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Presumption of innocence: A closer look at bail rules

‘The stakes are too high for anything less,’ reads Supreme Court decision that aimed to streamline bail process Canada-wide
Man in handcuffs
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Richard Asselstine has had a turbulent year.

Over the past 12 months, Asselstine has been in and out of jail, charged with offences that span Simcoe County from Orillia to Collingwood. His circumstances serve as a case study of current bail rules in Canada.

“With bail, there is always the presumption of innocence,” said a courthouse official who spoke with Village Media on condition of anonymity. “The presumption should be (in most cases) that you’re released on bail because you’re presumed innocent, unless the Crown can show that you should be held in custody.”

On June 6, 2018, Asselstine, 27, walked into the Orillia Ontario Provincial Police station and surrendered on charges of possession of stolen property, theft under $5,000, fraud under $5,000, breaking and entering, failure to comply with an undertaking and failure to attend court.

However, Asselstine escaped the station that day, causing the Orillia City Centre to go into lockdown. He was later found, charged, and attended bail court that same day in Barrie on those and an additional charge of escaping lawful custody.

Asselstine was released on bail that week once his address was verified.

Later on, in June 2018, Asselstine faced more charges in regards to several break and enters in Oro-Medonte Township. Again, he was granted bail.

On March 14, after a traffic stop on Highway 26 in Springwater Township, Asselstine allegedly fled on foot and was captured by police.

Now a resident of Collingwood, he faces more charges of theft, two counts of possession of property, flight from peace officer, resisting a peace officer, failure to comply with a probation order, operation of a vehicle while impaired and dangerous operation of a vehicle.

While Asselstine was attending bail court in Barrie back in June, assistant Crown attorney Michael Flosman said letting Asselstine go free would be a “recipe for disaster.”

“He is a terrible risk,” Flosman said at the time.

Flosman listed off more than 20 instances of Asselstine being charged with failure to attend court, obstruction of justice, obstruction of a peace officer and failure to comply dating back as far as 2006.

Asselstine’s case is not unique and highlights some of the issues with the current bail court system in Ontario and Canada.

Some of the factors taken into account when determining whether an accused should get bail are outstanding charges, absence of a criminal record, ties to the community or the seriousness of the offence.

People charged with first- or second-degree murder are rarely granted bail in Ontario, only under special circumstances.

“Oftentimes, if people knew the whole story, they might say that it’s reasonable to let them out (on bail). They might also say that’s not reasonable. But like it or not, we have a presumption of innocence. It’s part of our constitution. It has to mean something,” said the courthouse official.

“If people are charged and you say they are presumed innocent, how can you not release them on bail? At the same time, there’s a reality to this where the rubber meets the road. If you’re the person whose house is broken into while someone is out on bail, you’re not that interested in the presumption of innocence,” he noted.

“It’s kind of a fight, you have to balance it. It’s not easy. It’s not a science. We try the best we can,” he said.

The 2017 Supreme Court case R v. Antic clarified and changed the way bail court proceedings typically work in Canada.

In 2016, Antic was arrested in Windsor and was charged with several drug and firearms offences.

He was denied bail at his initial bail hearing in the Ontario Court of Justice. He appealed the decision of the bail court judge to incarcerate him, claiming it infringed on his rights.

“The main issue in the appeal was whether s. 515(2) of the Criminal Code infringed the right to not be denied reasonable bail without just cause under s. 11(e) of the Canadian Charter of Rights and Freedoms,” wrote the judges.

Nine Supreme Court judges prepared the decision that aimed to clarify bail rules Canada-wide.

“The concerns raised in this case extend beyond the provision at issue,” they wrote. “The bail review judge’s reasons appear to be illustrative of how the bail provisions are being applied inconsistently across the country.”

According to the courthouse official, the Antic Supreme Court ruling made things more clear for judges and justices when determining what would be appropriate in each case.

“The Supreme Court said (in the Antic ruling) there are more people in custody awaiting bail than there are serving sentences. These are people who have been presumed innocent but have been denied the right to bail, which is fundamental under the Charter of Rights and Freedoms,” said the official.

According to court statistics provided by the Ministry of the Attorney General, 94,663 cases went through Ontario bail courts in 2018.

As of Dec. 31, 2018, there were 4,173 pending cases in Barrie, with 88 per cent of those charged out on bail. In Orillia, there were 686 with 73 per cent of those charged out on bail.

The Antic ruling stated that going forward, the Ladder Principle should be used in all cases.

“The least restricted release is where you start, and then you move up that ladder. So, (a person) will be released with certain conditions, such as not going near the victim, or complainant,” said the official.

The next level is bail court, called an undertaking.

The next level is recognizance where you may have sureties and you may have to post cash bail.

The final rung is detention.

“The courts are saying, absent something novel or exceptional, you should move up the ladder,” said the official. “The Antic ruling stated that they weren’t trying to change the system, but that this method should have been used all along.”

According to the Antic ruling, moving forward, bail should be applied more consistently across Canada.

“It is time to ensure that the bail provisions are applied consistently and fairly. The stakes are too high for anything less,” reads the ruling.


Jessica Owen

About the Author: Jessica Owen

Jessica Owen brings nine years of experience to her role as regional reporter for Village Media, primarily covering county matters, court, Collingwood and Barrie matters
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