The ability to obtain bail is a crucial aspect of the criminal process. The right of a person charged with an offence not to be denied reasonable bail without just cause is protected in s.11(e) of the Canadian Charter of Rights and Freedoms.

Reasonable bail has been interpreted to include the terms of release, including the amount set for bail and restrictions on the accused’s liberty. The outcome of a bail hearing can have a substantial impact on the outcome of the charges. Accordingly, we treat this pivotal part of the criminal process the same as trial.

The Criminal Law Group has extensive experience in securing judicial interim release for complex Financial, Sexual and Violent Crimes. In it’s R. v. E.G. [2014], the Criminal Law Group secured judicial interim release for one of Peel Regions largest Child Pornography busts. Nearly 500,00 images and over 400 videos were seized in a police raid. Further in its R. v. T.M. [2014], the Criminal Law Group secured bail for Accessory to Murder in Downtown Toronto two days before Christmas. In August, 2015, the Firm further secured Judicial Interim Release for a Toronto TTC Driver Charged with Nine (9) Sex Crimes. The Firm secured Bail for Toronto’s Crane Girl without the use of a surety and also regularly comments to the Media regarding judicial interim release, including AM900 CHML.

Description: Jordan Donich provides commentary to AM900 CHML regarding Judicial Interim Release on June 5, 2017.

Description: Jordan Donich provides expert commentary to Global News regarding Extradition on June 16, 2017.

Frequently Asked Questions

What is a Bail Hearing?
Does Everyone Charged with a Criminal Offence Require a Bail Hearing?
Who has the Onus of Proof at a Bail Hearing?
What is a s.524 Reverse-Onus Bail Hearing?
Are some Offences Always a s.524 Reverse-Onus?
How does the Court Determine who to Release on Bail?
On What Grounds can a Court Deny Bail?
What is a Surety?
What are some Potential Conditions of Release?
What happens if a person is not Granted Bail?
What is Pretrial Custody?
What is a Bail Variation?
What is a Bail Review?

What is a Bail Hearing?

A bail hearing is a court appearance where a decision will be made about whether or not a charged person will be released from custody prior to trial. A bail hearing happens after arrest when an individual has been taken into police custody. Bail hearings can be held either on consent or they can be contested.

A bail hearing on consent is when the Crown and defence agree on terms for your release and the judge approves this. A charged person is then released from custody pending trial on a recognizance of bail that often outlines a number of conditions that an individual must obey as terms of their release. In some of the most serious cases it is possible that the Crown and defence will consent to detention prior to trial.

A contested bail hearing happens when the Crown and defence disagree on release or proposed terms of release. A bail hearing will then be held where the Crown will announce its position and the grounds upon which it requests detention. The Crown will then either call witnesses or read in the police background about the accused. The defence will be given an opportunity to question any witnesses and to call witnesses to challenge or contradict the Crown’s position. If a contested hearing is held the result will be either:

    1. The judge orders your release;
    2. The judge orders that you continue to be detained.

Does Everyone Charged with a Criminal Offence Require a Bail Hearing?

Everyone who is charged and taken into custody requires a bail hearing. However, often individuals may be arrested by the police and charged without being taken into custody. Instead, they may be issued an appearance notice or a promise to appear that requires them to appear in court on a specific date. If that is the case, then you will not be in custody and will not have a bail hearing.

However, if you are taken into police custody upon arrest then you are required to have a bail hearing regardless of what the charge is. All charged persons must be brought before a Justice for a bail hearing within 24 hours of arrest, or as soon as possible if a Justice is not available.

Who has the Onus of Proof at a Bail Hearing?

Generally, the Crown has the onus of demonstrating to the Justice that an accused should be detained in custody prior to trial. The Charter of Rights and Freedoms guarantees that any person charged with an offence has the right not to be denied reasonable bail without just cause. Therefore, the onus is on the Crown to demonstrate “just cause” if the Crown believes an individual should be detained.

