You have probably heard the term “bail” used in movies and television dramas, but you may be unfamiliar with how bail actually works in Canada. This article briefly explains how an adult, accused of a criminal offence, may obtain judicial interim release (also known as bail) from custody. Hopefully, this article sheds some light on this crucial component of the Canadian criminal justice system.
The Importance of Interim Release
The ability to seek and obtain interim release is a critical feature of the criminal justice process. Because the accused is presumed to be innocent until proven guilty, any restraint on liberty should be taken seriously. For this reason, a bail hearing (also known as a “show cause hearing”) is held to determine whether there is a just cause to detain the accused until the resolution of the case. In R. v. Wust, 2000 SCC 18; R. v. Hall, 2002 SCC 64; and R. v. Antic, 2017 SCC 27 the Supreme Court of Canada recognized that accused persons detained in custody are more likely to plead guilty, or be found guilty when they proceed with a trial. They are also less able to participate in preparing their defence.
The right of a person charged with a criminal offence not to be denied reasonable bail without just cause is enshrined in s. 11(e) of the Canadian Charter of Rights and Freedoms. This right has two aspects: 1) a person charged with an offence has the right not to be denied bail without just cause; and 2) a person has a right to reasonable bail (e.g. terms, amount).
Getting a Bail Hearing
After being arrested and charged with a criminal offence, an individual may be released by a police officer or held for a bail hearing before a justice or judge. The police have discretion to release an accused for some offences without any need for an appearance in court for a bail hearing.
If the police cannot, or choose not to, release the accused, the police are under an obligation to take the arrested person before a justice. This must occur without unreasonable delay, and within 24 hours.
In accordance with s. 515 of the Criminal Code of Canada, the accused is automatically entitled to a bail hearing if brought before the Ontario Court of Justice for an offence not listed in s. 469 of the Criminal Code, which includes serious indictable offences such as treason and murder.
Crown Must Show Cause
In bail hearings, there is an initial presumption that the justice should order the accused released on an undertaking without conditions, which is the least restrictive type of release. Generally, the prosecutor bears the onus to show cause, on a balance of probabilities, for why detention is justified, or why a more strict form of release ought to be ordered. This is why bail hearings are colloquially called “show cause hearings”.
In some situations, there may be a reverse onus requiring the accused to show why they should be allowed to go back into the community. This can happen when the accused was already on a release, but is now facing new criminal charges.
3 Grounds for Detention
Section 515(10) of the Criminal Code sets out the following 3 grounds on which an accused person’s detention can be justified. In a nutshell, they are the following:
The Primary Ground – The accused may not attend at court when required.
The Secondary Ground – The accused may commit another crime, or the public may not be safe, while they are out on bail.
The Tertiary Ground – The public may feel that the justice system is not working well, if the accused is released, due to the circumstances of the offence.
Bail Plan, Supervision, and Release
After hearing the evidence, a justice will decide to either release the accused on bail, or keep them in jail to wait for trial. The justice will consider the accused person's bail plan. The bail plan is the accused person's opportunity to address the Crown’s concerns about releasing them, and will contain information about potential sureties who can supervise the accused after release.
If the accused is released, the release order will often include conditions that must be followed. For example, the accused may be restricted from visiting a particular address or meeting a particular person. If the accused breaches the conditions, they could be put back in jail. If the accused is not released following a bail hearing, they cannot have another bail hearing until their case is resolved, or they are released following a bail review in the Superior Court of Justice.
If you or someone you know requires assistance with a bail hearing, contact a lawyer in your jurisdiction as soon as possible.
Blog posts are not legal advice.