How to Bail Someone Out of Jail in Canada?

If someone you know has been arrested and they are not released by police, then they will appear before a judge or a justice of the peace for a bail hearing. However, bailing someone out after an arrest isn’t as easy as just paying a sum of money at the police station. Your best option to assist someone close to you who is facing a bail hearing is to act as their surety.

A surety makes a promise to the court that they will be responsible for supervising an accused. If you want to bail someone out after an arrest, the best thing you can do is contact an experienced bail lawyer. They will be able to assist you in preparing a release plan and understand your role as a surety.

Introduction to Bail in Canada

In Canada, if you are charged with an offence, you have a constitutional right not to be denied reasonable bail without just cause, as outlined in section 11(e) of the Canadian Charter of Rights and Freedoms. This right emphasises the presumption of innocence until proven guilty. Judicial interim release, or bail, allows an accused to live in the community while their case progresses. Bail conditions, governed by section 515 of the Criminal Code of Canada, are set by a judge or justice of the peace to ensure the accused abides by specific terms of release.

What Happens When Someone Is Arrested?

When an individual is arrested in Canada, the police have the option to release them at the scene, release them from the station, or not release them at all. If the police choose the third option, then a bail hearing, also known as a “show cause hearing,” will occur as soon as possible. Most people who are arrested will be released pending the outcome of their case. The police are able to release an accused on a “promise to appear” that may or may not have conditions. These conditions can include such things as not contacting a specific person or staying away from a particular place. The decision to not release someone is influenced by many factors, including the severity of the charges and the likelihood of an accused appearing at future court appearances.

A person accused of committing a criminal offence has the right to retain and instruct legal counsel without delay. They should ask to speak with a criminal defence lawyer as soon as possible. A qualified criminal defence lawyer will be able to prepare an accused and proposed sureties for a bail hearing.

What Happens at a Bail Hearing?

If an individual is not released by police, they will be held for a bail hearing. The hearing is like a mini-trial where the court will determine if an accused should be released pending the outcome of their case. Everyone has a right not to be denied bail without just cause. This is a right that can be found in the Canadian Charter of Rights and Freedoms.

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.

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;
• Tertiary grounds: Detention may be justified in order to maintain confidence in the administration of justice.

What is a Surety?

If an accused is granted bail, they will be given a “release order.” The release order will contain the conditions by which an accused will have to abide while they are out on bail. A judge or justice may choose to release an accused on recognizance with a surety. A surety is someone who knows the accused and agrees to supervise them while they are out on bail. The surety is required to report an accused to the police if an accused violates any of their bail conditions.

In addition, a surety will pledge an amount of money that they will be required to pay if an accused breaches any of their bail conditions. A surety has to be approved by the court by testifying to their competency and financial stability. 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 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.

Questions About Bailing Someone Out of Jail

How Much is Bail in Canada? 

In Canada, bail does not cost anything. An individual isn’t required to pay to secure their bail. However, they or their surety may be asked to pledge a certain amount that will be paid if the accused breaches their bail conditions.

What Are the Conditions of Bail in Canada? 

The conditions that a judge or justice will impose depend on the circumstances of each case. However, the ladder principle requires that an accused be released with the least restrictive conditions. Each added condition must be justified for the specific circumstances.

How Long Does the Bail Process Take? 

Generally, the bail process occurs quickly following an arrest. After an arrest, an individual should come before a judge or justice within 24 hours or as soon as one is available.

What to Do if You Can’t Afford Bail 

An accused is not required to pay any money to be released on bail. They, or a surety, may be asked to commit to paying an amount of money if the accused breaches their bail conditions.

Failing to Comply with Bail

Failing to comply with bail conditions can lead to serious consequences, including additional charges and the possibility of being remanded into custody until trial. If an accused has been found to be in violation of any terms of their release conditions, they 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 is 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

In Canada, the bail process can be quick and confusing, and not being released on bail can have devastating impacts on the life of an accused. When faced with the situation of needing to bail someone out of jail, understanding how bail works in Canada is essential.

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.

Our bail hearing lawyers in Toronto are experienced in handling bail matters. For a free case evaluation, call 416-658-1818 or visit https://www.torontodefencelawyers.com/.