When an individual is arrested and charged with a criminal offence, they may be released by the police, or they may be held in custody and required to appear before a justice in court. Typically, those arrested for more serious offences will be held in custody pending a bail hearing.

Section 515(1) of the Criminal Code provides that where an accused person is arrested for an offence other than a section 469 offence, and brought before a justice, the justice must order release without conditions unless the Crown can show cause as to why the individual should be released with conditions. Subsection 515(2) indicates that where the justice does not agree to release without conditions, they must release with conditions unless the Crown can show cause why the accused should be detained.

A bail hearing, formally called a show cause hearing, is a court appearance where a justice will determine whether an accused will be held in custody pending the resolution of their case, or whether they can be released into the community. If an individual is granted bail (formally known as judicial interim release), they will be released from custody and provided with a first appearance court date. An individual who is granted bail will be required to abide by certain conditions as part of their release.

At the bail hearing, the Crown will indicate whether they consent to the accused’s release, or whether they are seeking detention. If they are seeking detention, they must make submissions to the court regarding why the offender should be held in custody. Either duty counsel or the accused’s lawyer will make submissions regarding why release is appropriate. The judge will then determine whether or not the accused can be released from custody pending trial.

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