Traversing the Antic “Ladder” - some confusion remains

In the 2017 decision of R v Antic, the Supreme Court of Canada seized an opportunity to attempt to clarify the laws of judicial interim release and to re-iterate the somewhat forgotten “ladder principle”.1 Upon a third bail review, where Mr. Antic challenged the constitutionality of s. 515(2)(e) of the Criminal Code, the bail review judge severed and struck down the geographical limitation in that section and ordered the accused’s release with a surety and a cash deposit of $100,000.2 After spending over a year in pre-trial custody, the accused was finally able to raise the funds to post the $100,000 cash deposit.3

At the Supreme Court, it was held that s. 515(2)(e) of the Criminal Code did not deny bail for the accused, as the bail review judge erred by not properly applying the ladder principle when insisting on cash, which should be looked at as an equivalent to a recognizance.4 The bail review judge further erred by expressing a concern that the accused would not take bail as seriously without a cash deposit since the proposed surety was an elderly woman and the accused may not believe that they would follow through with the forfeiture proceedings.5 The Supreme Court stated that “judges should not undermine the bail scheme by speculating, contrary to any evidence and to Parliament’s intent, that requiring cash will be more effective.”6

The Supreme Court expressed concern that there was a “widespread inconsistency in the law of bail” and a “divergence in the law of bail across this country”.7 The Court began by stating that asides from a few exceptions, the default position when granting release is an unconditional release under s. 515(1).8 The prosecutor is provided with the opportunity to show why the accused should be detained or released under more stringent conditions.9 Each provision moving from s. 515(2)(a) to 515(2)(e) contains more onerous conditions, essentially moving up the “ladder”.10 Section 515(3) embodies this ladder principle, which prohibits a judge from imposing a more onerous form of release unless the Crown shows that a less onerous form is inappropriate.11 Release is said to be favoured at “the earliest reasonable opportunity and on the least onerous grounds and “each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.”12

Moving forward post-Antic, some suggest that the courts appear to be more lenient in granting interim judicial release. However, when determining which conditions are sufficient to enable the court to grant bail, it remains somewhat unclear as to which criteria actually cause the court to move up this so-called ladder to the next rung. What does appear to be clear is that a cash deposit should only be relied upon in exceptional circumstances in which release on a recognizance with sureties is unavailable.13 The cash amount must be crafted to ensure that it is not so high that it is beyond readily available means for the accused and does not “effectively amount to a detention order”.14 This was a live issue in the case for Mr. Antic, as he spent most of his time in the state of Michigan and thus had no assets in Canada.15 It appears reasonable to assume that any sum of money that the Court imposes as a requirement for bail that takes an entire year to collect is effectively amounting to a detention order.

This issue was further presented in the BC Supreme Court decision of R v Kuntz-Angel, where a bail decision was reviewed and the cash deposit portion was modified in light of the decision in Antic.16 The judge had originally included a condition that the accused pay $2,500.00 cash deposit which was deemed to be too high and therefore reduced to $350.00.17 The BC Supreme Court expressed that there was a lack of inquiry into the accused’s financial position which resulted in a limited error of law.18 This led to bail conditions being set at an inappropriate level “such that they effectively became a detention order.”19

In a more recent case of R. v. Tunney, the Ontario Superior Court expressed concern that the bail hearing conducting in this case exemplifies the concerns raised in R v Antic.”20 The Justice of the Peace had made reference to Antic while stating that each case in her view, “stands on its own.”21 The Court expressed concern with this statement, since Antic is a binding Supreme Court decision that must be followed.22 In this case, the Justice of the Peace decided at the outset that a surety would be required due to the seriousness of the allegations without first considering less onerous forms of release as required by the ladder principle.23 The Justice of the Peace did not provide any reasons as to why she concluded that lesser forms were insufficient as conditions for release.24 The Court stated that “while in many cases, it may be the “best” or “safest” to have a surety, an accused who is presumed innocent should not have his or her liberty restricted if lesser forms of restrictions will meet the statutory test for release.”24 It was further stated that “the accused, who had no criminal record or outstanding charges, was arrested in relation to relatively serious criminal harassment allegations. However, on any objective assessment, he was readily releasable.”26

This idea of who is “readily releasable” on an objective assessment demonstrates this very issue of uncertainty of when more onerous conditions will be required and what factors should be taken into account when deciding whether it is necessary to move up the ladder. It is evident that the courts have taken a step in the right direction in attempting to solve the problem of discrepancies in bail across the country. However, it is also representative in the case law since Antic that the problem has not been completely resolved and some uncertainty remains as to how to apply this redefined ladder principle on a case-by-case basis. 27

Endnotes