In Canada, if you are charged with a criminal offence, you are guaranteed the constitutional right to obtain “bail” on such terms that are reasonable, and not to be denied bail without just cause. Most commonly, “bail” is understood to mean the release of an accused by a justice (either judge or justice of the peace), also known as “judicial interim release.” This may occur after a bail hearing, or with the consent of the Crown without the need for a hearing.
A justice may order your release on either an “undertaking” (a formal promise) or a “recognizance.” Both forms of bail will often impose conditions on you that you must follow while you are on release. The key difference between the two forms, is that the conditions on a recognizance are supported by an obligation to pay money to the Crown if the conditions are breached. A recognizance is the most common form of judicial interim release.
The police have discretion whether they will release you after arrest, without the to appear before a justice, on a simple “promise to appear” or an “undertaking to a peace officer” with conditions. However, the police may also decide to hold you for bail, which means you will be kept in custody until a justice decides whether you should be released.
There are several factors that the police may consider when deciding if you will be released from police custody or held in custody until a bail hearing. For example, they may consider whether you have a prior criminal record, the seriousness of your charges, whether you are already on bail for other charges at the time of your arrest, or if the police have a reason to believe you would not make your court date. This list of factors is not exhaustive and the police have broad discretion as to whether you will be released or held for a bail hearing. If you are held for bail, you will typically appear in court within 24 hours of your arrest, but it can take longer in certain circumstances.
It is important to understand that at the bail hearing stage, you cannot dispute the charges against you, and must not attempt to offer excuses or defend yourself. The sole purpose of the bail hearing is to determine whether you should be released.
If the Crown does not consent to your release, there will likely be a contested bail hearing, also known as a “show cause” hearing. At the hearing, the burden is usually on the Crown to “show cause” as to why you should not be released. However, there are a few charges for which the burden is on the Defence, commonly referred to as “reverse onus” offences. For example, if you were arrested for breaching your bail conditions, you will be required to “show cause” as to why you should not be detained.
At the hearing, you can expect the Crown to read the allegations against you from a summary prepared by the police, which is known as the “synopsis.” Your lawyer will then present evidence to satisfy the Court that, if you are released, you will appear in court as required, and not commit any further offences or pose a risk to public safety. This usually involves presenting the Court with one or more sureties capable of supervising you and an adequate plan of supervision.
After hearing from the Crown and your lawyer, the Justice will then make a decision about your release. If you are granted bail, you will typically be released from the courthouse. If you are denied bail, there will be an order that you remain detained until your matter is concluded. However, an experienced defence lawyer may be able to assist you with securing bail even if you were ordered detained at your first bail hearing.
In most cases, the burden is on the Crown to show cause why you should not be released on bail. The law states that the Crown can only justify your detention on one of three grounds:
If the Crown cannot satisfy the justice that your detention is justified on one or more of these three grounds, you will be released. However, there are some charges for which it is your burden as the accused to show cause why you should not be detained.
A surety is a person who is responsible for supervising an accused, typically a family member or a friend. The responsibilities of a surety include making sure the accused person comes to court as required, and making sure that the accused person obeys each and every condition of the bail order (or “recognizance”).
If you are accepted as a surety, you must sign the recognizance with the accused. It means that you agree to pay a specified amount of money if the accused person fails to obey the court order. If the Crown does not consent to the accused’s release, it will be up to the justice if you are a suitable surety. To qualify as surety, you may have to testify in court about your finances, your personal character, or background. As a surety, you must also remember that accepting a fee for acting as surety, or being paid back in return for acting as surety is illegal.
In Canada, in most cases, you and/or your surety will pledge a certain amount of money that will only be payable if you breach any of your conditions, without the need for a cash bail. There are certain circumstances when a cash bail will be required. For example, if you are not ordinarily a resident of the province, you will likely have to post a cash deposit.
Because you are presumed innocent until proven otherwise, the law requires a justice to impose the least onerous/restrictive bail terms, unless the Crown shows why more restrictive terms are necessary.
The restrictive nature of your bail terms will therefore vary depending on the nature of the allegations against you. While some people may be able to carry out their daily routines while on bail, those charged with serious offences may be placed on curfew or even house arrest. At the bail hearing, it is your lawyer’s job to argue for the least restrictive bail conditions that are reasonably possible.
In any event, it is important to remember that any condition that is imposed on you must be followed until it is changed or the matter is completed.
Yes, they can. Bail variations can be done out of court with the consent of the Crown at any time prior to the end of your matter. If the Crown does not consent, bail conditions can only be varied by making an application to the Court. You should always speak to your lawyer first if you seek to make any changes to your bail conditions.
There are many factors that a justice may consider. The factors are case-specific and not all factors will be examined in every case. For example, some of these factors include:
If you are denied bail, there will be an order that you remain detained until your matter is concluded. In this case, it is open to you to make an application for bail to a judge. You should always consult a lawyer if you plan to bring such an application.
Bail hearing for minors is largely the same as a bail hearing for adults, with a few notable differences. Some of the differences are:
This is not a complete list of differences, so be sure you speak with your lawyer about all of your options.
Yes, it can. The Crown may, under s. 521 of the Criminal Code, apply to a judge to review the decision to release you on bail. If the Crown makes such an application in an effort to have you detained again, it is in your best interest to consult a lawyer.
You must obey all bail conditions from the moment you sign your bail document (undertaking or recognizance). These conditions will remain in place until your matter is completed or your conditions are varied. If you are having a difficulty following your conditions, it is important that consult a lawyer about the possibility of changing them as soon as possible. Remember, if you breach your conditions, you will likely face additional breach charges and risk being denied bail.
In some cases, you can. If you are held for a bail hearing, depending on the seriousness of your charges and your personal circumstances, the Court may see fit to release you on an undertaking or recognizance without sureties. If a surety is required but you don’t have anyone to act as surety for you, there are organizations that may be able to take the place of a surety and supervise you during your release, such as the Toronto Bail Program or the John Howard Society.
The most important thing that your lawyer will do is advocate for your rights and interests. Typically, this means trying to convince the Crown to agree to your release with the appropriate conditions and plan of supervision. This is referred to as a “consent release.” If that fails and a contested bail hearing is held, your lawyer will then advance evidence and arguments on your behalf to convince the court that you should be released on the least restrictive conditions reasonably possible.
While your lawyer is meant to protect your interests, the Crown’s is to protect the general public’s. The public has interest in your detention if your detention is required to ensure your attendance in court, to protect the public and any victims, or to maintain the public’s confidence in the justice system. It is the Crown’s burden to satisfy the court that your detention is justified for these reasons.
You can expect a judge or justice of the peace to preside over you bail hearing. Their role is to assess any evidence presented, hear arguments from both sides, and apply the law to determine whether your detention is justified, and if not, the appropriate terms of release.
At your bail hearing, you can expect the Crown to read the allegations against you from a summary prepared by the police, which is known as the “synopsis.” Your lawyer will then typically present evidence to satisfy the Court that you can be safely released. This may sometimes require calling your surety/sureties to testify and presenting an adequate plan of supervision.
After hearing from the Crown and your lawyer, the justice will then make a decision about your release. If you are granted bail, you will be released from court after signing a document with certain conditions you must follow. If you are denied bail, there will be an order that you remain detained until your matter is concluded. However, an experienced defence lawyer may be able to assist you with securing bail even if you were ordered detained at your first bail hearing.
