Charter Challenges Related To Bail And Remand
Charter Challenges Related to Bail and Remand
Bail and remand in Canada are governed by ss. 515–525 of the Criminal Code and heavily constrained by the Canadian Charter of Rights and Freedoms, particularly:
s. 7 – Life, liberty, and security of the person
s. 9 – Freedom from arbitrary detention
s. 11(e) – Right not to be denied reasonable bail without just cause
s. 12 – Freedom from cruel and unusual treatment/punishment
s. 11(b) – Right to be tried within a reasonable time
Challenges arise when bail conditions are excessive, detention is unjustified, delays are unreasonable, or bail processes are systemically unfair.
1. Section 11(e): Reasonable Bail and “Just Cause”
✦ Core Principles
The Supreme Court has held that under s. 11(e), the Crown must show “just cause” to deny bail. This means:
Detention must be necessary to achieve a valid purpose (primary, secondary, or tertiary ground), and
The detention must be proportionate to that purpose.
✦ Leading Cases
R v. Pearson (1992)
Upheld reverse-onus bail for serious drug offences, ruling that Parliament can impose reverse onus where justified, as long as the regime is rationally connected to the offence and not arbitrary.
R v. Morales (1992)
Struck down the former “public interest” ground for bail as unconstitutionally vague under s. 11(e) and s. 9.
R v. Hall (2002)
Upheld the tertiary ground (confidence in the administration of justice) as constitutional, but clarified:
It must not authorize detention automatically.
It must be applied narrowly and based on clear criteria.
✔ Key Rule From These Cases
Detention prior to trial must always be exceptional, not the norm.
2. Section 7 Challenges: Liberty, Fairness, and Overbroad Bail Conditions
✦ The Problem
Courts increasingly see bail conditions that:
Are unnecessary (curfews, area bans)
Are unrelated to the offence
Disproportionately criminalize poverty, addiction, or homelessness
When bail conditions are too strict or unrealistic, they violate s. 7 as arbitrary, overbroad, or grossly disproportionate.
✦ Leading Cases
R v. Antic (2017 SCC)
A landmark case. The SCC reaffirmed:
The “ladder principle”: the least restrictive means of ensuring attendance/ safety must be used.
Cash bail and sureties should be exceptional.
Courts must begin with unconditional release unless Crown shows otherwise.
This decision is frequently used to strike down unreasonable bail practices.
R v. Zora (2020 SCC)
A major s. 7 and s. 11(e) decision.
The SCC held:
Bail conditions must be realistic and tailored to the individual.
Conditions that set an accused up for failure are unconstitutional.
Breaches should not be criminalized unless the Crown shows a mens rea standard (i.e., knowledge or recklessness).
Impact:
Challenges to bail conditions now succeed when the conditions are unnecessary, vague, overly strict, or impossible to comply with.
3. Section 9 Challenges: Arbitrary Detention in Remand
Detention becomes arbitrary when:
A justice of the peace applies the wrong legal test;
The Crown’s reasons for detention are speculative or unsupported;
There are inappropriate blanket policies (e.g., “no bail on weekends,” or automatic detention for certain offences).
✦ Key Case
R v. St-Cloud (2015 SCC)
Confirmed that denial of bail must be justified with evidence and cannot be arbitrary or based on assumptions about public confidence.
4. Section 12: Cruel and Unusual Treatment — Conditions in Remand Centres
S. 12 challenges arise when the conditions of pre-trial detention are degrading or dangerous.
Areas commonly litigated:
Overcrowding
Lack of medical or mental-health care
Solitary confinement in remand
Delays getting to court because of chronic institutional backlog
✦ Leading Cases
R v. Jordan (2016 SCC)
Although primarily about trial delay (s. 11(b)), Jordan recognized systemic failures in the criminal justice system—including bail and remand delays—as unconstitutional.
R v. Capay (2019 ONSC)
Ontario case (not SCC), but important:
A murder charge was stayed because the accused spent 1,500+ days in solitary confinement.
The court found violations of ss. 7 and 12.
This case is used to challenge abusive remand conditions.
5. Section 11(b): Delay in Scheduling Bail Hearings
Unreasonable delays in getting a bail hearing can violate s. 11(b).
R v. Myers (2019 SCC)
Improper or delayed 90-day detention reviews violate s. 7 and s. 11(e).
The SCC emphasized:
Liberty must always be protected through timely and meaningful review.
Systemic or administrative delays are not excuses.
6. Systemic Challenges: Poverty, Race, and Over-Use of Remand
Systemic Charter challenges increasingly highlight:
Over-representation of Indigenous, Black, and marginalized people in remand
Unconstitutional reliance on sureties (contrary to Antic)
The criminalization of homelessness and addiction (Zora)
Relevant Authorities:
R v. Ipeelee (2012 SCC): Though a sentencing case, its principles about colonial harms apply to bail.
Gladue principles, applied increasingly at bail to argue detention would be unconstitutional.
7. Types of Charter Arguments Commonly Raised in Bail Hearings
(1) s. 11(e) — detention unjustified; ladder principle not followed
(2) s. 7 — conditions or detention are arbitrary or grossly disproportionate
(3) s. 9 — detention is arbitrary (bad reasons, wrong legal test)
(4) s. 12 — harsh remand conditions
(5) s. 11(b) — unreasonable delay in hearing bail or trial
8. Example Charter Arguments in Practice
✦ Challenging Excessive Bail Conditions (s. 7 & 11(e))
“The conditions imposed violate the ladder principle from Antic and create unrealistic compliance expectations prohibited by Zora.”
✦ Challenging Denial of Bail (s. 11(e))
“The Crown has not demonstrated just cause for detention under Morales and Hall.”
✦ Challenging Systemic Delay (s. 11(b))
“Delay in scheduling this bail review breaches the standards set out in Myers and Jordan.”
✦ Challenging Remand Conditions (s. 12)
“The accused’s detention in solitary confinement/overcrowded cells violates s. 12 per Capay.”
9. Summary Table of Leading Cases
| Case | Charter Right | Key Holding |
|---|---|---|
| Antic (2017) | 11(e) | Reinforces ladder principle; bail must be least restrictive |
| Zora (2020) | 7, 11(e) | Bail conditions must be realistic, tailored, and constitutional |
| Myers (2019) | 7, 11(e) | Timely 90-day reviews required |
| Morales (1992) | 11(e), 9 | “Public interest” ground unconstitutional |
| Hall (2002) | 11(e) | Tertiary ground upheld but must be applied narrowly |
| Pearson (1992) | 11(e), 7 | Reverse onus bail can be constitutional |
| St-Cloud (2015) | 11(e) | Clarifies tertiary ground; prevents arbitrary detention |
| Jordan (2016) | 11(b) | Delay standards; systemic issues affect bail |
| Capay (2019) | 7, 12 | Solitary confinement in remand violates Charter |
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