antic and the choice of R. v. Jordan and emphasizes that each name for a change within the tradition of the justice system and that each stand for a transparent message – “we have to do issues in another way.”