Bail and the Tertiary Ground

November 11, 2009

Sometimes when an individual is charged with a crime, he or she will be detained in custody pending a bail hearing. At the bail hearing, the Crown Attorney must “show cause” – i.e., show the court why the accused should be kept in custody until his or her trial. If the Crown cannot satisfy a judge that there is cause to keep the accused in custody, he or she will be released into the community on bail while awaiting trial. The Crown can show cause that the accused should be detained only by establishing one of the following grounds:

  1. 1. That the accused is likely to fail to appear in court or flee the jurisdiction;
  2. 2. That the accused must be detained in order to protect the public; and/or
  3. 3. That the accused must be detained to maintain public confidence in the administration of justice.

Criminal defence lawyers and other legal professionals generally refer to the third ground as the tertiary ground.

The tertiary ground may be invoked by a Court to deny bail where public confidence in the judicial system would be damaged if the accused is released. It is generally accepted that a judge should only deny bail on the basis of the tertiary ground alone in exceptional cases involving heinous offences. For example, denying bail based on the tertiary ground was upheld by the Supreme Court of Canada in R. v. Hall, where the deceased was brutally murdered and almost decapitated. However, it is very important that the tertiary ground is not misused by judges caving to irrational public fears.

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There are several factors a judge must consider before denying bail based on the tertiary ground. These include (a) the importance of the presumption of innocence, (b) the significance of the accused’s right to liberty and the constitutional right to bail, (c) the granting of bail must be considered on a case-by-case basis and there are no offences for which bail is automatically granted or prohibited, (d) the actual nature of the allegations and the fact that the allegations may or may not be proven at trial, (e) pre-trial custody can last for many months and can be a significant hardship on the accused and his or her family members,  and can complicate the accused’s ability to prepare their defence (f) the bail process should not be used to punish the accused before trial.

Canadian courts have refused to detain accused individuals solely on the basis of the tertiary ground even when they were accused with offences that most people would consider extremely disturbing. For example, the Court released a man accused of beating a robbery victim to death despite the Crown’s argument to detain him based on the tertiary ground, in R. v. Trout. In R. v. Ibrahim, the court released a man accused of deliberately beating a homeless person to death, based on the narrow interpretation of the tertiary ground. However, the court has used the tertiary ground to deny bail for extremely shocking or heinous offences, such as the brutal murder in Hall or the situation in R. v. White where a man was charged with the first-degree murder of his pregnant wife.

The decision to not detain an individual based on the tertiary ground alone requires that the court balance the shocking or egregious nature of the crime against the presumption of innocence and the accused’s Charter of Rights right to reasonable bail. Because of the emphasis on the presumption of innocence, the court is much more reluctant to apply the tertiary ground in situations where the evidence against the accused is weak. The court has indicated that in youth matters, the tertiary ground should be applied extremely rarely.

Recently, Toronto criminal defence lawyers have noticed that judges are more willing to apply the tertiary ground in situations involving guns and gang violence. This is partially explained by the increasing media attention and public awareness of gun and gang violence in the Greater Toronto Area.

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