The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System

C. Bail/Remand

Recommendation Six: Bail Application Officers

The Steering Committee recommends that the appropriate legal aid body consider the use of bail application officers to assist duty counsel and to reduce delays in commencing bail hearings.

  • Duty counsel have a dual role, interviewing persons arrested and contacting sureties, while simultaneously being counsel in court assisting with remands and hearings. This can cause considerable inefficiency, especially when accused are not transported to court in a timely fashion.

  • Bail application officers, acting as paralegals, would assist duty counsel with the out of court bail hearing preparation. This can include the contacting of potential sureties, assisting in the development of proposed plans of release and explaining the responsibilities of a surety to prospective candidates.

  • The Steering Committee sees allocation of sufficient resources, facilities and access to accused as necessary to a proper assessment of bail application officers' effectiveness.

The Federal/Provincial/Territorial Legal Aid Working Group supports this recommendation in principle. To maximize the full potential of bail application officers, the working group indicates that police need to be persuaded to put additional resources into the early provision of case and accused related information to Crown counsel.

Adequate training of bail application officers is also essential. Where there are a high percentage of aboriginal accused, aboriginal courts workers can be used as bail application officers. The working group is also of the view that similar consideration should be given to nongovernmental organizations (e.g. the John Howard Society) where they are successfully operating bail verification and supervision programmes. A number of jurisdictions questioned where the resources to fund a bail application officer programme would come from and indicated any available additional money would be better spent on existing legal aid programming.

Recommendation Seven: Weekend Bail Courts

The Steering Committee identified inefficiency in the current operation of weekend and statutory holiday (“ WASH ”) courts. Promoting these courts as regular bail courts and not remand courts may be desirable in high volume jurisdictions.

  • The appropriate use or establishment of WASH courts has the potential to significantly reduce inefficiencies in the use of bail court time.

  • It also has the potential to reduce the cost of prisoner transportation and the strain on police and correctional resources.

  • Where contested matters are not regularly commenced in WASH courts, extra weekday bail courts may become necessary to assist with overflow.

  • The presence of both Crown Counsel and duty counsel is a best practice for any WASH court intended to function as a regular bail court.

  • Such courts need to be properly resourced in order to ensure their effectiveness.

  • The Steering Committee recognizes that flexibility in structure and delivery is required to ensure that such Courts meet the needs of individual jurisdictions.

Bail proceedings are conducted in a number of different ways across the country. In a majority of jurisdictions, provincial court judges preside at bail hearings. In other jurisdictions, justices of the peace preside. In some provinces, judicial officers will make themselves available at any time to conduct a bail hearing; in other jurisdictions, bail hearings are held in courts that sit regular court hours. The calling of witnesses and sureties is a common occurrence in some jurisdictions; testimony is seldom heard at a bail hearing in other jurisdictions. A number of commentators noted that telephone and video conferencing technology now provides the means to conduct bail proceedings from remote locations at reduced cost and increased security.

Recommendation Eight: Bail Supervision And Verification Programmes

The Steering Committee recommends the use of bail supervision programmes. It is recommended that these bail supervision programs provide monitoring, referrals and supervision beyond simply verifying an accused person's reporting conditions.

  • Numerous reports have commented on the effectiveness and utility of bail supervision programmes.

  • Bail supervision programmes are community - based services that assist individuals who, because of their financial circumstances or lack of social ties, are at risk of being denied bail on the primary ground - risk of non-appearance. In exchange for the accused's pre-trial release, bail program staff undertakes to supervise the accused and to promote his or her compliance with bail conditions and attendance at subsequent court dates.

  • Ideally, programs should also offer referrals and materials to accused to meet their needs (e.g. counseling, treatment opportunities etc.).

There has been steady erosion across Canada in the availability of community support programmes for accused with special needs that could be managed in the community. In the absence of such programmes and because of the real or perceived increased public safety risk presented by these accused, pretrial custody becomes the only option. This contributes to the strain on correctional resources. Bail supervision and verification programmes have been operating in Ontario since 1979 and are highly regarded by the police, the judiciary, and counsel. In 2003/04:

  • 81% of bail supervision programme clients attended all their court appearances, thereby increasing court efficiency by avoiding failures to appear;

  • 37% of bail supervision programme clients were found not guilty or had all their charges withdrawn and would have been detained unnecessarily were it not for the program; and

  • 19% of bail supervision programme clients were released to either a surety or on their own recognizance, demonstrating the value of the “ verification ” process and avoiding the costs of programme supervision or custody.[28]

  • Bail supervision and verification programmes cost approximately $3 a day per client, while custody costs $135 a day per inmate.

Philosophical as well as pragmatic considerations support the existence of bail supervision programmes. All accused should have the right to be presumed innocent. Pre-trial detention can only be justified when detention is necessary in order to ensure the accused's attendance at trial, to protect the public, or to prevent the administration of justice from falling into disrepute. The Steering Committee believes that considerations of fairness and the public interest in reducing custodial costs justify government support for bail supervision programmes that promote the attendance of accused persons in court without requiring pre-trial incarceration.

