On May 11, 2020, the Ontario Court of Justice has released a new notice on bail hearing protocols. The current Covid-19 pandemic has emphasized the need for all parties and the Court to work flexibly and efficiently within the rule of law to preserve individual liberty rights and reduce unnecessary burdens on the backlogged system.
Pre-Court Preparations and Discussions
Due to technology constraints, defense counsel should note the impracticalities of conducting private conversations with the accused during a bail hearing over video or audioconference, or a combination of both. To expedite the hearing, the Crown and defense counsel should make reasonable efforts to come to an agreement over whether the matter will proceed as a consent release or a contested hearing. The parties should also make reasonable efforts to narrow the issues and discuss how evidence, preferably documentary rather than oral, is to be presented.
Documents and Exhibits
Where possible, documents should be exchanged between the Crown and defense counsel and filed electronically with the Court (via email), prior to the hearing. If the parties are proposing a consent release, counsel should jointly complete and email to the Court the following documents: the proposed terms and conditions of release, and the surety declaration (if required). Where the hearing is contested, the Crown will share with defense, the synopsis or summary of allegations; the accused’s criminal record (if any); and any other witness statement or summary the Crown intends to introduce at the hearing.
Sureties
While the overuse of sureties in bail hearings is problematic, subsections 515(1) to (2.01) of the Criminal Code (the ladder principle) is explained in detail in R v Antic, 2017 SCC 27. In situations where there are no proposed alternatives to surety releases, defence counsel should exchange surety declarations with the Crown and file them with the Court in advance of the hearing.
In cases where a surety is unable to swear/affirm a surety declaration, defence counsel is expected to have communicated with the surety and completed the surety declaration remotely; and expected to have taken reasonable steps to ascertain the identity of the proposed surety. (In certain circumstances, defence counsel may be asked to outline the steps they have taken to ascertain the surety’s identity.)
Where a sworn/affirmed surety declaration has not been provided, and the Crown is not relying on section 515.1(2)(a) to dispense with a surety declaration, the proposed surety is expected to attend the bail hearing by audioconference or videoconference in order for the Court to determine the suitability of the surety. If a surety release is ordered, defence counsel may witness the signing of the release order remotely, or a judicial officer may dispense with the signing procedure if satisfied the surety understands that he/she is still bound by the terms of the release order even if left unsigned.
Procedure for Effecting Release
The court clerk will email the release order to the facility where the accused is being detained so the accused person can sign the order. A signed copy of the release order will be given to the accused, and another emailed to the Court for proper distribution to the parties and filing.
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