What is a Bail Hearing in Ontario and How Does It Work?

After an arrest in Ontario, one of the first legal steps an accused person may face is a bail hearing. A bail hearing is a court proceeding in which a judge or justice of the peace decides whether an individual should be released from custody while awaiting trial.

This process is crucial because it balances an individual's constitutional right to liberty with the need to protect public safety and ensure the accused's attendance at future court dates. Understanding how bail hearings work is a crucial first step for anyone navigating the Ontario criminal justice system.

Understanding the Concept of Bail

Bail—formally called judicial interim release—is the process that lets an accused person stay in the community after arrest while a charge works its way to trial. Section 11(e) of the Canadian Charter of Rights and Freedoms guarantees the right “not to be denied reasonable bail without just cause,” embedding the presumption of innocence into pre-trial procedure. 

The purpose of bail is not to punish the accused person, but to:

• Ensure the accused returns for all required court appearances.
• Prevent potential harm to the public, victims, or witnesses.
• Uphold trust in the fairness and integrity of the justice system.

The Bail Hearing Process Explained Step-by-Step

The bail hearing process in Ontario follows a clear series of steps, designed to protect the rights of the accused while considering public safety. Below is a step-by-step outline of how the process typically unfolds:

1. Arrest and Booking
   After you are arrested, you will be taken into custody and booked by police. This includes recording your personal information, charges, and other relevant details.
2. Initial Release Decision by Police
   The police officers will first assess whether you can be released with conditions. This may involve issuing an appearance notice, an undertaking, or deciding to hold you for a bail hearing.
3. Bail Hearing Within 24 Hours
   If you are detained, you must be brought before a judge or justice of the peace for a bail hearing, usually within 24 hours or as soon as possible.
4. Presentation of Evidence and Arguments
   At a bail hearing, the prosecutor must justify keeping you in custody. The Charter starts from a presumption of release: you remain free unless the Crown proves detention is necessary. You—or your lawyer—can present a detailed release plan that addresses the court’s worries about community safety or your return for future court dates..
5. Decision by Judge or Justice of the Peace
   After hearing arguments, the judge or justice of the peace decides whether to release you or order continued detention. If release is granted, the order lists every condition and, where required, a monetary pledge or cash deposit.
6. Option for Bail Review
   If bail is denied or the conditions set are unsatisfactory, you may apply for a bail review in a higher court to seek a reconsideration of the decision.
7. Post-hearing logistics – Paperwork is prepared; sureties sign undertakings and police arrangements are made for your release from custody.

Each participant—the Crown, the defence, and the judge or justice of the peace—plays a distinct role in ensuring that the process is fair and consistent with legal principles.

What Factors do Judges Consider at Bail Hearings?

During a bail hearing, judges and justices of the peace consider several important factors to determine whether an accused person should be released and under what conditions. These factors help ensure that decisions are made fairly and with regard to both individual rights and public safety.

Section 515(10) of the Criminal Code sets out three “grounds” on which a person may be detained:

• Flight Risk
  Judges assess the likelihood that you will attend future court dates. Factors such as ties to the community, employment, family obligations, and past compliance with court orders are considered.
• Public Safety Concerns
  Your criminal history, the nature and severity of the current charges, and any potential risk to victims or witnesses are evaluated to determine if your release would pose a danger to society.
• Likelihood of Reoffending
  If you have a history or pattern of criminal behaviour, it can weigh against release if there is a concern that you may commit further offences while on bail.
• Maintaining Public Confidence in the Justice System
  Judges will also consider whether releasing you would undermine public confidence in the administration of justice, particularly in cases involving serious offences.
• Special Consideration for Vulnerable Groups
  Courts must also take into account the circumstances of Indigenous individuals and other marginalised groups, following principles set out in Canadian law to address systemic disadvantages.

Ultimately, judges must weigh the presumption of innocence against these risks. If suitable conditions can adequately address the risk, release should be ordered.

What is a Surety and Why is It Important for Bail?

A surety is a person who agrees to supervise an accused individual while they are out on bail, ensuring they follow the court’s conditions and attend all required court dates. In Ontario, sureties rarely deposit cash; they typically sign a recognisance pledging assets that can be forfeited if they fail in their duties.

In many cases, having a suitable surety is a critical factor in securing release from custody. A surety’s responsibilities typically include:

• Monitoring Compliance: Ensuring the accused follows all bail conditions set by the court.
• Ensuring Court Attendance: Making sure the accused appears at all scheduled court proceedings.
• Providing a Financial Guarantee: Promising to pay a specified amount of money if the accused fails to comply with their bail conditions.
• Reporting Breaches: Informing the authorities immediately if the accused breaches any bail terms.

