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What is bail?
- After you have been placed under arrest, bail or judicial interim release determines whether or not you will remain in custody or will be free in the community until you await the conclusion of your criminal charges.
- If you are granted bail, you will be released from custody but is it not uncommon to be placed under conditions that are set by the Court. If you are denied bail, you will remain in custody until the conclusion of your criminal matters.
- Given the significant delays to get to trial, bail is a critical step in the criminal justice process. Also having the least onerous conditions of bail is important so that your freedom enables you to continue to work or go to school and support your family. If you are denied bail, this may affect your ability to access resources to make full answer and defence to your charges.
When can I speak to bail?
- Upon being charged and arrested, the police have the authority to release you immediately or from the police station. This will often occur when you do not have a significant criminal record and/or where the circumstances of the charges are relatively minor. However, should the police decide you should be kept in custody or seek onerous conditions of your release, the police will bring you before the Justice of the Peace. Generally, this must be done within 24 hours of your arrest.
- This is the first opportunity for the accused person to speak to bail. The Crown Prosecutor may be opposed to your release but it is ultimately the Court that determines whether or not you will be released and with what conditions. The Crown Prosecutor will present reasons why you should be denied release while your lawyer will make representation as to why you are a good candidate for release. The Justice of the Peace bail hearings run seven days a week (even on weekends).
Why you may not want to speak to bail at this first instance
It is important for you to put the strongest possible release plan for the Court’s consideration. For some individuals, it may be advantageous to wait to speak to bail so that you can:
- Retain and instruct a lawyer to speak to your bail for you.
- Get documents that you want presented at your bail hearing (job confirmation, confirmation of education programming, confirmation of addiction treatment programming, etc).
- Secure a surety.
- Review disclosure.
Most of the time, you adjourn your bail hearing so that you can put together a cogent release plan and get the necessary resources in place before speaking to bail. It is important to note that in general, you get one shot at bail. It is to your benefit to place all the important information before the Court so that you have the best chance at bail. Contrary to popular belief, you cannot do bail over and over again until you get bail. A King’s Bench bail review is different than doing bail over again.
The Crown can also apply for the adjournment of your bail for a maximum of 3 days. This is usually done so that they can bring forward other outstanding matters to revoke your previous release.
If your initial Justice of the Peace bail is adjourned, your bail will be addressed in Provincial Court on a date that is convenient to you and when you have had an opportunity to get all the necessary information to give to the Court. This way you can be fully prepared to address the bail consideration and propose an adequate release plan to the Court.
What factors are considered at a bail hearing?
In normal cases, the Crown has the onus to justify your release. This means that the Crown has to present evidence and must satisfy the Court that your detention is justified. If they fail to do so, then you must be released. Similarly, the Crown bears the onus to justify any condition that is to be part of your release order.
The Courts are concerned with three grounds which can justify your detention. These three grounds are contained at s. 515(10) of the Criminal Code and include:
- Primary Ground: the detention of the accused is necessary to ensure the accused’s attendance at court. (Will the accused show up to court as required?)
- Secondary Ground: the detention of the accused is necessary for the protection and safety of the public from the risk of further crime and to protect witnesses from interference or intimidation, (Is there a risk that the accused will commit more offences or interfere with/harm any witnesses?)
- Tertiary Ground: the continued detention of the accused is necessary to maintain the confidence of the public in the administration of justice (what is the nature of the offence, the strength of the Crown’s case?)
Reverse Onus Bail
While the Crown bears the burden to justify your detention, in certain circumstances, the burden is reserved and you will have to show why your release is justified instead of the Crown showing why your detention is justified. This is known as a Reverse Onus. Situations which result in a reverse onus include: ss. 515(6) Criminal Code
- The offence is alleged to have been committed while breaching a previous release order.
- The offence committed is an offence related to a criminal organization or is alleged to have been committed for the benefit of, at the direction of or in association with, a criminal organization.
- The offence is alleged to be a terrorism offence.
- The accused is charged with breaching a previous conditional sentence order.
- The accused is charged offences under the Security of Information Act.
- The accused is charged with weapons trafficking offences.
- The accused is charged with discharging a firearm or offences of attempt murder, sexual assault with a weapon or causing bodily harm, aggravated sexual assault, kidnapping or hostage taking, robbery or extortion where it is alleged a firearm was used in the commission of the offence;
- The offence is alleged to involve or whose subject matter is alleged to be a firearm or prohibited or restricted weapon or device while the accused was under a prohibition order.
- The accused is not ordinarily residence in Canada.
- The offence involved an allegation of violence used, threatened or attempted against their intimate partner and the accused has been previously convicted of an offence in the commission of which violence was used, threatened, or attempted against any intimate partner of theirs.
- The offence committed is an offence punishable for life under section 5 to 7 of the Controlled Drugs and Substances Act (drug trafficking, import/export, production of drugs).
What are the different forms of release?
1. Promise to Appear with or without Undertaking (Release by Police)
- A Promise to Appear is used by police to release individuals with relatively minor or no criminal records and for comparatively minor charges. The Promise to Appear will compel you to appear in court on a specified date, time and courtroom. In addition, you will also be directed to attend to the police station to complete fingerprinting.
- The police may also bind you with an Undertaking with certain conditions. The Undertaking will contain a condition that you must appear in court at a specific date, time and location. The Undertaking may also contain one or more of the optional conditions outlined in s. 501(3) of the Criminal Code.
