R. c. Anoussis, 2008 QCCQ 8100 (CanLII)
[1] Section 515(3) of the Criminal Code stipulates that cash shall not be imposed as a condition of interim release unless the prosecution shows cause why this condition is justified. The section as a whole provides that a person shall be granted interim release on his or her undertaking unless the judge imposes specific conditions. This means that if the prosecution does not show cause for detention a person must be granted interim release on the least onerous conditions unless the prosecution shows cause to justify more onerous conditions. Cash, either by deposit or a recognizance, should be exceptional.
[15] If the prosecution proposes a cash condition there is often an exchange between prosecution and defence counsel. Defence counsel, for example, will often have a word with the accused about the proposed conditions. Sometimes counsel will say, again in open court, that the accused is not able to meet the cash condition proposed by the prosecution. (...) If the matter is not settled on the spot, a date within three days will be set for a hearing concerning interim release.
[16] At a hearing the question of release might be contested. When not contested, prosecution counsel will again typically propose conditions, with or without cash. When a cash condition is sought, prosecution counsel will announce that the prosecution has no objection to release if the accused meets the proposed condition. When sought, a cash condition is also usually announced first by the prosecution because, it seems, this condition is typically more preoccupying than non-pecuniary conditions. It is not uncommon for the accused to make plain that he or she cannot meet a cash condition.
[21] Parliament made clear that cash bail might be justified in exceptional instances if the prosecution shows cause. Not every case is exceptional. Most cases cannot not be considered exceptional within the terms of Part XVI; otherwise they would be the norm or the general run of cases.
[22] Two reasons stand out for making cash an exceptional condition of release. The most obvious is that it operates not just unfortunately but unfairly for accused persons without means. The other is that there is no empirical basis to suggest that cash is generally the most effective means to secure the objectives of the law relating to interim release. Moreover, cash bail can have unintended ill-effects. It affects the ability of the defence to prepare. It can induce an accused person to plead guilty or otherwise manage his or her case for reasons unrelated to the merits of the charge. According to earlier studies, there is also a correlation between pre-trial detention and sentences of imprisonment. Parliament decided, and clearly provided, that the best sanctions are prosecution for failure to attend or, where specific conditions are imposed, prosecution for breach of conditions.
[23] The structure for interim release adopted in Part XVI has been called the "ladder" principle. At its core this means, as already noted, that release is favoured at the earliest reasonable opportunity and, having regard to the risk of flight and public protection, on the least onerous grounds. The first option to consider is release upon an undertaking without conditions (s. 515(1)). Second, if the prosecution considers that this will not secure the aims of Part XVI it may seek to show cause for other, non-monetary conditions (s. 515(2)(a)). Only in the last resort should those conditions include a requirement for cash by deposit or recognizance by the accused or a third party (s. 515(3)). These are the steps on the ladder. Even then, however, there is a progression in the types of cash conditions that may be sought and imposed under paragraphs 515(2)(b) through (d) and (e) and, again, the policy favours less onerous conditions unless cause is shown for more onerous grounds
[24] Where a party is required to “show cause” at a hearing on interim release this is not a burden of proof in the ordinary sense that requires the party to establish the existence of a fact to a balance of probabilities or beyond reasonable doubt. (...) At most there might be proof of a present risk but not proof that the risk will be realised. On a spectrum of standards of persuasion the requirement to show cause almost certainly implies something more in the nature of “reasonable grounds to believe.”
[25] Early in the jurisprudence under Part XVI it was suggested that the onus borne by a party is proof on a balance of probabilities. The cases all concerned instances where the onus to show cause was borne by the prosecution. The decisions sought to affirm that the standard of persuasion was certainly not proof beyond reasonable doubt as required for a finding of guilt. That was their most important effect. The question has not recently been considered but it is not clear to me that a standard of something less than proof beyond reasonable doubt must necessarily be proof on a balance of probabilities, or indeed any standard of proof in the strict sense of the word.
[28] Whatever the precise standard of persuasion to "show cause" might be, and that is not in question here, the party who bears the onus has an obligation to justify a proposed disposition having regard to the objectives of the law and the relevant facts of the case. It is an obligation to give a reason why a particular measure is necessary or appropriate, given all relevant circumstances, to secure the objectives of the law. Where the onus lies with the prosecution and the question is one of cash bail, prosecution counsel must be able to give a cogent reason why cash, either by deposit or recognizance, will secure the attendance of the accused in court, ensure public protection or maintain public confidence in the administration of justice. To my mind this means as well that prosecution counsel must be able to provide a cogent reason why other conditions, without the addition of a cash condition, will not adequately secure these aims. It is not sufficient for the imposition of a cash condition on release that it might provide an added incentive to comply or a deterrent against default. Apart from any other conditions that might be imposed, this condition must be justified by an identifiable purpose relating to the objectives of Part XVI. To show cause the prosecution must be able to make a link between this proposed condition and the grounds in section 515(10).
[30] Economies can and should be made where possible but, at the same time, essential steps in bail cases cannot be overstepped. One of those is found in section 515(3). There is nothing ambiguous about what it says; nor is there anything ambiguous about the ladder principle expressed there, in sections 515(1) and (2) – or elsewhere in Part XVI. This legislative arrangement leads supports two observations.
[31] The Code says that a judge “shall not” order a cash condition unless the prosecution has shown cause for it. The language is mandatory. This means that if a judge orders a cash condition without shown cause there is an error, perhaps also a jurisdictional error. The second observation is that if the judge imposes a condition of cash bail without justification this would quite likely be an order for unreasonable bail within the meaning of section 11(e) of the Charter precisely because it was granted without reason or justification. Both of these are compelling reasons for a judge not to order a cash condition without cause shown by the prosecution and, if nobody else raises the point, a judge would be quite right under the terms of the Code to raise it alone.
