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Her Majesty the Queen in Right of Canada Appellant File Number: 36783 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE SUPERIOR COURT OF ONTARIO) BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA APPELLANT (Respondent) – and – KEVIN ANTIC RESPONDENT (Applicant) HER MAJESTY THE QUEEN IN RIGHT OF CANADA FACTUM (Rule 42) REDACTED VERSION Public Prosecution Service of Canada Brian Saunders, Q.C. Ontario Regional Office Director of Public Prosecutions 130 King Street West, Suite 3400, Box 36 160 Elgin Street, 12th floor Toronto, Ontario, M5X 1K6 Ottawa, Ontario, K1A 0H8 Per: Nick Devlin Amber Pashuk Per: François Lacasse Tel: 416.952.6213 Tel: 613.957.4770 Fax: 416.973.8253 Fax: 613.941.7865 E-mail: [email protected] E-Mail: [email protected] Counsel for the appellant Ottawa agent for the appellant Her Majesty the Queen in Right of Canada Kevin Antic Southwest Detention Centre 4819 8th Concession Rd. Maidstone, Ontario N0R 1K0 Fax: (519) 967-3157 Respondent Vincenzo Rondinelli Eugene Meehan, Q.C. Lafontaine & Associates Supreme Advocacy 330 University Avenue, Suite #506 340 Gilmour St., Suite 100 Toronto, Ontario M5G 1R7 Ottawa, ON K2P 0R3 Tel: (416) 204-1835 Tel: (613) 695-8855 Fax: (416) 204-1849 Fax: (613) 695-8580 E-mail: [email protected] Ottawa agent for the Amicus curiae Amicus curiae Memorandum of Argument i Table of Contents Table of Contents PART I – STATEMENT OF FACTS ......................................................................................... - 1 - A. Overview ...................................................................................................................... - 1 - B. Antic’s arrest ................................................................................................................. - 2 - C. Antic’s personal circumstances .................................................................................... - 2 - D. The initial bail hearing and detention order .................................................................. - 3 - E. The first bail review ...................................................................................................... - 3 - F. The second bail review ................................................................................................. - 5 - G. The third bail review: Constitutional challenge is brought to s. 515(2)(e) ................... - 6 - H. The remedy: a declaration and amendment of the bail provisions ............................... - 6 - I. The respondent has not made bail ................................................................................. - 7 - PART II – QUESTIONS IN ISSUE ........................................................................................... - 8 - PART III – STATEMENT OF ARGUMENT ............................................................................ - 9 - A. Section 515(2) always permits a reasonable bail ......................................................... - 9 - B. Universally available cash bails are the problem, not the solution ............................ - 16 - C. The restriction on cash-and-surety bails does not violate s. 11(e) of the Charter ...... - 22 - D. Section 1: Reducing the use of cash bails is a reasonable and laudable limit ............ - 23 - E. The remedy was wrong: a flawed judicial re-writing ................................................. - 27 - F. Conclusion.................................................................................................................. - 28 - PART IV – COSTS ................................................................................................................... - 29 - PART V – ORDER SOUGHT .................................................................................................. - 29 - PART VI – TABLE OF AUTHORITIES ................................................................................. - 30 - PART VII – LEGISLATION .................................................................................................... - 33 - Memorandum of Argument - 1 - Facts PART I – STATEMENT OF FACTS A. Overview Cash bail has sometimes proven to be a poor friend to the administration of justice.1 Consequently, Parliament significantly limited the use of this form of release in its reform of bail in the early 1970s, replacing it with a “liberal and enlightened” 2 regime of pre-trial release centred on the use of sureties instead of cash.3 In this case, however, the judge hearing a bail review found that the respondent had a Charter right for a cash deposit to be added atop the surety he was offering to back his release. To make this bail comport with the provisions of the Criminal Code, the judge severed the statutory provision restricting the use of cash bails to limited circumstances. In