R. v. Antic Did Change Something: Footnote 4 and the role of sureties

  • November 20, 2017
  • Daniel L. Lerner

Since the Supreme Court of Canada released its judgement in R. v. Antic, 2017 SCC 27 on June 1, 2017, quite a bit has been written about the decision, including the question: “Did Antic actually change anything?” It’s a fair question.

With respect the legal landscape of judicial interim release, the often-quoted paragraphs of the decision (paragraphs 64 to 67) really just re-stated existing legal principles regarding bail: the least onerous form of release should be applied, the Crown has the burden to demonstrate why a release other than an unconditional undertaking is required, etc.

That being said, anecdotally and from a practical perspective, many counsel have noted a change in many of the bail courts since the release of Antic. The Court’s restatement of bail principles was clear, precise, and undeniably binding. Many Crowns have responded by being more willing to consent to undertaking or a recognizance without a surety, and the courts are more willing to consider whether certain conditions or stricter forms of release are always necessary for release.

However, up until now, very little has been written about footnote 4 in R. v. Antic – a footnote which actually can make a fundamental difference to judicial interim release.

Footnote 4 can be found at paragraph 48 of Antic, a paragraph that states that a surety release and a cash bail are equally effective at mitigating flight or safety risks posed by an accused person. It is in that context that Wagner J, on behalf of the unanimous Court, writes footnote 4:

“In fact, there is no evidence that a release with sureties results in greater compliance with bail terms than does a recognizance: Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention, by A. Deshman and N. Myers (2014) (online), at p. 37 (“CCLA Report”).”

As part of the study done by the Canadian Civil Liberties Association in their 2014 report on Canada’s bail system, the authors compared charge and conviction rates for the offence of failing to comply with a bail in British Columbia and Ontario. For the period of 1998 to 2012, the report found very little difference in the per capita number of charges, notwithstanding that approximately 60% of judicial interim releases in Ontario required a surety, whereas virtually no releases in British Columbia required a surety. (In fact, a closer look at the CCLA’s data would show that prior to 2010, Ontario had more charges of failing to comply with bail than British Columbia.)

The data that sureties do not necessarily increase compliance with bail conditions was not new when the Court released Antic in 2017. Yet getting into a debate over statistics with a Justice of the Peace in a busy bail court on the sole issue of whether a defendant should be released with or without a surety was a losing proposition – especially in Ontario’s surety-dependent bail court culture. Now, though, the CCLA’s finding has been specifically cited with approval in a Supreme Court of Canada judgment – a judgment which elsewhere is critical of Ontario’s over-dependence of sureties compared to the rest of the country.

As a game-changer in bail court, footnote 4 of Antic is potentially the big one.

Does this mean sureties have no role in bail court?

I do not believe the footnote goes so far as to suggest that sureties have no role to play in bail. As one Justice recently suggested, the Supreme Court of Canada would not have overturned the bail system so fundamentally in just a footnote.

However, a party relying on the need for a surety is going to have to be able to justify why a surety is required, based on the evidence presented at the show cause hearing (within the relaxed rules of evidence at a show cause hearing). There might be something specific to the case, the plan, or the defendant that requires a surety. But neither the parties, nor the court can simply state that a surety is required to ensure compliance without an evidentiary basis because the Supreme Court of Canada has stated that generally speaking, there is no evidence that a surety increases compliance.

A simple, bald statement in court that a surety is required to ensure compliance, or that generally sureties add to bail compliance, is simply not true. It is contradicted by the statistics, which have been expressly relied on by the Supreme Court of Canada.

Is footnote 4 a double-edged sword?

I’m glad you asked. Footnote 4 is a double-edged sword.

The argument available for the defence with footnote 4 is somewhat obvious. Almost every defence counsel has seen a Crown stand up in bail court and take the position that the defendant is releasable, but only to a surety. In those cases, the defence can now point to Antic and put the Crown to its onus to point to actual evidence of why a surety is going to result in better compliance – in the face of statistics that would say otherwise.

There is also an argument for the Crown as well. If a defendant has regularly breached their own recognizance, and the defence is now proposing a step up the ladder of bail with a surety, the Crown may be in a position to argue that a surety is not going to increase bail compliance based on the Supreme Court of Canada’s position in Antic. In a reverse onus situation, the Crown can put the defence to its onus to point to actual evidence of why a surety is going to result in better compliance – in the face of statistics that would say otherwise.

Either way, though, footnote 4 in Antic is probably the first, significant step to reduce Ontario’s over-reliance on sureties. 


About the Author

Daniel L. Lerner practices criminal law at Lerner Law Professional Corporation in Toronto.

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