Bail in Canada refers to the release (or detention) of a person charged with a criminal offence prior to being tried in court or sentenced. A person may be released by a peace officer or by the courts. A release on bail by the courts is officially known as a judicial interim release. There are also a number of ways to compel a person’s appearance in court without the need for an arrest and release. The Canadian Constitution guarantees the right not to be denied reasonable bail without just cause.

Right to Reasonable Bail

The presumption of innocence is a cornerstone of our legal rights in Canada. According to legislation, bail has to be reasonable, but it should also be well-reasoned.

Section 11(e) of the Canadian Charter of Rights and Freedoms states: “Any person charged with an offence has the right not to be denied reasonable bail without just cause.” Bail is the first step in the criminal process. It is also one of the most important because if you are denied bail you will be held in custody until the case is decided or an appeal of the bail decision is presented. A bail hearing must be conducted properly to ensure that an accused is released. The criminal lawyers at Capulli Law – Vaughan Criminal Lawyers are available 24 hours a day, if you or a loved one requires immediate assistance.

What is a Bail Hearing?

When someone is arrested and charged with a criminal offence, they may be released if they sign a form saying they promise to attend court on the date given to them by the police.

If the police do not release them, the person who has been charged (who is called the accused) will be taken to court where a decision to release them or not will be made. In some cases, a bail hearing, which is like a short trial, is held and a judge or a justice of the peace decides whether the accused will get out on bail.

Bail hearings always take place in front of a Judge or a Justice of Peace.  They will decide if an accused should be released from custody while awaiting their trial. Usually, the Crown Attorney must prove (or “show cause”) why the accused should be kept in custody.  There are also “reverse onus” situations, like if the chargers are more serious or the accused has already been released.  During a “reverse onus” bail hearing the burden of proof is on the accused as to why they should be released from custody.

Section 515 of the Criminal Code of Canada

Section 515 of the Criminal Code of Canada governs bail hearings.  There are a number of factors that influence whether an individual being held in custody is released.  The first factor is who carries the “onus”, as listed above.  In most cases the Crown will have to “show cause”.  Simply put, the Crown will have to prove why a person should be held in custody.   There are also reverse onus situations, where an accused party must prove why their release is justified.  The three grounds that a person could be detained on are listed in Section 515 (10) of the Criminal Code of Canada.  They are commonly known as the “primary”, “secondary”, and “tertiary” grounds.

Primary Ground

Simply put, the court wants to be satisfied that the person comes to court and does not pose a flight risk.  In the Criminal Code of Canada Section 515 (10) (a) states that a person’s detention may be justified “where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.”

The Secondary Ground

In Section 515(10) (b) of the Criminal Code of Canada it is stated that: “where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.”

The key here is whether there is a “substantial likelihood” that a person will commit further criminal acts if released from custody or if they will interfere with the administration of justice (possibly tamper with witnesses or any evidence that may be used)

The Tertiary Ground

The tertiary ground is contained in Section 515(10) (c) of the Criminal Code of Canada and states that a person’s detention may be justified where:

“the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.”

After the decision in R v St Cloud the Crown is able to rely on the tertiary ground as a standalone ground.  It can be used for any offence.

What are “bail conditions”?

“Bail conditions” are rules that are imposed by the court.  An accused must follow them when they are released. Bail conditions are situation specific but some common bail conditions are:

  • Stay in Canada.
  • To surrender any passport.
  • To live at a specific address.
  • Follow a curfew if imposed.
  • To keep the peace, and be of good behaviour (i.e. not to commit any further criminal acts).
  • Not to attend certain places (possibly a shopping mall or a restaurant or bar) or to stay away from specific addresses (e.g. in domestic assault cases: the matrimonial home).
  • Not to communicate with specified individuals (e.g. spouses or witnesses)
  • Not to possess any weapons.
  • To report to the police (weekly, monthly, etc.).
  • To abstain from the consumption of alcohol or drugs.
  • Not to sit in the front seat of a motor vehicle.

If any of these conditions are broken the accused will be arrested and charged with “Failure to Comply”.  They will be brought back to court for another bail hearing. If this occurs the court could cancel the original bail and impose more stringent conditions if the accused party wishes to obtain a new release.  “Failure to Comply” is a breach of a court order and very serious.

What is a Surety?

In most cases a surety is a friend or family member that has a close relationship with the accused party.  A surety will give their consent to supervise an accused party.  They will also pledge a certain amount of money or security, which will be decided by the court. The role of the surety is to ensure that the accused party attends court and abides by the conditions as set out in their release.  It is especially important that the surety consent to report the accused party to the Police if they fail to comply with their conditions.  The role of the surety is an important one.  It is the strength of the surety that will decide if an individual is granted bail. In order to be a surety a person:

  • must be a Canadian citizen or a landed immigrant,
  • should not have a criminal record, and
  • cannot be a surety for more than one person at the same time

Can I be a surety?

The Ministry of the Attorney General has information on whether a person can be a surety.  The link below will take you to the Attorney General’s website:

Why Hire Capulli Law, Vaughan’s Premier Criminal Lawyers?

At Capulli Law, our Vaughan Criminal Lawyers understand that bail is one of the most crucial steps when defending any charge.  We will do whatever it takes to ensure that a bail hearing is held right away to ensure that an accused does not have to spend more time in jail.  Also, our Vaughan Criminal lawyers will make sure that the conditions imposed by the courts are not unnecessarily strict.  At Capulli law we will do whatever it takes to ensure that strict conditions like house arrest or curfews are not imposed.  We understand that conditions like these could have a detrimental impact on a person’s family life and employment.

With any bail hearing a lawyer and surety must be prepared and informed. At Capulli law, our Vaughan Criminal Lawyers will make sure that all potential sureties are prepared for all the different types of questions that will be asked by the crown attorney. Most people find a courtroom very overwhelming and stressful.  Let us help you prepare and alleviate any fear.

At Capulli Law, Vaughan Criminal Lawyers, we will ensure that your bail hearing goes as smoothly as possible.  Remember, the initial consultation is free. Do not hesitate to call Capulli Law, Vaughan Criminal Lawyers now at (647) 504-6878.