Hilarious! How to lose a bail hearing

how to lose a bail hearing

This MAD TV video is on one of the funniest court skits I have ever seen.  As comical as it may be, it helps to illustrate the criteria for judicial interim release.  In Canada, section 11(e) of the Canadian Charter of Rights and Freedoms means that reasonable bail should not be denied unless there is "just cause" to do otherwise. In most cases the Prosecutor shoulders the onus of demonstrating that the accused should be denied reasonable bail.   In some cases, there is a reverse onus requiring the accused to demonstrate that he or she should be granted reasonable bail. There are essentially three grounds upon which reasonable bail could be denied: 

1. Primary Ground -- Detention is necessary to ensure the accused attends court (R. v. Hall).
2. Secondary Ground -- Risk that the accused will breach bail and endanger the community (R. v. Morales).
3. Tertiary ground -- Bail must be denied to maintain confidence in the administration of justice (R. v. Hall).

skit illustrates the primary, secondary and tertiary grounds for reasonable bail

This skit illustrates how to lose a bail hearing.

At the start of the skit, the Prosecutor seeks the detention of the accused on grounds that he is a "flight risk". The accused responds with words to the effect: "I'm not a flight risk. If I was a flight risk, I wouldn't be here now, I would be in another country.  I have friends who can create false passports".  Of course, in this case, the accused just demonstrated that he has the means to flee, thus triggering the possibility of detention on the primary ground.

The skit then does a marvellous job highlighting the secondary ground for detention: that the accused is a substantial likelihood to breach bail and endanger the public if released.  The accused starts by pleading his innocence for the crime of bank robbery.  Of course, in law, he is presumed innocent until proven guilty.  However, he then goes on to say, "I don't need money, I'm a drug dealer". 

Now, it's important to remember that the Crown need not prove its case at the stage of bail; rather, there only needs to be reasonable grounds to support the laying of the charge. Accordingly, the accused's statement, "I'm a drug dealer", arguably moves the dial in favour of detention; for "drug dealing" arguably constitutes behaviour that would endanger the public. After being warned by the Court, the accused then goes on to say, "you can't believe the money you can make selling drugs to high school students on Grande Avenue".   He adds, "I don't need money to take out the ladies.  If I didn't have the money, I would just kidnap them". At this point, the accused not only establishes serious concerns under the secondary ground, but potentially seals his fate on the tertiary ground.

The Court then warns the accused he is in "dangerous territory", to which the accused responds that he has murdered people. Murder is one of the offences that attracts serious consideration -- indeed, almost automatic -- grounds for detention based on the tertiary ground.

reasonable bail

In cases such as R. v. Morales, the Supreme Court of Canada has affirmed that the denial of bail can only occur in a narrow set of circumstances.  Reasonable bail is a cornerstone of our criminal justice system because all persons accused of crime are presumptively innocent.  Many are not merely presumptively innocent, they are innocent. To deny the innocent reasonable bail is to exert punishment before the allegations have ever been proven beyond a reasonable doubt. Recently, in R. v. Antic, [2017] S.C.J. No. 27 the Supreme Court stated: 

The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system.

All levels of Court, including the Supreme Court understand that judicial interim release should only to adjudicated from the perspective of an enlightened public, who understands the interplay between the various principles in our criminal law. 

David Chow is a Calgary criminal lawyer who regularly obtains judicial interim release for clients charged with serious offences. He has obtained bail for person's accused of everything from low level offences, to serious drug trafficking to murder. For a free consultation with a proven Calgary bail lawyer call 403.452.8018.