doing so, he inadvertently created an entitlement to cash bail in all cases. There was no need for this overbroad constitutional remedy. The Charter does not entitle an accused person to release on any particular form of bail, only to a regime where reasonable bails are granted and unnecessary or unjust detentions do not occur. Section 515 of the Criminal Code meets that requirement. When its provisions are correctly applied, either a reasonable bail is granted under the existing provisions, or a justified detention ensues. In this case, a correct analysis would either have led the judge to grant a lawful surety bail or to a conclusion that the respondent was not releasable. Parliament’s wisdom in excluding the sort of cash bail issued in this case from the menu of reasonable releases permitted by the Criminal Code has been proven by the fact the respondent continues to sit in jail as of this writing, unable to meet the massive cash bail granted him as a constitutional ‘remedy’. The reasoning and result in this case are incorrect and should be reversed. 1 Right. Hon. J.G. Diefenbaker, House of Commons Debates, 3rd Sess., 28th Parliament, 19-20 Elizabeth II, Vol. III, 1971 (February 5, 1971) at p. 3124; Martin L. Friedland, Detention before Trial (Toronto: University of Toronto Press, 1969) at p. 176 [“Friedland, Detention before Trial”]; Gary Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010) at p. 6-12 [“Trotter”]. 2 R. v. Bray, (1983), 2 C.C.C. (3d) 325 (Ont. C.A.) at para. 10, adopted in R. v. Pearson, [1992] 3 S.C.R. 665 [“Pearson”] at p. 691 3 Bail Reform Act, S.C. 1970-71-72, c. 37; Trotter, at p. 7-1. Memorandum of Argument - 2 - Facts B. Antic’s arrest Police found He was arrested, charged, and held for a bail hearing.6 C. Antic’s personal circumstances 9 . 4 Transcript of Proceedings (June 29, 2015), Appellant’s Record, Vol. I, Tab 5 at p. 35, l. 16. 5 Transcript of Proceedings (June 29, 2015), Appellant’s Record, Vol. I, Tab 5 at p. 35, l. 8. 6 Reasons on Bail Review Application, Appellant’s Record, Vol. I, Tab 1 at paras. 3 and 6. 7 Transcript of Proceedings (June 29, 2015), Appellant’s Record, Vol. I, Tab 5 at p. 66, l. 10 8 Transcript of Proceedings (June 29, 2015), Appellant’s Record, Vol. I, Tab 5 at p. 75, l. 5. 9 Transcript of Proceedings (June 29, 2015), Appellant’s Record, Vol. I, Tab 5 at p. 69, l. 25. 10The bail judge notes that the respondent gave varying evidence that he had been in Canada at least three years and as many as ten years: Reasons for Bail Review Application, at para. 39. The respondent’s father testified that the respondent had primarily lived in Canada since 1992: Transcript of Proceedings (July 10, 2015), Appellant’s Record, Vol. I, Tab 7, p. 128-129, l. 25. 11 Reasons on Bail Review Application, Appellant’s Record, Vol. I, Tab 1 at para. 39. 12 Transcript of Proceedings (June 29, 2015), Appellant’s Record, Vol. I, Tab 5 at pp. 49, l. 17 and p. 76, l. 15. 13 Reasons on Bail Review Application, Appellant’s Record, Vol. I, Tab 1 at paras. 5 and 39. 14 Transcript of Proceedings (June 29, 2015), Appellant’s Record, Vol. I, Tab 5 at p. 67, l. 20. 15 Reasons on Bail Review Application, Appellant’s Record, Vol. I, Tab 1 at para. 38. 16 Reasons on Bail Review Application, Appellant’s Record, Vol. I, Tab 1 at para. 38. 17 Transcript of Proceedings (June 30, 2015), Appellant’s Record, Vol. I, Tab 6 at p. 91. Memorandum of Argument - 3 - Facts D. The initial bail hearing and detention order At his initial bail hearing, the respondent offered his new girlfriend as a surety. Both the Federal and Ontario Crowns opposed his release. The Justice of the Peace ruled that the respondent had not met his onus;18 the charges were serious, the case against the respondent “very strong” and could net the respondent a substantial penitentiary sentence,19 leaving him with little incentive to appear for trial. The Justice of the Peace found that while the secondary grounds concerns could be met with a surety, the respondent had failed to satisfy the primary grounds concern that he was a flight risk. He concluded that, “[t]he plan fails to address in any meaningful way the concerns on the primary grounds.”20 The respondent was ordered detained.21 E. The first bail review The respondent brought three bail reviews in the Ontario Superior Court of Justice, each before Munroe J. [“the bail judge”].22 On the first bail review, he offered two new sureties, his father, who lives in Michigan, and his grandmother who lives in Windsor. His grandmother was 77 years old, owned her own home and agreed to offer a $10,000 cash deposit.23 The grandmother testified that the respondent used to live with her and that he continued to visit her twice a week and to call her frequently.24 The respondent’s father, a machinist, was
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