Bail 101: Your Guide to Bail in Canada
When someone is arrested and charged with a criminal offence, they may have to come to court and ask to be released from custody pending their trial. If the court agrees, they’ve been granted bail.
Many people denied bail in Canada plead guilty just to get out of jail as quickly as possible, even if it would be difficult for the Crown to prove the case against them. Having to remain in custody for what can end up being several months or years until your trial can have a detrimental impact on your life and future. Your career or education will stop and meeting with your lawyer and participating in your defence become challenging and expensive.
This is why bail in Canada is crucial for an accused and why it’s essential to hire a top criminal lawyer in Toronto if you or someone you know is facing a bail hearing.
What is Bail in Canada?
Bail, or “Recognizance of Bail” as it’s known in Canada, is a court order allowing a person charged with a criminal offence (an “accused”) to remain in the community until their case is complete.
Everyone in Canada has the right not to be denied bail without just cause, as per section 11(e) of the Charter of Rights and Freedoms. When added to the presumption of the accused’s innocence until they plead guilty or are found guilty beyond a reasonable doubt under s.11(d) of the Charter, bail is supposed to be the rule and detention the exception.
However, there are many instances when a Crown attorney opposes bail for an accused. A bail hearing is then held before a judge or justice of the peace to decide if the Crown’s arguments against bail are compelling enough to deny it. The right Toronto bail lawyer will be prepared to answer the Crown’s concerns. More on that below.
Because the Crown (generally) has to show the court they have sufficient cause to deny bail, a bail hearing is also referred to as a “show cause” hearing. There are instances when the accused has the burden of proving they should be allowed bail if, for example, they were already on bail and arrested for another offence.
What Happens at a Bail Hearing?
If police suspect someone of committing a crime, they will arrest that person, whether there is a warrant for arrest in Canada issued against them or not.
Depending on the seriousness of the charge, they can release the accused immediately with a summons to appear in court at a specific date and time, hold them temporarily before releasing them or keep them in custody, usually in a jail cell at the police station or the courthouse.
If the police do not release the person, they must either bring them to court or video link them to a court within 24 hours of the arrest for a bail hearing.
Prior to the hearing, a prosecutor representing the Crown will review the accused’s file and decide if they will consent to let them out on bail or argue against it to convince the judge that the accused should remain in custody. An accused’s file typically contains a summary of the facts of the case prepared by the investigating officer(s) and the accused’s criminal record.
Some of the factors a Crown attorney considers when deciding to consent to or oppose bail include:
- The type of charge and nature of the offence, i.e., what the person is accused of doing.
- Potential danger to society or the accused’s alleged victim.
- The likelihood that the accused will come to court when required.
- The accused’s previous criminal history, including convictions for violating bail or probation rules in Canada.
- The likelihood the accused will commit another crime if released.
- How society would feel about the justice system if the accused were granted bail considering the allegations against them.
The Defence lawyer representing the accused in a bail hearing will usually have a release or bail plan to address the Crown’s or the court’s concerns if the accused is released on bail. That plan will likely speak to:
- Where the accused will live.
- Where the accused works or goes to school.
- How the accused will manage their court dates and be in court when needed.
- The accused’s ability and willingness to abide by any conditions the court imposes.
- Any counselling or therapy the accused will participate in to address issues like substance abuse and anger management.
- Who is available to supervise the accused to ensure they obey their bail conditions, don’t break any laws, and go to court when they’re supposed to, i.e., a who can act as a surety, if needed (more information below).
The judge or justice of the peace will grant bail if they are satisfied that the accused will come to court, follow their conditions, not break any other laws or be a danger to the community and that society would not lose confidence in the justice system if the accused were released given the circumstances of the case.
To reduce the risks to the community, the judge or justice of the peace will often grant bail with conditions the accused must obey or risk being re-arrested and charged with breaching the order. These conditions can include:
- A curfew.
- An order not to drink or use drugs.
- An order not to contact their co-accused.
To further reduce the risks to the community, the court will often grant bail on the basis that the accused has a friend or family member who is willing to act as a surety.
What is a Surety?
A surety is someone who agrees to supervise the accused and undertakes the following responsibilities:
- Making sure the accused comes to court on their scheduled court dates.
- Monitoring the accused to ensure they follow all their bail conditions and don’t commit any criminal acts.
- Calling the police if the accused disobeys any of the conditions.
The surety also agrees to pay an amount of money set by the court if the accused breaches their bail order. To be a surety, a person must:
- Know the accused.
- Be over 18 years of age.
- Be a Canadian citizen or Landed Immigrant.
- Not have any involvement in the case.
- Own some property such as a home, car, financial investments, etc.
If an accused doesn’t know anyone who can act as a surety for them, they may be able to use a bail program if one is available in the courthouse. Bail programs have rules about who they accept and offer supervision of the accused in place of a surety.