A Saskatchewan Contribution to Enduring Inconsistencies in Bail Law

The inconsistent application of bail law across provinces and territories has resulted in increased guidance from the Supreme Court of Canada, most recently in the decision of R v Zora, which focuses on appropriate conditions of pre-trial release. Since bail law is largely conducted at the trial level, the effect of this guidance must be measured within the provincial, territorial, and superior courts. In Saskatchewan, the post-Zora decision of R v Raheem-Cummings suggests that the province continues to contribute to an inconsistent approach to bail law in Canada.

By Kane Fritzler*


In the 2017 decision of R v Antic,1 the Supreme Court of Canada explicitly acknowledged an underlying concern of “widespread inconsistency in the law of bail.”2 Justice Wagner (as he then was), writing for a unanimous court, stated the following: “Despite the fact that the [CriminalCode applies uniformly across the country some have suggested that courts are applying the pre-trial forms of release differently in different provinces and territories.”3 The decision in Antic represented a turning point. As Wagner J. stated, “[i]t is time to ensure that the bail provisions are applied consistently and fairly.”4 As a result, the Court advanced thorough guidelines for trial judges considering a pre-trial release.5 Notably, these included the presumption of innocence represented by the constitutional right of bail.6 Also included was a “ladder principle” favouring release at the earliest possible time and in the least restrictive manner7 unless an alternative form of release is proven necessary by the Crown.8

Subsequently, in the 2020 decision of R v Zora,9 Justice Martin built upon the Court’s analysis in Antic10 and specifically turned the Court’s attention toward the non-monetary conditions imposed on individuals when allowing pre-trial release.11 The Court thoroughly considered the general principles governing bail conditions, reinforcing that they must be necessary, reasonable, and sufficiently linked to the risks related to the offence.12 Significantly, the Court in Zora acknowledged that the broad issues present in bail law “are particularly evasive of [judicial] review,”13 owing largely to the temporary nature of the bail conditions themselves.14 Beyond a discussion of general principles, the Court in Zora went further by bringing attention to particularly problematic release conditions.15

Nonetheless, the guiding intention in Antic to create principles governing the fair application of bail provisions was equally apparent in Zora, as Martin J. indicated that “[a]ll persons involved in the bail system are required to act with restraint and to carefully review what bail conditions they either propose or impose.”16 With the enduring concern for inconsistency presented in Antic, it is well worth scrutinizing the trial level courts  in order to measure the impact of Zora, especially when considering the context of the judicial responsibility that is advocated for in Zora.


In Saskatchewan, one decision that applied Zora is R v Raheem-Cummings.17 This decision reviewed the accused’s denial of bail for drug- and weapons-related charges.18 Justice Mitchell of the Court of Queen’s Bench for Saskatchewan allowed Mr. Raheem-Cummings’s bail,19 and considered the guidance in Zora when imposing the conditions of release.20 However, the imposed conditions deviated from Martin J.’s guidance in a few significant respects.

First, one of the conditions of release was to “keep the peace and be of good behaviour at all times.”21 This is one of the specific conditions that “must be scrutinized” according to the Supreme Court in Zora.22 Unlike in instances of probation orders, there is no statutory requirement to impose this condition at the bail stage.23 Rather, this condition has long been considered problematic, as failing to comply with a condition of release is itself a criminal offence;24 it adds an additional layer of potential criminal culpability, often without any clear reduction of risk as a result.25 Consequently, the condition “‘is not in harmony with the presumption of innocence’ that usually applies when an accused is on bail”26 and “should be rigorously reviewed when proposed as a condition of bail.”27

However, this rigorous review, or any review for that matter, was completely absent from the reasons provided in Raheem-Cummings. Indeed, no mention of this condition appeared in the reasons until it was imposed.28 This absence suggests that the condition served as a boilerplate addition, rather than being related to any specific risk of the accused. While, admittedly, the ruling in Zora does not entirely forbid such a condition, this is likely the exact kind of misuse the Supreme Court cautioned against.

Next, the conditions for pre-trial release in Raheem-Cummings included that “the applicant shall not possess or consume illicit drugs that have not been prescribed for him by a medical doctor or other medical professional.”29 Once again, this type of condition was specifically identified as problematic in Zora.30 Martin J. stated that “judicial officials should be wary of conditions that may be directed to symptoms of mental illness. This includes alcohol and drug abstinence conditions for an accused with an alcohol or drug addiction.”31 In Raheem-Cummings, Mitchell J. noted that “[t]he applicant has struggled with drug addiction in the past” and “has not entirely conquered his addiction.”32

Despite this condition being the exact scenario that the Supreme Court warned required caution from a trial judge, Mitchell J. applied it with no additional consideration. Abstention conditions raise a valid concern relating to the reasonableness of the order;33 Martin J. in Zora reminded that “[i]f an accused cannot possibly abide by such a condition, then it will not be reasonable.”34 In order to adhere to Zora, this condition warranted, at the very least, prudent consideration before imposition, given that Mitchell J. had noted Mr. Raheem-Cummings’s struggle with addiction.35

