The Canadian criminal justice system is designed to protect society from individuals who break the law. The system works fairly in that it affords the accused persons certain pre-trial rights, including the right to be granted reasonable bail unless there is a just cause for detention. This basic entitlement fortifies the right to be presumed innocent until proven guilty and safeguards the freedom of persons facing criminal charges.

In this comprehensive article, we will explore all the aspects of bail, including the types of bail, eligibility criteria, reasons for denying bail, and how the bail system works in Canada.

Note: If you’re charged with a criminal offence and are awaiting a bail hearing, our criminal defence lawyers can help you prepare for the hearing and get released under reasonable bail conditions. Contact our office today by calling 647-696-7904 or requesting a consultation online.

What Is Bail?

Bail, otherwise referred to as Judicial Interim Release, is the release of an accused person from custody as their case proceeds through the court system until a final decision is reached. Release on bail is usually subject to certain conditions, which differ based on the alleged crime and other factors.

Bail is a fundamental part of the criminal justice system. As mentioned earlier, everyone has the right not to be denied reasonable bail unless there’s justifiable cause to hold them in custody. This right is guaranteed by Section 11(e) of the Canadian Charter of Rights and Freedoms.

The main purpose of bail in Canada is to ensure that persons facing criminal charges are not unfairly held in custody and to maintain the justice system’s integrity. It also protects society, including victims who may be involved in a case, by ensuring that people who are likely to re-offend are not released or are released under strict conditions. As mentioned earlier, the bail process also enforces the presumption of innocence as you await trial.

Types of Bail in Canada

There are several ways that one can be released from police custody after being charged with a criminal offence. Depending on the criminal allegations against you, you can either be released by the police or be held in custody for a formal bail hearing.

What bail options are available to the police and courts? Let’s have a look.

Release by The Police

If you are arrested and charged with a criminal offence, the police may decide to release you without the need to appear before a judge or justice of the peace. They can release you after the arrest, either at the scene of the alleged crime or after processing at the police station.

The bail options available to the police are:

1.     Notice to Appear

A notice to appear, otherwise referred to as an appearance notice, is reserved for persons with minor to no prior criminal charges who are now arrested for a small crime. The arresting police officer exercises their discretion and issues an appearance notice if they deem your history and current allegations minor.

An appearance notice has minimal conditions. The main conditions included in the document are the day you’re required to attend court and the day you should report to the police station for fingerprinting. Missing your court date or identification date violates the terms of your release, and an arrest warrant may be issued.

2.     Undertaking

An undertaking is usually issued when the police officer considers your charges or criminal history serious but not enough to be held in custody for a formal bail hearing. This type of police bail is issued where more conditions than those in a notice to appear are necessary.

An undertaking and a notice to appear have some similar conditions, including the court date and fingerprinting date. However, depending on the alleged offence, your undertaking can have other conditions, including:

  • Curfew
  • A no-contact order with specified persons
  • Travel restrictions – no leaving the province
  • Abstain from alcohol consumption
  • Keeping the peace

If you agree with the terms and sign the undertaking, you have to follow the conditions or risk getting charged with failure to comply. It’s always advisable to seek legal advice and representation from an experienced bail lawyer before signing an undertaking to ensure fair conditions are provided.

Release by The Court

Sometimes, the police may hold you in custody rather than release you on police bail. In such cases, you have the right to be brought before a justice of the peace or a provincial court judge for a formal bail hearing within 24 hours of your arrest or “as soon as possible.”

Canada’s bail system is complex, and it’s best to have a lawyer by your side during your hearing. They’ll help prepare a viable bail plan that tackles any concerns the prosecution may have against your release and ensures reasonable bail conditions.

Canadian bail courts have the following release options:

1.     Release Without Conditions

If the prosecutor is unable to show cause as to why you should be detained or released with conditions, the judge or justice of the peace may grant you judicial interim release without any conditions. All you’ll have to do is attend court as scheduled. This type of release is typical in minor criminal charges.

2.     Recognizance

Recognizance can be defined as a release from custody by the court, under specific conditions, as your case proceeds through the criminal justice system. The document usually states the terms of your release, which you’re expected to follow until your case is resolved or the terms are changed.

Recognizance bail can be either with or without a cash deposit and surety.

       i.         Recognizance with Surety Bail

A surety is a person, normally a relative or friend, who takes the responsibility of supervising an accused person when they’re released from custody as they wait for their case to be resolved. A surety has three main duties:

  • ensuring that you attend court as required
  • ensuring that you abide by your release conditions
  • reporting you to the police if you break any of your bail conditions

In this type of recognizance release, the surety has to promise to pay the court a certain amount of money if the accused breaches bail conditions. This is one of the most onerous types of bail release and is only considered if the judge or justice of the peace is convinced that a surety is necessary. Most persons facing criminal charges are released on recognizance with a surety.

     ii.         Recognizance with Cash Bail

Cash bail involves depositing money or an item of value into the court to guarantee that you will attend court hearings after your bail release. This release option is the most onerous and is only used in exceptional circumstances where the accused doesn’t have a surety or is not a resident of the province they’re facing criminal charges.

The amount of money required for cash bail depends on several factors, including the seriousness of the alleged offence. If you breach bail conditions or fail to appear in court, you must forfeit the deposited money or valuables.

    iii.         Recognizance Without Surety and Cash

In some cases, the accused can be released on their own recognizance without a cash deposit or surety. They only need to promise to pay the court a certain amount of money if they breach their bail order.

