Bail Hearings in Drug Cases

• Author: Nathan Gorham/Jeremy Streeter/Breana Vandebeek
• Pages: 17-56



Bail Hearings

in Drug Cases

2

I. Introduction ............................................. 

II. The Principles That Govern Bail Hearings ..................... 

A. The Statutory Grounds for the Denial of Bail ............. 

B. The Constitutional Right to Bail ........................ 

C. The Evidentiary and Procedural Framework at

Bail Hearings ....................................... 

D. Procedural Safeguards ............................... 

III. The Factors That Commonly Inuence Bail Decisions in

Drug Cases .............................................. 

A. The Seriousness and Circumstances of the

Alleged Oence ..................................... 

B. The Apparent Strength of the Prosecution’s Case .......... 

C. Compliance or Non-Compliance with Prior Court Orders ... 

D. Prior Criminal Record ................................ 

E. The Personal Circumstances of the Accused .............. 

F. The Proposed Plan of Release ......................... 

G. Use of GPS Ankle Monitor as Part of the Bail Plan ......... 

H. Health of the Accused ................................ 

I. Delay Before Trial ................................... 

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1Prosecuting and Defending Drug Cases

I. Introduction

For lawyers who regularly defend or prosecute drug oences, bail hearings are a com-

mon experience. Many drug oences—tracking, production, and importing/

exporting—are punishable by a maximum sentence of life in prison. For these

oences, the Criminal Code provides that the accused must show cause why they

should be released on bail.1 Consequently, a large percentage of drug prosecutions

commence with a bail hearing, as opposed to a promise to appear or an undertaking

given to an ocer in charge (which are forms of release that do not require attend-

ance before the court). Furthermore, many violent oences, property oences, and

firearms oences occur in the milieu of drug tracking. As a result, most lawyers

who practise Canadian criminal law must, from time to time, grapple with the prin-

ciples of bail in the context of drug-related oences.

These hearings often raise unique issues compared with other types of bail

hearings. Although the grounds for denying bail—preventing the defendant from

absconding, protecting the public, and maintaining public confidence—apply to all

criminal prosecutions in Canada,2 the factors that influence bail decisions in drug

cases are specific. For example, the lucrative profits from drug tracking may give an

accused person a strong motive to continue tracking pending trial. Moreover, the

organized structure of some drug tracking enterprises may aord a defendant with

the means to abscond or to interfere with the administration of justice. Similarly,

where a person is accused of a serious drug tracking oence and the evidence is

overwhelming, public confidence may be undermined if the accused is released pend-

ing trial. In contrast, however, in the case of the “small fry” tracker—a person who

does not have a direct or substantial financial interest in the oence—the same flight,

safety, and public confidence issues may not prevent their release on bail. Further-

more, since the issues in drug-related bail hearings are unique, the proposed plan of

supervision must address those unique issues if the accused is to be released on bail.

A lawyer who aims to competently defend or prosecute drug-related oences at

the bail hearing stage must not only have command of the substantive, evidentiary,

and procedural principles that govern bail hearings but also must be familiar with the

unique contextual circumstances that often arise. This chapter addresses the legal

and practical tools necessary for practitioners to eectively prepare and present their

positions at bail hearing proceedings. Section II defines the legal principles that gov-

ern bail hearings: the substantive grounds for the denial of bail, the constitutional

right to bail, the applicable rules of evidence, and the available procedural safeguards.

Section III examines the factors that commonly influence bail decisions in drug-

related cases.

1 Criminal Code, s 515(10).

2 These grounds are outlined later in the chapter.

© 2024 Emond Montgomery Publications. All Rights Reserved.

Chapter  Bail Hearings in Drug Cases 1

II. The Principles That Govern Bail Hearings

A. The Statutory Grounds for the Denial of Bail

Section 515 of the Criminal Code defines the grounds for denying bail.3 Under the

“primary ground,” section 515(10)(a), the detention of the accused is justified where

it “is necessary to ensure his or her attendance in court in order to be dealt with

according to law.” In drug-related cases, justices often assess this ground in light of

the accused’s ties to the community, incentives to flee from prosecution (i.e., avoiding

a lengthy sentence of imprisonment), disincentives to absconding (i.e., surety money

pledged in support of the bail), the apparent strength of the prosecution’s case, and

the nature of any drug tracking enterprise the accused is allegedly connected with.

The “secondary ground,” under section 515(10)(b) of the Criminal Code, provides

that detention is justified where it “is necessary for the protection and safety of the

public.” This ground is assessed in light of “all the circumstances including any sub-

stantial likelihood that the accused will, if released from custody, commit a criminal

oence or interfere with the administration of justice.” Under this section, bail jus-

tices must consider the apparent strength of the prosecution’s case and the nature of

the oence, along with any other relevant factor, in determining whether the deten-

tion is warranted. As will be discussed in more detail later in this chapter, cogent

evidence that the accused played a significant role in an organized and lucrative drug

tracking enterprise may support the inference of a strong financial motive to con-

tinue tracking drugs if released on bail. Also, the size, structure, and sophistication

of the tracking enterprise may suggest that it has the means to intimidate witnesses

or otherwise interfere with the administration of justice.

Finally, section 515(10)(c) of the Criminal Code, often referred to as “the tertiary

ground,” provides for the denial of bail where it is “necessary to maintain confidence

in the administration of justice.” This ground is assessed with consideration of all the

circumstances, including “the apparent strength of the prosecution’s case,”

“thegravity of the oence,” “the circumstances surrounding the commission of the

oence, including whether a firearm was used,” and “the fact that the accused is

liable, on conviction, for a potentially lengthy term of imprisonment.”

B. The Constitutional Right to Bail

Section 11(e) of the Charter provides, “Any person charged with an oence has the

right … not to be denied reasonable bail without just cause.” The Supreme Court of

Canada has interpreted “just cause” to mean that detention may only be denied in

narrow circumstances, where it is necessary for a properly functioning bail system,

3 This section governs all criminal oences, except those listed in s 469: murder, treason, piracy,

and several others.

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