Introduction
“Bail set not met” is alive and well. In R. v. A.K., 2026 ONSC 2262 (unreported), a recent ruling from the Ontario Superior Court (argued by Boris Bytensky, partner at Bytensky Shikhman Barristers), Justice Harris concluded that two past rulings on the validity of “bail set not met” orders were “wrongly decided” and should not be followed. 1 In the same vein, the Court clarified that the ladder principle does not apply to the form of release in reverse onus situations, but that it continues to apply to the conditions of bail imposed.
These two important implications, the revival of “bail set not met” and the clarification on the applicability of the ladder principle, arising from the decision are discussed below and considered in light of the proposed changes found in Bill C-14.
What is “bail set not met”
As the Court in A.K. described it, “bail set not met” is not particularly “descriptive nor helpful” term for the order to which it refers. In essence, “bail set not met” indicates a type of bail order where a judge or justice of the peace finds that the accused is releasable, yet the proposed plan (i.e., the lack of an adequate, surety, for example) is insufficient to satisfy immediate release.
In such a situation, the bail proceeding proceeds in two stages. The release order is made, but is only executed when the missing piece is satisfied. To continue with the example, once the accused finds an adequate surety, a separate hearing would be held for the surety to be approved by the court. The purpose of such an order is an attempt to ensure the efficient functioning of our bail system.
Reviving “bail set not met”: R. v. C.S. and R. v. A.K.
In R. v. C.S., 2023 ONSC 6406, the Court held that “bail set not met” was not a valid order known to law and inapplicable in reverse onus situations. 2 In arriving at this conclusion, the Court reasoned that past use of the order was grounded in a misapplication of s. 515(2.1) which empowers “…the judge, justice or court [to] name particular persons as sureties.” S. 515(2.01), codifies the ladder principle which means that, “unless the prosecution shows cause” why a less restrictive form of release “would be inadequate,” the court must release on the least onerous form of release.
As the Court held that the ladder principle does not apply to reverse onus situations, and as the provision (515(2.1)) is “inextricably linked to ss. 515(2) and (2.01),”
The Court held that the Criminal Code is not permissible and mandates detention if the accused does not satisfy the court that release is justified. 3 Following C.S., in R. v. Parkes, 2024 ONSC 3368, the Court quashed a “bail set not met order” made by the lower court, ruling that the releasing justice was bound by C.S. Interestingly, however, the Court in Parkes noted that “…the issues of concern identified by the Justice of the
1 R. v. A.K., 2026
ONSC 2262 2 R. v. C.S., 2023
ONSC 6406 at para 34. 3
Ibid at para 28.
Peace suggest that Abrams J’s decision [in C.S] was reached per incuriam,” 4 yet reasoned that, even if C.S., had considered the relevant case law, the result would have been the same and thus should not be overturned.
In A.K., however, the Court, in applying the principles arising from R. v. Sullivan, 2022 SCC 19, ruled that the C.S., was reached per incuriam and must be overturned. Centrally, Justice Harris found that C.S., failed to consider a line of case law on the validity of the order, noting that
“[t]he departure from precedent and practice in C.S. and its consequence to the administration of justice are matters of serious concern. Here, the inadvertence cancelled out a whole line of jurisprudence extending back many years” 5 In conducting its own analysis, justice Harris concluded that the order is well supported and Sullivan, then, necessitates a finding that C.S was decided per incuriam and should not be followed. 6 As a result, it appears the A.K., has resuscitated bail set not met as a valid order at law.
R. v. A.K., and Bill C-14
Interestingly, R. v. A.K., largely aligns with changes to bail proposed in Bill C-14, including, for example, clarifications to the applicability of the ladder principle in reverse onus situations. Some erroneously believe that the ladder principle applies only to the form of release and not the conditions of release.
In short, the form of release encapsulates the requirements that must be met to satisfy the court that release is justified, such as the need for a surety. The conditions of release refers to, for example, the imposition of GPS monitoring or a curfew while on bail. In R. v. Antic, 2017 SCC 27, the Supreme Court stated, at para 4, that
the ‘ladder principle’, which is codified in s. 515(3) [the predecessor to section 5(2.01)] of the Code, requires a justice or a judge to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case.
In other words, Antic makes clear that the ladder principle requires the Crown to justify why a less restrictive form of release is insufficient prior to pursuing a more restrictive one (at least in Crown onus situations). 7 Beyond the form of release, however, it is, in fact, well established that the ladder principle also applies to the conditions of release. In R. v. Zora, 2020 SCC 14, for example, the court held, at para 24, that.
4 R. v. Parkes, 2024 ONSC 3368 at para 37.
5 A.K., at para 46.
6 A.K., at para 75.
7 Criminal Code, RSC 1985, c C-46, s. 515(2).
The jurisprudence mandates that judicial officials respect the ladder principle, meaning that they must consider release with fewer and less onerous conditions before release on more onerous ones.… [Conditions, both non-enumerated and enumerated] … must be minimal, necessary, reasonable, the least onerous in the circumstances and sufficiently connected to a risk listed in s.515(10)…. The ladder principle applies to conditions of release just as it applies to forms of release…[emphasis added]
The decision in A.K., clarifies the applicability of the principle in reverse onus situations in the same manner as does the Bill.
Proposed s. 515(2.04) makes clear that the ladder principle does not apply to the form of release in reverse onus situations, while clarifying that the principle continues to apply to the conditions of release. As was stated in A.K., “a judge should never impose conditions more restrictive than necessary.” 8 In other words, although application of the ladder principle as it relates to form of release is eliminated for reverse onus situations, proposed s. 493.11(2)(d) of Bill C-14 not only preserves application to the conditions of release, but actually codifies its applicability for the first time.
While Bill C-14 is yet to become law, and the impact of the decision in A.K., remains to be seen due to its recency, it appears that applicable principles, particularly in reverse onus situations, have gained clarity as a result.
8 A.K., at para 61.
