R v Ishmael – 2019 ONSC 596 (Goldstein):

[30] I disagree. The justice of the peace erred by applying the ladder principle in a reverse onus situation. I agree with the following statement of Bale J. of this Court in R. v. Sakhiyar, 2018 ONSC 5767, at para. 7, which in turn relies on Justice Trotter’s work on bail: I do not accept defence counsel’s argument that the bail justice erred in law by failing to apply the “ladder principle”. This was a reverse onus bail hearing to which the “ladder principle” does not apply.” In this regard, I accept the following statement of law contained in Trotter, The Law of Bail in Canada, at page 6-9 (2017 — Rel.2): The ladder principle is inapplicable to situations in which a reverse onus provision in s. 515(6) is triggered. When this subsection was enacted in 1976, Parliament made no attempt to reconcile the reverse onus provisions with s. 515(3). It follows that when the onus is on the accused, he or she ought to be required to justify why the most onerous form of release should not be imposed. This may well be the reality in practice.

[31] The ladder principle was described in Antic, at para. 29, in this way: The Bail Reform Act also codified what is now known as the “ladder principle”. This Act set out possible forms of release, which were ordered from the least to the most onerous. The ladder principle generally requires that a justice not order a more onerous form of release unless the Crown shows why a less onerous form is inappropriate. In other words, the ladder principle means “that release is favoured at the earliest reasonable opportunity and . . . on the least onerous grounds”: R. v. Anoussis (2008), 242 C.C.C. (3d) 113, at para. 23, per Healy J.C.Q. (as he then was).

[32] When properly read Antic does not overturn the notion that the ladder principle does not apply in a reverse onus situation. Wagner J. noted that by the time of the bail review at issue, Mr. Antic had pleaded guilty to the drug charges. Accordingly, only the firearms charges remained outstanding. It was not a reverse onus situation at the bail review. The bail review judge should have applied the ladder principle. Wagner J. stated at para. 50 of Antic: With these interpretive principles in mind, I will now turn to the bail review decision at issue in this appeal. Mr. Antic’s show cause hearing and bail reviews were contested. Mr. Antic bore the onus of establishing why the detention order should be vacated. However, once Mr. Antic had satisfied the bail review judge that new circumstances justified his vacating the order, the ladder principle ought to have guided the judge in fashioning a release order. Although Mr. Antic had been charged with drug trafficking, which had reversed the onus at the initial bail hearing, he had pleaded guilty to these charges by the time of his second bail review hearing. He was therefore not in a reverse onus position at that time.

[33] In my respectful view, it makes sense that the ladder principle does not apply in a reverse onus situation. In a reverse onus situation, of course, the accused must show cause. A justice at a reverse onus bail hearing does not simply make a “yes” or “no” detention decision. A justice must consider whether an accused can be released depending on the conditions. Those conditions may include the availability of a surety or a good residential plan. A justice would be justified in finding that the accused has failed to meet his onus because the plan of supervision is inadequate. Ordinarily the onus is on the Crown to show cause why more restrictive bail conditions are required.

[34] In my respectful view, the justice of the peace made an error of law by applying the ladder principle in a reverse onus situation.