This is one of the least onerous bail releases in Canada. However, it’s good to work with a lawyer to ensure that the terms of your release are reasonable.

Eligibility for Bail in Canada

Who Can Apply for Bail?

As per section 11 of the Canadian Charter of Human Rights and Freedoms, everyone has the right to be granted reasonable bail unless there’s a just reason for detention. This means anyone charged with a criminal offence has the right to apply for bail.

However, getting bail is not an automatic right. If the prosecution convinces the judge you shouldn’t be released, you will remain in jail awaiting trial. This can also happen in “reverse onus offences” when you fail to show the bail court why you should be released back into the community.

Factors that Influence the Granting of Bail

During bail hearings, there are a number of factors that influence the court’s decision to grant or deny bail. These factors are also considered by police officers when considering whether to release you or hold you in custody.

The factors that influence granting of bail include:

  1. Nature and gravity of the offence: the type and nature of your alleged offence greatly influence the success of your bail. The more serious the offence, the less likely you’ll be released on bail. When it comes to some indictable offences, such as murder charges, drug offences and sexual assault, the accused has to show the court why he should be released back to the community, i.e., reverse onus. This is unlike normal bail proceedings for other offences where the crown prosecutor has to prove why you should remain in custody awaiting trial, i.e., if they do not agree to your release.
  2. The accused’s criminal record: if you have a criminal history, especially a serious one, you’re less likely to be released on bail. A repeat offender is considered a danger to the public as they’re likely to commit further offences when released from custody.
  • Risk of flight: if you’ve skipped bail before, you’re less likely to be granted bail. Other factors considered under risk of flight include access to funds, citizenship status and ties to other countries.
  1. Public view of the justice system: will releasing you lower the public’s view of the criminal justice system? If so, you’re less likely to be granted bail. Maintaining the public’s confidence in the criminal justice system is important, and bail courts must consider if releasing an accused person compromises its integrity.
  2. Likelihood to attend court: if the accused party is likely to skip bail or miss court, they will likely be held in custody to ensure they attend court.

Working with an experienced criminal defence lawyer who’s well-versed in criminal law can help you successfully navigate Canada’s bail system to secure your release. Get in touch with Jeffrey Reisman today for expert legal advice on all bail matters.

·      How Bail Conditions Can Affect Eligibility

If a person accused of a criminal offence is released on bail, the police or court may impose some conditions. These conditions vary in strictness depending on the specifics of the case and the accused’s circumstances. Some conditions that can be imposed include staying away from certain persons (the alleged victim or family), curfew, reporting to a police station and an order not to communicate with a co-accused.

In certain cases, the bail conditions imposed can be overly strict and hard to follow, e.g., prohibiting an alcoholic from drinking. This leads to a breach of the release terms since it’s difficult to comply with them, causing a revocation of your bail. Breaching bail conditions affects your eligibility for bail in the future. Therefore, it’s important to ensure that your bail provisions are reasonable by enlisting the services of a bail hearing lawyer in Ontario. Call 647-560-9057 to schedule your free consultation.

How Bail Works in Canada

·      The Bail Hearing Process

If you’re charged with an alleged crime, the police may release you on an undertaking or appearance notice. If the police do not release you, you have the right to be taken before a judge or justice of the peace within 24 hours or as soon as possible for a formal bail hearing.

During a bail hearing, the prosecutor presents their case before the court. They usually have the burden of showing why the accused should be held in custody. Note that the prosecutor can consent to or argue against the accused’s release. After the Crown presents its case, the defendant’s lawyer demonstrates to the court why the accused should be released.

Note that the defence carries the burden of proof in certain offences and must show why the accused person should be granted bail. This is referred to as reverse onus.

After both the prosecution and defence present their case, the court determines whether to release or detain the accused person until their trial or until another case outcome, e.g., a guilty plea or dismissal of charges. When making this decision, the court considers several factors, including the gravity of the offence, the chances that the accused attends court after release and criminal history.

If the court grants you bail, your release will be subject to certain conditions you should follow until your case is resolved. Failure to comply with your bail provisions will lead to a cancellation of your release, an arrest and new charges for breaching court orders.

·      How Bail Can Be Changed or Revoked

Bail can be revoked under the following circumstances:

  1. if you breach any of the terms of your release order and the prosecution can prove it before a justice
  2. the court can revoke your release if the prosecution applies for a revocation

It’s common for accused persons facing charges to agree to a release option without fully comprehending how the imposed conditions will restrict one’s liberties. If you’re released on bail only to find that certain conditions are unworkable, it might be possible to change them. This is referred to as varying bail conditions.

Altering your release conditions is not an easy process, which is why it’s advisable to retain a criminal lawyer with extensive knowledge and experience at the start of your bail hearings.

Bail variation can only occur through an appeal or with the written consent of the prosecutor. Get in touch today if you’re looking to vary your bail conditions. Jeffrey Reisman has the expertise to help you fight unreasonable release conditions.


Bail is a crucial part of the Canadian criminal justice system. Understanding the various types of bail, bail eligibility, and other parts of the bail system can help you easily navigate the process if you’re arrested and charged with an offence. Gaining your liberty as you go through the criminal process is vital as it helps you strategize efficiently with your lawyer and continue with your day-to-day life.

If you’re facing criminal charges, securing expert legal representation is important to ensure your rights are protected throughout the process. An experienced lawyer will guide you through your bail hearing and ensure you’re not denied reasonable bail.

Call us at 647-560-9057 to speak to our bail hearing lawyer today or request a free consultation online.