[32] The matter is different if the accused consents to the imposition of a cash condition or, for that matter, any other condition. In that situation the accused effectively waives a procedural protection that was enacted for his or her benefit. In some regards the imposition of a cash condition upon consent resembles a joint submission and the judge should probably accept it unless it is manifestly unreasonable. But, as with a joint submission, the judge is not legally compelled to accept it and may ask that the party with the onus show cause.
[33] But there is also a systemic problem. If defence counsel accept cash conditions without challenge, prosecution counsel will not hesitate to ask for them. Thus a pattern of routine proposal and routine acceptance becomes entrenched despite what the Code intends and what it actually says about showing cause. The persons adversely affected by this practice are not those who can accept or afford to meet a cash condition but those who cannot. A cash condition is not a ransom but it would be difficult to imagine a more blatant example of unequal treatment than one in which the quotient of liberty in criminal justice varies in direct proportion to the means of the accused.
[34] In any case the position of defence counsel is not easy. The immediate concern of most accused persons is release in the briefest possible delay. Defence counsel can scarcely be criticised for thinking that objection to a proposed cash condition might jeopardise the chances of immediate release and, correspondingly, that acquiescence in the proposal for a cash condition will enhance the chances of immediate release.
[35] If at the first appearance the defence challenges a proposed cash condition there will be no immediate release and there will be a bail hearing. Already the accused will not like this and might not feel best served. Defence counsel might be further concerned that if the matter goes to a full bail hearing release of the accused might be challenged and jeopardised. At the first appearance, if the accused agrees to the proposed conditions, counsel can say with some confidence that release will be granted on those terms unless the judge refuses for some reason. The accused readily agrees to the condition, whether there is justified cause that could be shown or not. It is scarcely surprising that in so many cases the defence will agree to conditions that could not possibly be justified by cause. But that does not make it right. If there is a full hearing defence counsel might well feel less confident of the outcome. Even so, the prosecution might again propose a cash condition. Hence there is often for tactical reasons some attractiveness in accepting a proposed cash condition from the outset. Defence counsel, acting in the best interests of the client, might well advise acceptance of the proposed cash condition. But the law does not compel this position; nor should the ordinary practice become an incentive to do precisely what the law has expressly sought to avoid – the routine imposition of a cash condition for interim release.
[36] In my respectful opinion, defence counsel should not hesitate to question the suggestion of a cash condition at the first appearance or at a bail hearing. That is part of their job. The defence should challenge the prosecution to show cause why only a cash condition will secure the objectives of Part XVI and why other conditions are inadequate. Unless the prosecution shows cause for continued detention the accused is by law entitled to release on the least onerous conditions that are consistent with the aims of Part XVI. It is for defence counsel to do their best to ensure that the accused gets it or, if not, that the prosecution has shown cause for conditions that are sought. Of course, there might be reasons why the accused would elect not to challenge the suggestion of a cash condition but one of those reasons should not be the fear that any chance of release will be lost simply because a challenge was made to the suggestion of a cash condition. If for tactical reasons the defence accepts or even offers a cash condition, that is for the defence to decide in the best interests of the accused. Even then, however, this tactical decision should be made will full awareness that the court might intervene – as in this case - to demand that the prosecution show cause why this condition is justified.
[38] Perhaps the best, and certainly the worst, explanation for the prevalence of cash conditions is that they have become a matter of habit – habit compounded by the pressures of time and volume in busy courtrooms. It is not bad faith or meanness on the part of the prosecution. It is not indolence on the part of defence counsel. One can understand the frustration of prosecution counsel given the high rates of failure to attend and breach of conditions, especially where the ability to invoke sanctions for such conduct is difficult. One can also understand the reluctance of defence counsel to force the prosecution to show cause for a condition of cash bail. It will likely result in a peremptory denial of release at the first appearance and it might risk a denial of interim release at a full bail hearing.
[39] There are no fixed classes of cases in which a cash condition could be justified as appropriate. There are also no fixed classes in which it would be inappropriate. The issue is likely to arise most often in cases where there is evidence of breach in some form, whether it be breach of bail conditions, probation orders or any other similar indication of non-compliance with a lawful order. This kind of evidence can indicate that non-monetary conditions might not be sufficient to secure the objectives of Part XVI of the Code because they suggest an attitude of indifference or contempt towards lawful process. (To some extent the Code automatically handicaps this question by allocating the onus to show cause for release to accused where there are, for example, alleged breaches of existing conditions of release or pending charges.) A cash condition might also be justifiable in cases of drug trafficking, money-laundering and other instances involving the possibility of shifting or wasting assets. But, as I say, there is no point in attempting to describe the circumstances where a cash condition will be justifiable except to say that they must be circumstances in which the prosecution has shown cause that non-monetary conditions alone are inadequate.
[40] If somebody thinks that for over thirty-five years the policy expressed in section 515(3) is wrong-headed, and that cash conditions will effectively and routinely secure the objectives of Part XVI, perhaps the law will be changed. But that has not happened.
[41] I repeat. Just as there are cases where interim release should be denied, there are cases in which a condition of cash for interim release will be appropriate. Prosecution counsel must be able to show cause when this is the case, why this is the case and why other conditions are not adequate to secure the objectives of the law. Defence counsel should not hesitate to challenge on the ground that a cash condition is neither necessary nor prudent.
Aucun commentaire:
Publier un commentaire