• Lewis Waring

To Grant, or Not to Grant Bail: That is The Question - Abhishek Makam

Trigger Warning: Article deals with sex trafficking.

One of the core principles of criminal justice is that everyone is innocent until proven guilty. This principle sits uneasy when it butts up against the issue of what to do with the accused prior to them being proven guilty. Is it fair to detain the accused only for them to be later acquitted? This is what bail attempts to solve. The two interests at odds are (1) the interests of the accused, and (2) the interests of the society. With regards to the interests of the accused, detaining the innocent is tantamount to false imprisonment – and that is simply unjust. Accordingly, the right to a “reasonable bail” is protected under section 11(e) of the Canadian Charter of Rights and Freedoms (“the Charter”). However, in the event the accused is guilty, society has an interest to bring them to justice; setting the accused free before trial makes that harder. Accordingly, the guidelines for denying bail are outlined under section 515(10) of the Criminal Code (“the Code”):

Justification for detention in custody

(10) For the purposes of this section the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court . . . ;

(b) where the detention is necessary for the protection or safety of the public . . . having regard to [the] substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice . . . .

Judges are asked to balance these two interests and decide whether to grant bail or not to grant bail to the accused. In the era of COVID-19, this balancing act becomes much more difficult because the presence of an ongoing pandemic makes the imprisonment of the accused riskier than under normal circumstances, especially if they have comorbidities that places them at a higher risk of death.

Nygard’s potential bail plan

These are the circumstances under which Peter Nygard, a 79-year-old fashion mogul, was seeking bail pending his hearing for extradition to the Uni