To qualify as a surety, an individual must generally:

• Be a Canadian citizen or permanent resident.
• Be at least 18 years old.
• Have no outstanding criminal charges or a serious criminal record.
• Be willing and able to take on the responsibility of supervision.

Courts take the role of a surety seriously, and a strong surety plan can significantly strengthen a bail application.

What Are the Common Types of Bail Conditions?

When an accused person is released on bail in Ontario, the court may impose conditions designed to manage any risks identified during the bail hearing. These conditions are guided by the ladder principle, which means the least restrictive conditions necessary must be used to ensure public safety and court attendance.

Common bail conditions include (s. 515(4) of the Criminal Code):

• Reporting to Authorities: Requiring the accused to report regularly to a police station or bail supervisor.
• Curfews or House Arrest: Imposing restrictions on when the accused must be at a specific residence.
• Geographical Restrictions: Prohibiting the accused from being in certain locations or communities.
• No Contact Orders: Barring communication or contact—direct or indirect—with alleged victims, witnesses, or other specified individuals. 
• Surrendering Passports and Travel Restrictions: Preventing the accused from leaving certain jurisdictions or the country.
• Abstaining from Drugs and Alcohol: Prohibiting the use of non-prescribed drugs or alcohol, particularly where substance use is connected to the allegations.
• Weapons Prohibitions: Prohibiting the possession or acquisition of firearms and other weapons.
• Electronic Monitoring: Using devices to track the accused’s location if necessary.

The conditions imposed are intended to specifically address the risks identified, while respecting the accused’s right to reasonable bail. Remember: breaching any condition—even one that seems minor—creates a new criminal charge.

When Can Bail Be Denied in Ontario?

Bail can be denied in Ontario when certain legal grounds, outlined in the Criminal Code of Canada, are satisfied. The court must have just cause to order continued detention, balancing individual rights with public safety and confidence in the justice system.

The three primary grounds for denying bail are:

• Primary Ground: Concern that the accused is unlikely to attend court when required.
• Secondary Ground: Concern that the accused poses a risk to public safety, victims, witnesses, or is likely to commit further offences if released.
• Tertiary Ground: Concern that releasing the accused would undermine public confidence in the administration of justice, particularly in serious cases.

In certain situations, such as serious charges involving violence or firearms, a reverse onus applies, meaning the accused must show why they should be released rather than the Crown having to prove why they should be detained.

What is a Reverse Onus Bail Hearing?

Normally, the Crown must establish why you should be held. In reverse-onus situations, you must convince the court that release is appropriate. Reverse-onus applies when the charge or personal history triggers section 515(6) of the Criminal Code—for example:.

Common situations where a reverse onus applies include:

• Murder or attempted murder charges
• Serious firearm and weapons offences
• Serious repeat violent offences
• Intimate partner violence where there are prior convictions
• Drug trafficking, importing, or exporting offences
• Breach of previous bail involving indictable offences.

This shift in responsibility makes obtaining bail more challenging, highlighting the need for careful preparation and strong supporting evidence during the hearing.

What Are the Consequences of Breaching Bail Conditions in Ontario?

Failing to comply with a release order is an offence under section 145 of the Criminal Code, carrying up to two years’ imprisonment on indictment.  Consequences of breaching bail conditions include:

• Forfeiture: The surety will forfeit any pledged or deposited money.
• Immediate Re-Arrest: The police may arrest the accused and hold them in custody until a new hearing is held.
• New Criminal Charges: Breaching bail conditions can lead to additional charges, such as failure to comply with a release order.
• Increased Difficulty Obtaining Future Bail: A breach can negatively impact future bail applications, making it harder to secure release.
• Adverse Impact on the Original Case: A breach can influence sentencing if ultimately convicted.

Following all bail conditions carefully is crucial to maintaining release status and avoiding further legal complications.

Why Legal Representation is Crucial at Bail Hearings?

Bail sets the tone for the rest of a criminal case. Experienced counsel is important for protecting your rights and presenting a strong case for release. A criminal defence lawyer can negotiate for bail and advocate for favourable conditions, prepare and present evidence strategically, and ensure that Charter rights are upheld throughout the process. 

Skilled legal counsel also works to secure the least restrictive conditions possible, helping you navigate the hearing with a clear focus on achieving the best outcome based on the circumstances.

Frequently Asked Questions About Bail Hearings