e-4915 (Justice)

The Government is committed to the rule of law and a well-functioning criminal justice system that remains, fair, effective, and efficient.

No one is above the law in Canada. Individuals who are charged with crimes have their charges dealt with by the criminal justice system in accordance with established criminal laws and procedure and in a manner that respects the Canadian Charter of Rights and Freedoms. Everyone charged with a crime in Canada is presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal, which is a fundamental right in Canadian society guaranteed by section 11(d) of the Charter.

When a person is charged with an offence, they may be ordered detained pending their trial, or released, with or without conditions imposed either by police, or by a bail court. The Charter makes clear that any person charged with an offence in Canada has the right not to be denied reasonable bail without just cause. Just cause requires consideration of whether detention, or the imposition of any conditions of release, are necessary for at least one of the following grounds (or reasons): 1) to ensure that the accused attends court, 2) for the protection or safety of the public, or 3) to maintain the public’s confidence in the administration of justice (subsection 515(10) of the Criminal Code).

In Canada, when making bail decisions, police and courts must give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous grounds that are appropriate in the circumstances, having regard to the three grounds listed above. Bail conditions must be reasonable, the least onerous, and sufficiently linked to the risk posed by the accused in relation to one of the grounds for detention, pursuant to the direction provided by the Supreme Court of Canada in several cases regarding the right to reasonable bail, including R v. Zora, 2020 SCC 14.

This first ground is specifically designed to avoid loss of jurisdiction over the individual who may be tempted to leave the geographic limit of the court’s jurisdiction, or Canada. If this risk cannot be mitigated with the imposition of conditions, then the accused will be ordered detained in custody pending their trial.

Some of the conditions that may be imposed to mitigate this risk include requiring the accused to remain within a specified territorial jurisdiction, to deposit their passport, or to wear an electronic monitoring device (see subsections 501(3) and 515(4) of the Criminal Code). These conditions are available for any offence under the Criminal Code, including dangerous driving causing death (contrary to subsection 320.13(3) of the Criminal Code). These conditions can prevent accused individuals from leaving Canada. Any condition imposed at the discretion of police or a bail court is determined on a case-by-case basis. Police and bail courts are best placed to weigh the risks presented by the accused’s situation and their Charter right to reasonable bail.

As well, individuals who are not ordinarily resident in Canada who commit most types of indictable (serious) offences will automatically face a reverse onus at bail (paragraph 515(6)(b) of the Criminal Code). This means that they will not be released by the police and instead will be taken to court for a bail hearing. In a reverse onus situation, the presumption is that the accused ought to be detained while awaiting their trial unless they can demonstrate to the court that they should not be denied bail by showing that there is no just cause for their detention.

When a person is charged with a crime committed in Canada and that person has left Canadian territory before being arrested or before their criminal proceedings in Canada have concluded, Canada may seek the person’s extradition from the country in which they are located for the purpose of prosecuting them in Canada. In most cases, extradition is only possible if there is an extradition agreement in place between Canada and the other country.

The Government is committed to an extradition regime that allows Canada to bring alleged perpetrators of crime to justice before Canadian courts when the crime was committed on our territory, while at the same time ensuring that Canada’s extradition process is balanced with robust protections and safeguards for the person sought for extradition. Canada’s extradition treaties provide the basis for Canada to seek a person’s extradition from its foreign partners and set out the terms under which extradition may be granted. The Government regularly considers ways to enhance Canada’s extradition system, taking into consideration various perspectives and recommendations.

The Government also continues to evaluate the state of current laws to ensure that both the bail system and the criminal justice system as a whole strike an appropriate balance between ensuring the accountability of offenders, public safety, and respect for the Charter.