Recommendation Nine: Use of Crown Discretion

The Steering Committee sees the role of Crown counsel in the bail court as central to its proper functioning and encourages continued emphasis on Crown training in efficient bail court procedures and the proper ambit of Crown discretion.

  • The Steering Committee equally encourages continued efforts within the prosecution service to communicate a sense of support to Crown counsel in bail court, particularly in the exercise of discretion in difficult cases.

  • Continuity of Crown counsel in bail courts is seen as a best practice. Such continuity allows for streamlined procedures, uniform approach and a sense of ownership of the cases and the process.

  • Assigning experienced Crown counsel prepared to exercise their discretion should be encouraged.

A number of commentators indicated that the “ best Crowns ” should be regularly appearing in bail court. Those responsible for the management of prosecution services pointed out, however, that senior Crowns are in high demand throughout the system. In response to the recommendation that bail court be assigned to senior Crown counsel, one commentator noted: “ There appears to be a variance of comfort of Crown prosecutors in the exercise of discretion which is not directly related to the seniority of the individual. Judgment, which carries with it an intelligent exercise of discretion, is not something that necessarily comes with age or seniority ”. Another commentator emphasized the need for risk assessment tools to be developed. “Without such tools, Crown counsel are basing their decisions on “gut feelings” and consultation with the arresting officer – relying on experience alone to justify decisions which may have life or death implications seems remarkable in this day and age.” Police commentators stressed the importance of continuing to involve investigating officers in bail decision-making.

Recommendation Ten: Reverse Onus Bail Proceedings

The Steering Committee recommends that consideration be given by the Federal/Provincial/Territorial bail reform working group to the repeal of paragraph 515(6)(c) of the Criminal Code, so that a justice presiding in bail court will no longer be required to order that an accused charged with an offence contrary to the administration of justice be detained in custody unless the accused shows cause why detention in custody is not justified.

Where an accused is charged with: 1) failing to attend court in accordance with an undertaking or recognizance or a court order, 2) failing to comply with a condition of an undertaking or recognizance or a court direction, 3) failing to comply with a summons, or 4) failing to comply with an appearance notice or promise to appear, the justice shall order that the accused be detained in custody until he is dealt with according to law, unless the accused, being given a reasonable opportunity to do so, shows cause why his detention is not justified.[29] As a consequence of this “ reverse onus ” provision, an accused charged with a relatively minor offence who was originally released by the police or granted judicial interim release and who breaches even a minor term of the release, shall be detained in custody unless the accused can show why detention is not justified. If the accused is unable to satisfy the onus imposed by 515(6)(c), the accused will be remanded in custody and may spend longer in pretrial custody than would be the appropriate sentence following conviction for the original offence and the subsequent failure to comply. The Steering Committee questions whether two consecutive minor offences should so significantly increase the likelihood of pretrial custody.

As previously noted, mean elapsed time from first to last court appearance is continuing a long-term trend toward increased duration. The elapsed time in the average case increased from 137 days ten years ago to 226 days in 2003/04. The mean processing time for the least complex cases, those with a single charge, increased from 121 to 215 days during the same period, while the processing time for multiple charge cases increased from 157 days to 236 days. Consequently, accused are on bail for longer periods of time. Moreover, the longer an accused is on bail the more times he has to attend court and as the number of court appearances increase, so does the possibility the accused will fail to appear as required or otherwise breach the terms of release. In 2003/04, failure to comply with a court order was the fourth most frequently occurring offence in Canada.[30] Offences against the administration of justice have steadily increased their share of the caseload over the past ten years. This offence group accounted for 19% of all cases in 2003/04[31], versus 16% five years ago, and 14% ten years ago.[32] The number of s. 515(6)(c) “ reverse onus ” bail proceedings and, presumably, the number of detained accused increase as the number of these offences increase.

Recommendation Eleven: Surety approval mechanisms

In jurisdictions where surety testimony is routine, the Steering Committee recommends that alternatives to viva voce evidence should be encouraged, particularly where a release on consent is proposed.

  • In addition, standard affidavits and information packages for potential sureties should be prepared in advance by local duty counsel and provided to Crown counsel.

  • Crown counsel should be encouraged to accept affidavits and receive continuing education on the efficient use of cross-examination in consent release cases.

  • Extended Justice of the Peace availability for surety approval should be promoted to allow for surety attendance.

  • Availability and sufficiency of full time duty counsel is a key factor in ensuring the success of alternative surety mechanisms.

It appears that in most jurisdictions prospective sureties are not required to testify and are seldom required to swear affidavits. In other jurisdictions, however, it is common for prospective sureties to testify. Some commentators from the prosecution community feel strongly that proposed sureties should testify so they understand and unequivocally accept the responsibilities they are undertaking. Evidence under oath or an affidavit also enhances the Crown's ability to seek estreatment in the event of a breach.

Recommendation Twelve: Court - Detention Centre Communication Protocol

The Steering Committee recommends that each court location have a protocol for contact between the court and detention centres. This could assist the court with list management, provide a method for the detention centres to inform the courts of any developing transportation problems and allow the court to assist in identifying a priority list for transportation.

