In Canada, if you are charged with an offence, you have a constitutional right not to be denied reasonable bail without just cause. This right is found under section 11(e) of the Canadian Charter of Rights and Freedoms. The laws governing bail in the Criminal Code of Canada are therefore designed to favour release and on the least restrictive terms possible. The underlying concept behind your right to bail is that you are innocent until the state is able to prove guilt beyond a reasonable doubt.
Bail means that the court is allowing you to remain in the community until your case is completed. Sometimes bail is easy to secure but other times a Crown prosecutor will oppose an accused’s release. If you have been arrested it is in your best interest to contact a criminal defence lawyer as soon as possible to assist in your bail hearing.
What is Bail?
Judicial interim release, commonly known as bail, is a court order which allows an accused to live in the community as their case works through the criminal justice system.
It is a form of contract between a Crown prosecutor and an accused where the Crown releases an accused in exchange for the guarantee that the accused will abide by the terms of release. Bail and its terms of release can only be decided by either a judge or a justice of the peace. Bail is governed primarily by section 515 of the Criminal Code of Canada.
What Happens At A Bail Hearing?
Following an arrest, police officers have the choice of either releasing an accused or keeping them in custody. If the police choose not to release an accused, a bail hearing for the accused must be conducted within 24 hours of being arrested if a judge or justice is available, or as soon as possible if one isn’t.
What happens during this initial hearing largely depends on what you’ve been charged with. If you have been charged with an offence not listed under section 469 of the Criminal Code, the accused will either be released on the consent of the Crown prosecutor, or the Crown will contest bail.
If an accused has been charged with an offence listed under section 469 of the Criminal Code, a justice of the peace is unable to conduct their bail hearing. The bail hearing will instead take place before the next available superior court judge conducting bail hearings.
Release on Consent
A Crown prosecutor may consent to the release of an accused with conditions. The terms of release will generally have some connection to the nature of the alleged crime. For example, an accused charged with theft from a store may be ordered to stay away from that store. The “onus”, or the burden, is on the Crown prosecutor to demonstrate why conditions and restrictions for an accused are necessary. Conditions are to be imposed with restraint so that an accused if released, deals with the least restrictive form of bail possible.
The burden is on the Crown to demonstrate to a judge why an accused should remain in custody, and it is their job to justify more restrictions and more conditions. However, there are many situations in which the responsibility is flipped, and the accused must provide evidence to prove that release is appropriate. This is called “reverse onus” and this reverse situation can include:
- Any offence listed under section 469 of the Criminal Code;
- Certain offences alleged to have been committed while already on bail or alleged offences that would be breaches of existing conditions;
- Any offence if the accused is not an “ordinary resident of Canada”;
- Certain offences alleged to have been committed for a criminal organization;
- Terrorism offences;
- Offences involving firearms or prohibited weapons;
- Certain more serious offences under the Controlled Drugs and Substances Act
Contested Bail Hearing
If the Crown prosecutor does not think it is safe to release an accused back into the community, then a contested bail hearing, or a “show cause” hearing, will be held. There are three possible grounds on which a Crown prosecutor can argue that detention is justified:
- Primary grounds: Detention may be justified if the accused is unlikely to appear in Court for future hearings;
- Secondary grounds: Detention may be justified if an accused poses a risk to public safety; and
- Tertiary grounds: Detention may be justified in order to maintain confidence in the administration of justice
What Are Possible Conditions of Bail?
In order to reduce risks to the community and ensure appearances in court, a judge or justice will often grant bail with conditions. The court has a wide discretionary range of conditions it can impose on an accused, such as:
- An order not to contact their co-accused
- An order not to drink or use drugs
- A curfew
- Report at a certain time to the police
- Remain within certain territorial boundaries
- Refrain from attending certain locations
- Deposit their passport
- Comply with any other condition the court considers necessary to ensure the safety of any victim or witness
- Comply with any other reasonable condition set by the court
What is a Surety?
Upon their release, an accused will have a “release order” which refers to the bail orders issued by the justice or judge. A surety is someone who has a relationship with the accused and is meant to supervise the accused in relation to their bail conditions, hold them accountable, and report the accused to the police if they breach an order. A surety must be willing to promise a sum of money or some other form of security (like property) to be paid to the court if the accused breaches their release order. To be a surety, a person must:
- Know the accused
- Be over the age of 18
- Be a Canadian Citizen or a Land Immigrant
- Not have any involvement in the case
- Own some property such as a home, car, financial investments, etc.
Types of Release: The Ladder Principle
The ladder principle is an idea that applies to all bail hearings and it is the principle that informs the requirement that an accused be released with the least restrictive conditions. The bottom of the ladder represents the least restrictive conditions, and the top of the ladder represents the most.
Release with only an undertaking (a promise) to appear in court is the lowest rung of the ladder, followed by an undertaking with conditions. Then there is a release with conditions on your own recognizance or surety recognizance. Recognizance refers to what will be owed to the court if any of the bail conditions are broken. House arrest is at the top of the ladder as the most restrictive form of release.
Failing to Comply with Bail
If an accused has been found to be in violation of any terms of their release conditions may face one or more of the following consequences:
- Arrest for violating the release order
- Cancellation of the release order and order that the accused be kept in custody for a further bail hearing
- Release on new, more restrictive conditions
- Enforcing the forfeiture of the recognizance
In Canada, while an accused doesn’t need to pay any money to be released on bail, violating a bail order can be very expensive if an accused was released with recognizance. An accused, or their surety may have their money or property seized if it was used to secure an accused’s release and that accused violates their release order.
Contact an Experienced Criminal Lawyer Today
Remaining in state custody while awaiting trial can have very disruptive consequences for a detainee and their family. It can take more than six months to three years from the time of the arrest to the trial date. A bail hearing is one of the first steps in criminal proceedings and the experience of a criminal defence lawyer early on can be invaluable in securing a release.
The team at Pyzer Criminal Lawyers is experienced in handling bail matters. For a free case evaluation call 416-658-1818 or visit https://www.torontodefencelawyers.com/.