2. Release Order – s. 515 of the Criminal Code (Release by Court)
When bail is spoken to, the Court may release you in many different forms. Some forms of release will come with conditions or require a cash deposit or a surety. Listed below are the various bail release options from the most lenient to the most stringent forms of release. The conditions imposed for your bail will be dependent on numerous factors including the nature of the offence and previous criminal history. In most cases, the Court is to release you on the least onerous form and conditions of release. Unless you are in a reverse onus situation, the Crown Prosecutor has the obligation to prove a more onerous form of release and conditions are required.
- Release order without conditions – s. 515(1) of the Criminal Code
- Release order without any financial obligations – s. 515(2)(a) of the Criminal Code
- Release order with promise to pay (no cash bail) – s. 515(2)(b) of the Criminal Code
- Release order with a surety with or without accused’s promise to pay – s. 515(2)(c) of the Criminal Code
- Release order cash deposit (cash bail) – s. 515(2)(d) of the Criminal Code
- Release order with a surety with or without accused’s cash deposit if the accused is not ordinarily resident in the province in which they are in custody or does not ordinarily reside with in 200 km of the place in which they are in custody – s. 515(2)(e) of the Criminal Code
How much bail money is required?
- Money for bail is only required when you are released on a cash deposit release order. When you are granted release with a cash deposit, this means that you must deposit the money prior to your release. Until the money is paid in full, you will not be released.
- If you are released on a promise to pay/no cash bail, this means that you are not required to pay the bail money before you are released. You will be released without first paying the money and only if you breach any of your conditions, will you be required to pay the bail money.
- How much cash the Court will require depends on numerous factors including your previous criminal record, previous release orders, the nature of the offence, your personal circumstances, etc. However the cash amount should not be so high that it would be impossible for you to meet. Conversely, the cash amount must be high enough to compel you to appear in court and to ensure that you will follow your conditions. The amount of cash bail is one of the factors in your release plan. Usually the larger amount of cash that is available the stronger your release plan will be.
What do sureties need to know?
What is a surety?
- A surety is a person who is prepared to promise to the Court to supervise an accused person while they are on bail. A surety also pledges or promises an amount of money by signing into the release order for the Accused. By doing this, the surety risks losing some or all of the money they have promised if the Accused fails to comply with their release conditions or show up to court.
- Being a surety is a serious commitment and before you accept the responsibility of being a surety, it is recommended that you get independent legal advice to fully understand what commitments are required by a surety.
Who can be a surety?
In order to be considered as a surety you need to:
- Be an adult Canadian citizen or permanent resident.
- Generally do not have a criminal record or have outstanding charges. If you do have a minor criminal record or one that is fairly old and/or minor, you might still be allowed to be a surety.
- Be able to show that you have enough assets to cover the amount of bail or pledge.
- Be in a position to monitor and supervise the accused while they are on release.
- Be in a position to show that the accused will listen to you or that you will be able to control the accused.
- Be able to testify before the Court, should the Court require you to do so, to answer any questions about your background and character of finances. You may be cross examined about your qualification to satisfy the Court that you would be a suitable surety.
In general, the Court will be looking for someone who is able to properly monitor the accused in the community and able to properly fulfil their obligations as a surety.
What are the responsibilities of a surety?
- Making sure the accused person comes to court on time and on the right dates.
- Making sure that the accused person obeys each condition of their release order.
As a surety, you must call the police or other authorities should you find the accused breaching any of their release conditions.
- Although there is no specified method of enforcement, it is your pledge of money that is at risk. If the accused has a court date, it is your responsibility to ensure that the accused appears for this court date. There is no prescribed way for you to enforce this condition. However, if the accused person does not show up, you will be held responsible for their non-appearance and you will lose the money that you have pledged. The accused will also be taken into custody and lose their bail.
What happens if I breach my bail conditions?
Where you are alleged to have breached your bail conditions, a warrant will be issued for your arrest. You can be arrested and charged with a new criminal offence of failing to comply with your bail conditions and if you are not released by police, you will be brought before the Court for bail. This will then trigger the release process again for this new criminal charge.
You may be released on a promise to appear, or you be required to have a bail hearing on the new fail to comply charge. The bail for the original matterswill stay in place so if you are released on the new fail to comply charge, you must be aware that the police or Crown Prosecutor may also choose to proceed NOT to lay new charges but have a hearing to determine whether your original bail should be changed or terminated. If terminated, then you will be placed back into custody.
What is bail revocation?
Bail revocation is when the Court cancels the bail that was previously granted. Bail can be revoked if the Court finds that you have committed a new indictable offence while on bail or have breached, or are about to breach a condition of your bail order. The Crown usually gives notice of their intention to revoke your previous bail.
When your bail is revoked, you are then entitled to a new bail hearing but you will bear the onus of showing cause for why your detention is not necessary (Reverse Onus).
- Bail can also be revoked if a surety applies to be released from their obligation.
- The significance of revocation is realized when you are granted bail on a serious matter. However, while on release, if you are alleged to have committed another minor offence, bail could be revoked. Usually you would be able to get bail on these minor offences, but if the Crown elects to revoke your previous release, you are now faced with not only getting bail on your new minor matter but you will be before the Court in a reverse onus situation to justify bail on the serious matter as well. You will need to justify your release on the serious matter where you were already granted release but during your release you are alleged to have committed another offence.
Bail variation or changing bail conditions
The conditions of bail can be changed at any time with the consent of the Crown Prosecutor. However, where the Crown Prosecutor does not consent to any changes of your condition, you will need to pursue this change with a Bail Review or King’s Bench Bail Review.
It is important to gather any documents that would support an application for a change of conditions (e.g. if you are asking for a curfew to be amended for employment purposes, a letter from your employer will be valuable).