It's nice to see the Court of Appeal for Ontario continues to recognize the presumption of innocence as the cornerstone of the Canadian criminal justice system; and define the reasonable person as mindful and aware of the propensity to be swept away by emotion.
In R. v. Fasoranti [2021] ONCA 138, the court delivered a thoughtful and thorough judgment on the law of bail and "the right of any person charged with an offence… not to be denied reasonable bail without just cause" under s. 11(e) of the Canadian Charter of Rights and Freedoms. The Court summarized at paragraph 11:
The Supreme Court has reminded judges that "[a] recognizance with sureties is one of the most onerous forms of release": R. v. Antic, [2017] 1 S.C.R. 509, [2017] S.C.J. No. 27, 2017 SCC 27, at para. 67. Bail judges must bear in mind that "pre-trial detention is extraordinary in our system of criminal justice": R. v. Morales, [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, at p. 728 S.C.R. Further, "the release of accused persons is the cardinal rule and detention, the exception": R. v. St-Cloud, [2015] 2 S.C.R. 328, [2015] S.C.J. No. 27, 2015 SCC 27, at para. 70.
In releasing the accused, a two-thirds court concluded at paragraph 49:
If a reasonably thoughtful person, one who is not prone to emotional reactions but understands our society’s fundamental values, was informed of the circumstances of this case — namely, that this applicant was released on bail, with the new plan, proposed sureties and proposed conditions — there is no doubt that their confidence... would be maintained.
The Court set the standard of behavior and characteristics expected from the ordinary and careful person: Someone who believes in the presumption of innocence; has common sense; possesses average intelligence; abhors injustice and unfair punishment*; and exercises an appropriate degree of care and attention.
*The unfortunate term we have yet to fully discard. Corrective measures, rehabiltation, therapy would all be more congruous with the contemporary understanding of the real causes and deterrents to crime and unhealthy behaviour.
In R. v. Fasoranti [2021] ONCA 138, the court delivered a thoughtful and thorough judgment on the law of bail and "the right of any person charged with an offence… not to be denied reasonable bail without just cause" under s. 11(e) of the Canadian Charter of Rights and Freedoms. The Court summarized at paragraph 11:
The Supreme Court has reminded judges that "[a] recognizance with sureties is one of the most onerous forms of release": R. v. Antic, [2017] 1 S.C.R. 509, [2017] S.C.J. No. 27, 2017 SCC 27, at para. 67. Bail judges must bear in mind that "pre-trial detention is extraordinary in our system of criminal justice": R. v. Morales, [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, at p. 728 S.C.R. Further, "the release of accused persons is the cardinal rule and detention, the exception": R. v. St-Cloud, [2015] 2 S.C.R. 328, [2015] S.C.J. No. 27, 2015 SCC 27, at para. 70.
In releasing the accused, a two-thirds court concluded at paragraph 49:
If a reasonably thoughtful person, one who is not prone to emotional reactions but understands our society’s fundamental values, was informed of the circumstances of this case — namely, that this applicant was released on bail, with the new plan, proposed sureties and proposed conditions — there is no doubt that their confidence... would be maintained.
The Court set the standard of behavior and characteristics expected from the ordinary and careful person: Someone who believes in the presumption of innocence; has common sense; possesses average intelligence; abhors injustice and unfair punishment*; and exercises an appropriate degree of care and attention.
*The unfortunate term we have yet to fully discard. Corrective measures, rehabiltation, therapy would all be more congruous with the contemporary understanding of the real causes and deterrents to crime and unhealthy behaviour.