The End of Innocence?

This past week, the Toronto Star published an opinion piece ( from Michael Bryant, Ontario’s former Attorney General, about the fact that “On any given day in Canada, there are more adults in custody awaiting trial or sentencing in provincial/territorial facilities than there are adults serving a sentence.”

As Mr. Bryant points out, this means that “most people in jail today are innocent; only a minority of prisoners have actually been convicted.”

When an individual is charged with a relatively minor crime, in many cases, police (either the investigating officer or a supervising officer) will simply serve the accused with an appearance notice or a summons, requiring that individual to attend court on a particular date. (In many cases, an individual’s lawyer—once properly retained—will be able to appear in court without the need for the accused to actually be there.) An officer in charge can opt to release some accused individuals on a promise to appear, a police undertaking, or a police recognizance (the latter two release types will often include a number of conditions that the individual must adhere to). Failure to appear in court at the required time and/or failure to follow the conditions of release are very likely to result in additional criminal charges against the accused.

For more serious crimes or where police have concerns about the accused or any conditions surrounding the commission of the offence, police will take the accused into custody until such time that the accused appears in court before a judge or justice of the peace. An accused individual taken into custody must have his/her matter called in court within 24 hours, except in extenuating circumstances. This does not mean that a bail hearing will take place within 24 hours of arrest—both defence and the Crown are entitled to request that the matter be set over, and adjournments are quite common for a number of reasons (scheduling issues, availability of information, etc.).

Some releases are negotiated between the Crown and the defence without needing a bail hearing. These negotiations can take some time, as in more serious cases sureties or release money may need to be arranged. Here, the Crown and defence work out a series of release conditions (typically requiring the accused to: keep the peace and be of good behaviour; reside at a particular location (and possibly adhere to a curfew); abstain from contacting or communicating with the accused; potentially abstain from the consumption and possession of alcohol and/or drugs, etc.) that are agreeable to both sides.

However, in many cases (especially serious cases that involve violence or threats of weapon use, a pattern of not following court orders, an indication that an individual may be a flight risk, etc.), the Crown will not consent to the release of an accused individual. This means that the accused’s only hope for pre-trial release is through a bail hearing (or a subsequent bail review, if bail is denied at the initial bail hearing).


The Charter of Rights and Freedoms includes a number of provisions that are very relevant to pre-trial detention, such as:

  • Section 7: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
  • Section 9: “Everyone has the right not to be arbitrarily detained or imprisoned.”
  • Section 10(c): “Everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”
  • Section 11(b): “Any person charged with an offence has the right to be tried within a reasonable time.”
  • Section 11(d): “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
  • Section 11(e): “Any person charged with an offence has the right not to be denied reasonable bail without just cause.”


The final two provisions listed above are arguably the most important with respect to the issues raised in Mr. Bryant’s article. In our modern society, people often seem to—at best—pay lip service to the fact that until a court hears and decides a case, an accused individual is presumed to be innocent of any charges and allegations. However, guilt must be proven beyond a reasonable doubt in a court of law.

Flowing from the presumption of innocence is the right to reasonable bail. As a free and democratic society, Canadians believe that innocent people should not generally be deprived of their liberty, unless the Crown can show just cause for ongoing detention. (Note that, in some cases, such as where the accused had previously been released on conditions and is now charged with breaching those conditions, the onus will be on the accused to show why release should be granted.)


There are three grounds upon which the Crown can argue that an accused should be denied bail (see section 515(10) of the Criminal Code):

  • Primary (s. 515(10)(a)): “where the detention is necessary to ensure his or her attendance in court”
  • Secondary (s. 515(10)(b)): “where the detention is necessary for the protection or safety of the public…having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”
  • Tertiary (s. 515(10)(c)): “if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances”  


The primary and secondary grounds are the most commonly used grounds for the Crown to oppose an individual’s release. As Mr. Bryant indicates, fear is a strong motivator in Crown and judicial decision-making; “the bail system is all about public fears, and … self-preservation by the decision-makers.”

Until there is a proper re-imagining of the bail system—in order to reflect “reasoned principles of a civil society”—fear will continue to ensure that many more people than necessary remain in pre-trial detention, despite the presumption of innocence. This means that defence lawyers and accused individuals must focus on assuaging Crown and court fears about a person’s potential release. Even if an accused is granted release, fear unfortunately often means that individuals end up on extremely restrictive conditions, making it more likely for them to end up being charged with breaching a court order.

Bail is not intended to be punitive or to set accused individuals up for failure. It is important to keep in mind that the right to reasonable bail flows from the presumption of innocence. As a society, we cannot afford to lose sight of either of these important rights; defence lawyers and social justice advocates must be cognizant of these issues and must defend their clients’ rights. As Mark Twain quipped in The Innocents at Home, “Are you going to hang him anyhow—and try him afterwards?”


About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.