The Logical Problems of Justifying Bail on Tertiary Grounds Alone in Canada - B Gray

An accused is considered for bail when the Crown and defence do not agree on release; a judge must then hear their arguments to decide on bail. The starting point for the decision to release on bail is that the accused ought to be released with no conditions unless proven to fulfill one of three criteria.[1]

The Crown must demonstrate that release is ill-advised by showing that, (1) there is a risk that the accused will not attend court, (2) there is a risk of harm to public protection and safety, or (3) there would be a loss of public confidence in the administration of justice.[2] An accused can be denied bail for any combination of these factors. This third criterion, often considered the tertiary ground of bail, requires that the accused's detention be ordered if necessary to maintain the public’s confidence in the administration of justice.

The Supreme Court of Canada (SCC) in R. v. St-Cloud determined in detail what the “public” means in this context and arrived at the following definition of a person who represents the public: “[they are] a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society's fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons.”[3]

Relying on a tertiary ground alone to deny an accused bail is problematic, largely due to the court's definition of the “public”. For example, say an accused poses no flight risk and is determined to not be at risk of creating harm to public protection and safety (the primary and secondary grounds, respectively), would a thoughtful person, not prone to emotional reactions, who understands the facts and agrees with society’s fundamental values, lose confidence in the administration of justice if they were not detained pretrial?

The court justifies a tertiary ground by balancing four factors determined by legislators in s.515(10)(c) of the Criminal Code of Canada: (1) apparent strength of the prosecutor’s case, (2) gravity of the offence, (3) circumstances surrounding the commission of the offence, including whether a firearm was used, and (4) the fact that the accused is liable for a potentially lengthy term of imprisonment.[4] Under this reasoning, if an accused commits a rather serious offence with high minimum and maximum sentences compared to other crimes in the Criminal Code of Canada and are likely to be convicted and, if found guilty and sentenced, are likely to receive a lengthy sentence, but still do not pose enough risk to society to detain them under secondary grounds, then a reasonable person would lose confidence in the administration of justice if they were not to be detained.

This principle seems rather counter-intuitive and begs the question: on what basis would a reasonable person lose confidence in the administration of justice if an accused who poses no risk to safety or flight is released? A reaction based on fear? That would violate the reasonable person in the “public” definition. Based on political leanings? Given the abundance of evidence regarding over-use of remand in Canada, where many held on bail are found innocent,[5] where there are harmful and degrading conditions for those held pretrial,[6] where an overrepresentation of minorities exists,[7] where the use of bail contains draining economic costs,[8] and the devastating effects of pretrial detention on an accused’s life,[9] it is incredibly difficult to believe a “thoughtful” and reasonable member of the public as described by the court would allow a political leaning to cost them their confidence in the administration of justice if an accused was released on solely tertiary grounds, for example.

Although McLachlin CJ (as she then was) stated, “[w]here … the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.”[10], it is difficult to imagine that the hypothesized accused spoken of would not be detained on primary or secondary grounds. As well, if the concern is releasing an accused who is likely to be convicted, the tertiary ground should be restricted to the likelihood of conviction (given that the court in St-Cloud clarified that inexplicability and the horrific nature of a crime are not to be one of the main factors considered[11]), not public confidence in the administration of justice, a vague phrase. The four factors required by legislatures to be considered (as outlined earlier) unjustifiably are linked to determining the public confidence in the administration of justice and appear to be moreso linked to (1) risk of reoffending (already a secondary ground) and (2) likelihood of conviction. I recognize these are ultimately the legislature's decisions, but it is hardly adequate for determining pretrial detention.

Given these conclusions, it is difficult to justify the existence of the tertiary ground, as it is unnecessary (possibly even unjust) and provides a barrier for an accused to overcome that is fundamentally illogical. A tertiary ground does not need to exist in the Canadian bail regime.

A secondary point to the unnecessary application of the tertiary ground is the mere notion that the reasonable people, as described by the court in St-Cloud, would agree upon release; considering the court must engage in a balancing factor to determine whether detention under tertiary grounds is justified, it is difficult to imagine all reasonable people would agree on detention results. It is also difficult to believe that if a judge denies bail or orders bail, a thoughtful and reasonable person, according to the St-Cloud definition, would automatically lose confidence in the administration of justice if the judge did not reach the same conclusion as them. It is possible that although a reasonable person may disagree with the judge's decision, they understand the reasoning behind it and do not lose confidence in the administration of justice, because they are to understand principles of the legal system. It may also be problematic to only care about a certain segment of the population’s thoughts, that is, anybody who fits the description of the reasonable person. Although these are secondary points, they are worth pondering in regard to the logic of tertiary grounds for determining pretrial detention.

It has been long-known that pretrial detention is overused and is harmful to those entangled with it.[12] The tertiary ground for bail unnecessarily contributes to that problem. It is illogical and flawed; the tertiary ground should be removed from bail considerations or seriously overhauled. Although not the highest priority in the abundance of Canadian criminal justice reform required to create an admirable system, having a logically flawed law prevent low-risk offenders from being released pretrial, and minimizing their right to innocence, is all but admirable. Although there appears to be little discussion about the problematic nature of tertiary grounds in legal discourse, perhaps the comfortability of this entrenched law should be challenged to create a more just Canadian system.

[1] R v Antic, 2017 SCC 27 at para 36. [2] R v Zora, 2020 SCC 14 at paras 6, 100. [3] R v St-Cloud, 2015 SCC 27 at 80 [St-Cloud]. [4] Criminal Code, RSC 1985, c C-46, s 515(10)(c). [5] John Howard Society of British Columbia “Fact Sheet: Remand and Overcrowding” (March 2013) at 2, online (pdf): <johnhowardbc.ca/wp-content/uploads/2019/11/Resources-jhsbc-factsheet-remand-overcrowding.pdf> [perma.cc/GAC6-9UG6]. [6] Ibid at 3-5. [7] Canada, Department of Justice, Research and Statistics Division, “Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System” (September 2017), online (pdf): <publications.gc.ca/collections/collection_2018/jus/J4-46-2017-eng.pdf> [perma.cc/9JM6-W29T]. [8] Cheryl Marie Webster, “”Broken Bail” in Canada: How We Might Go About Fixing It” (June 2015) at 2, online (pdf): Department of Justice Canada <publications.gc.ca/collections/collection_2018/jus/J4-73-2015-eng.pdf> [perma.cc/3AQX-ADFG]. [9] Ibid at 3. [10] R v Hall, 2002 SCC 64 at para 40. [11] St-Cloud, supra note 3 at 168. [12] Canadian Civil Liberties Association and Education Trust, “Set up to Fail: Bail and the Revolving Door of Pre-trial Detention” (July 2014), online (pdf): <ccla.org/wp-content/uploads/2021/07/Set-up-to-fail-FINAL.pdf> [perma.cc/NV5H-TAXK].