  • One potential cause of delay in bail courts relates to the delayed arrival of prisoners from local police divisions and detention centres. With the advent of larger detention centres, each sending detainees to a large number of courts over varying distances, transportation efficiency will be challenging, and the concomitant impact on courts can be great.

The Federal/Provincial/Territorial Heads of Corrections Committee agrees that establishing formalized protocols with local courts will be of benefit in meeting these challenges. Commentators from Quebec suggest that hospitals should also be involved in the development of such protocols.

Recommendation Thirteen: Use of Audio and Video Remand Systems

The Steering Committee recommends that audio and video remand systems be used, where possible, for individuals detained while awaiting a hearing. It is an essential component of such systems that defence counsel have secure and convenient access to their clients.

  • Video remands should be used when counsel availability for a hearing date is unknown.

  • Accused persons should only be transported to court when their actual attendance is required.

There was strong support for this recommendation during the consultations. The Federal/Provincial/Territorial Heads of Corrections Committee noted that various provinces have implemented audio and video capabilities in their correctional facilities and courts. From their perspective, the challenge remains that audio and video appearances are not conducted by default and are subject to judicial support. The Canadian Association of Chiefs of Police strongly supports this recommendation because transporting accused to and from court for brief court appearances is expensive, disruptive to custodial institutions and dangerous.

Recommendation Fourteen: Availability of Crown Briefs

The Steering Committee recommends that police should ensure that Crown briefs for persons arrested overnight are available in a timely fashion to allow for Crown preparation and meeting with counsel prior to court.

Practices vary across the country when it comes to how soon the police can provide Crown briefs for persons arrested overnight. The resources available for brief preparation play a major role. Police and prosecution capacity to prepare, transfer and receive the brief in electronic format facilitates the process. The length of the bail court list will also determine how much preparation time Crown counsel requires. In busy court locations, receipt of the Crown brief at least an hour before court starts is essential. However, police resource pressures result in this not occurring consistently. An abbreviated brief may be sufficient at this stage, but it must meet minimum requirements so that it is useful to both counsel. In Quebec, under its pre-charge screening system (systeme d'autorisation des plaints), paper files must be received by the Crown prosecutor no later than 11 am, so they can be reviewed, a charge drafted if appropriate, and the prosecutor can determine whether a surety should be requested. The information is sworn at 2 p.m. on the day prior to the first court appearance of the accused.

The Canadian Association of Chiefs of Police supports the concept of consultation with Crown counsel prior to the bail hearing and suggests that issues of timing and delivery of the Crown brief be discussed in the context of the overall process. In some jurisdictions, the prosecution service utilizes administrative rather than legal staff to receive the file from the police and prepare the Crown brief under the supervision of Crown counsel.

Recommendation Fifteen: Bail Hearing Information

The Steering Committee recommends that as much information as possible be provided to the Crown at the time of the bail hearing. This will put the Crown in a position to provide defence counsel with as much information as possible early in the life of the case.

  • Before the bail hearing, the police should provide Crown counsel with, at a minimum, the following material.

    • The synopsis and record of arrest;

    • the criminal record of the accused; and

    • a synopsis of any videotaped statements where a transcript of the statement has not been prepared

There was general consensus during the consultations that the earlier disclosure can be provided to the defence, the better. The sooner counsel for the accused receives disclosure, the sooner he or she can advise the accused of the strength of the prosecution case and outline the options open to the accused. This will reduce the number of court appearances required before the case is resolved. The less time the police and Crown counsel have between arrest and bail appearance, however, the less information that can be assimilated and produced. Some commentators felt that it is impossible for the police to put together the package contemplated by this recommendation before the bail hearing.

The specific items recommended for inclusion in the package may not be achievable at such an early stage, except in simple cases or where there has been an extended investigation.

In a number of jurisdictions, discussion between the police and the Crown with respect to a wide variety of disclosure issues is ongoing (e.g. policy/practice, e-disclosure and costs). The Canadian Association of Chiefs of Police is of the view that the Report of the Martin Committee to the Attorney General of Ontario and the decision of the Supreme Court of Canada in R. v. Stinchcombe [33] make it clear that disclosure to the defence is a Crown responsibility. The C.A.C.P. feels it is fundamentally inappropriate for the police to be providing disclosure to the defence or participating directly in associated discussions and negotiations with defence counsel.

Recommendation Sixteen: Expedited Disclosure Following Detention Order

The Steering Committee recommends that when an accused is detained in custody, the provision of disclosure should be expedited.

  • Absent exceptional circumstances, the accused should be provided with disclosure as soon as possible before the bail hearing.

  • Crown counsel should ensure that disclosure for in-custody cases is screened within two days of receiving the disclosure from the police service.

While this recommendation was recognized as a “ best practice ” during the consultations, many commentators stated that current resources do not permit its implementation in their jurisdictions. Others indicated they already provide disclosure as fast as they possibly can and an admonition to “ expedite ” disclosure is not going to make it any faster. The general view expressed by prosecutors was that only in the least complex of cases could Crown screening take place within two days of receiving the Crown brief from the police.

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