In the CBA Sections’ experience, reverse onus provisions and changes to the ladder principle are unlikely to produce the intended deterrent effect and raise concerns about Charter compliance. More importantly, without parallel investments in court resources and case management systems, these reforms risk making the bail process less efficient by increasing the complexity and length of bail hearings and contributing to broader systemic delays.
The CBA Sections have consistently opposed reverse onus provisions, viewing them as unnecessary in practice and disproportionately harmful to Indigenous accused and others who have historically faced barriers to obtaining release for reasons unrelated to public safety.
There are currently conflicting lines of authority with respect to the applicability of the “ladder” principle to bail hearings where the accused is in a reverse onus.38 Bill C-14 would codify the line of cases that conclude that the “ladder” principle does not apply in reverse onus situations.
The CBA Sections acknowledge that logically speaking, in a reverse onus situation, the onus is on the accused to justify their release and propose appropriate conditions that sufficiently mitigate the public safety risk at issue. As the burden in these cases does not lie with the Crown, it would make sense that the “ladder” principle, which prohibits the imposition of a more onerous form of release unless the Crown shows cause why this more onerous release is appropriate, would not apply.
However, the CBA Sections are of the view that a more nuanced approach to release in a reverse onus situation is appropriate. The intent of the “ladder” principle is to ensure the constitutional right to reasonable bail for all accused persons, which is closely tied to the presumption of innocence. The protection of this right must be maintained, and removing the applicability of the “ladder” principle to reverse onus situations effectively removes this constitutional protection.
There is a wide variety of circumstances where an accused person may find themselves in a reverse onus situation, including more serious situations, such as being alleged to have committed an indictable offence while on release for a serious offence or when charged with an offence involving a firearm. However, a reverse onus also applies when an accused person is before the court on minor offences (e.g. shoplifting) and then comes back before the court for breaching bail conditions for failing to attend court or report to a bail supervisor or an alcohol-dependent person attending a liquor store contrary to their conditions. A strict removal of the “ladder” principle to such circumstances would require the court to begin their analysis at the highest rung on the ladder (i.e. full house arrest with sureties), even though less onerous conditions may clearly be appropriate in the circumstances.
The CBA Sections support a nuanced approach to bail in reverse onus situations that allows the court to analyze the specific situation before it. This requires an analysis of the offence(s) the accused is charged with, including the sentence they might receive for it, the strength of the Crown’s case, the reason the accused is in a reverse onus, and the specific public safety risk(s) at issue (including the accused’s past performance on bail). For example, it could apply when a person on release is subsequently charged with a serious violent offence or a firearms offence. This would further ensure that court resources are saved to give maximum consideration to the most serious of offences.
A nuanced approach will ensure the constitutional right to reasonable bail; that a more onerous form of release is not imposed in inappropriate cases, while also ensuring that in more serious cases, where the public safety risk is high, that the accused must continue to justify their release on the strictest of conditions. This nuanced approach was endorsed by the B.C. Supreme Court in R v. Adem39, at para 113:
Where one lands in terms of detention or release and what rung of the ladder an accused lands on in a reverse onus situation is a more nuanced assessment. In my view, it may be more accurate to describe the process for reverse onus situations as a multifaceted and contextual assessment of whether the proposed release plan sufficiently addresses the concerns enumerated in s. 515(10) of the Code40, such that the accused is releasable.