The conditions of release in Raheem-Cummings are additionally concerning due to their volume: a total of twenty.36 Martin J. in Zora advanced the “cumulative effect of all the conditions” as an enquiry to ensure the conditions imposed reflect the principle of restraint.37 Each imposed bail condition, individually and in combination with the others, creates a unique way that a presumptively innocent accused may fail to comply and thus commit a criminal offence.38 As such, every single condition must be necessary, reasonable, and sufficiently linked to the offence.39 Martin J. noted in Zora that “[t]he problem arises if conditions are simply added, not because they are strictly necessary, but merely out of habit, because the accused agreed to it, or because some behavior modification is viewed as desirable. Bail conditions may be easy to list, but hard to live.”40 In Raheem-Cummings, Mitchell J. imposed several potentially habitual conditions, including to keep the peace and be of good behaviour,41 to abide by a strict curfew,42 and to conform to restrictions on his ability to possess and use a cell phone.43

Raheem-Cummings appears to mark another Saskatchewan contribution to ongoing inconsistencies in bail law. Although Zora was considered in Raheem-Cummings, the Court chose to contravene the Supreme Court’s guidance, which aimed to facilitate a uniform approach.


To some, the decision in Raheem-Cummings might seem insignificant. Yet that position would be unappreciative of the concern for inconsistency articulated in Antic,44 coupled with the evasiveness of the broad issues present in bail law as described in Zora.45 We cannot properly measure the progress of bail law solely through the consideration of Supreme Court decisions; the examination of trial-level decisions such as Raheem-Cummings is vital. Regarding inconsistency in bail conditions, unsubstantiated deviations from Supreme Court guidance, such as those in Raheem-Cummings, must be considered highly significant. In order for Canadian bail law at large to fall in line with the principles in Antic and Zora, the first-instance judiciary must be held to the highest standard of accountability. The Supreme Court in Zora repeatedly emphasized the importance of stringent judicial consideration, concluding as follows: “Judicial officials must therefore act with caution, with their eyes wide open to the consequences of imposing bail conditions.”46 It appears that, despite the warnings and guidance recently afforded in Zora, Saskatchewan is still contributing to the inconsistent landscape of Canadian bail law.

* JD Candidate (Saskatchewan).

1 2017 SCC 27, [2017] 1 SCR 509 [Antic].

2 Ibid at para 64.

3 Ibid at para 65.

4 Ibid at para 66.

5 Ibid at para 67. Antic produced eleven “principles and guidelines” to be followed when a court applies “the bail provisions in a contested hearing” (ibid).

6 Ibid at para 67(a).

7 Ibid at para 67(d), quoting R c Anoussis, 2008 QCCQ 8100 at para 23, 242 CCC (3d) 113.

8 Ibid at para 67(e).

9 2020 SCC 14, 446 DLR (4th) 358 [Zora].

10 Ibid at para 81.

11 Ibid at paras 83–99.

12 Ibid at paras 84–90. After discussing each condition’s requirement in turn, the Court advanced five questions that would be helpful in structuring an analysis, with each reflecting an implementation of the ladder principle (ibid at para 89).

13 Ibid at para 81.

14 See R v Penunsi, 2019 SCC 39 at para 11, 435 DLR (4th) 65 [Penunsi].

15 Zora, supra note 9 at paras 91–99.

16 Ibid at para 100.

17 2020 SKQB 342 [Raheem-Cummings].

18 Ibid at paras 1–2.

19 Ibid at para 92.

20 Ibid at para 91.

21 Ibid at para 92(1).

22 Zora, supra note 9 at paras 91, 94.

23 Ibid at para 94. See also Criminal Code, RSC 1985, c C-46, s 732.1(2)(a).

24 Zora, supra note 9 at para 94. See also R v K (S), 1998 CanLII 13344 at para 39 (Sask Prov Ct).

25 See e.g. Abby Deshman & Nicole Myers, “Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention” (July 2014) at 49–50, online (pdf): Canadian Civil Liberties Association <ccla.org/wp-content/uploads/2021/07/Set-up-to-fail-FINAL.pdf> [perma.cc/8GGE-RKBC].

26 Zora, supra note 9 at para 94, quoting R v Doncaster, 2013 NSSC 328 at para 17, 335 NSR (2d) 331.

27 Zora, supra note 9 at para 94.

28 Raheem-Cummings, supra note 17 at para 92(1).

29 Ibid at para 92(12).

30 Zora, supra note 9 at para 92.

31 Ibid.

32 Raheem-Cummings, supra note 17 at para 30.

33 Zora, supra note 9 at paras 92, 96. See also R v Omeasoo, 2013 ABPC 328 at paras 32–33, 37, [2014] 5 WWR 598 [Omeasoo].

34 Zora, supra note 9 at para 92. See also Penunsi, supra note 14 at para 80; Omeasoo, supra note 33 at paras 33, 37–38.

35 Raheem-Cummings, supra note 17 at para 30.

36 Ibid at para 92.

37 Zora, supra note 9 at para 89 [emphasis omitted].

38 Ibid at para 90.

39 Ibid.

40 Ibid at para 88.

41 Raheem-Cummings, supra note 17 at para 92(1).

42 Ibid at para 92(8).

43 Ibid at para 92(14).

44 Antic, supra note 1 at para 64.

45 Zora, supra note 9 at para 81. See also Penunsi, supra note 14 at para 11.

46 Zora, supra note 9 at para 106.