However, in certain situations the onus will be reversed and the accused will have to demonstrate why he or she should be released from custody prior to trial. These exceptions will be discussed in further detail below.

What is a s.524 Reverse-Onus Bail Hearing?

Section 524 of the Criminal Code sets out that where an accused has been arrested while on interim release for contravening that summons than the judge should cancel the interim release order and detain the accused in custody, unless the accused shows cause why his detention in custody is not justified under Section 515(10) of the Criminal Code.

The “reverse onus” situation described in Section 524 puts the onus on the accused to demonstrate why he should not be detained. This idea is contrary to the majority of bail hearings where the onus is on the Crown to show cause for detention.

Reverse-Onus Bail Hearings are not limited to situations where an accused is re-arrested while on interim release. There are a number of other situations where this standard applies, which will be discussed below.

Are some Offences Always a s.524 Reverse-Onus?

Yes, some offences will always attract a reverse onus standard, leaving the obligation on the defence to demonstrate why an accused person should be released prior to trial. Some offences, which always attract a reverse onus standard, include:

  • Section 522 sets out that Section 469 offences, including treason, murder, piracy, accessory to murder or treason and any attempts to commit these listed offences, attract a reverse onus bail hearing.
  • Any offence listed in Section 515(6) of the Criminal Code, including:
    • Offences committed after being released in respect of another indictable offence;
    • Offences committed for the benefit of a criminal organization;
    • Terrorism offences;
    • Certain weapons and firearms offences;
    • Trafficking of narcotics.
  • Any offence committed while on interim release.
  • Any indictable offence committed by an accused not ordinarily a resident of Canada.

How does the Court Determine who to Release on Bail?

There is a presumption in favour of granting bail, unless the Crown can show just cause for why an individual should be detained. However, as discussed above, in certain cases that presumption is reversed. Therefore, in most cases the court must release you on reasonable and fair terms, unless there is just cause to detain you.

There are a number of factors that judges will consider when deciding whether or not to grant bail. The most important consideration is whether the Crown is opposed to bail and has demonstrated just cause to detain you. In most cases, bail decisions are about coming to agreeable terms for the accused to be released on. The three most important considerations for a court are:

  • Whether there is a risk you would miss a future court date;
  • Whether there is a risk you would interfere with witnesses or evidence;
  • Whether there is a risk you will commit another offence while on bail

The judge may also consider any other factors that are relevant in the circumstances. Common considerations include:

  • Seriousness of the charge;
  • Strength of the Crown’s case;
  • Past criminal record;
  • Whether you have a history of committing offences while on bail;
  • When your next court appearance is;
  • Employment;
  • Family circumstances;
  • Available housing and oversight.

On What Grounds can a Court Deny Bail?

Section 515 sets out that detaining an accused person in custody is only permitted on one or more of the following grounds:

  1. Where detention is necessary to ensure an accused person will appear in court;
  2. Where detention is necessary in the interests of public safety
    1. The apparent strength of the Crown’s case;
    2. The gravity of the offence;
    3. Circumstances surrounding commission of the offence, including whether a firearm was used;
    4. The fact that if convicted the accused would be liable for a lengthy period of imprisonment or a minimum sentence.  Where detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including:

Therefore, for the court to deny bail they must be satisfied that detention is necessary based on one or more of the above factors only.

What is a Surety?

A surety is a person who comes to court and makes a promise to supervise an accused person while they are out on bail. A surety is responsible for making sure an accused person comes to court when they are required to and that they follow the conditions of their release. Often times a surety will have to guarantee a significant amount of money to secure the release of an accused person. In some cases, a cash deposit will be required. If an accused person then violates their bail while under the supervision of the surety, it is possible the court will go after the surety for the money they have guaranteed.

A common condition of release is often that an accused person will obey the rules of his or her surety. It is also common for the court to require you to live with your surety.

What are some Potential Conditions of Release?

When a court decides to grant bail to an accused person, they attach conditions to the recognizance of bail that the accused person must follow. Failure to comply with bail conditions is itself a criminal offence.

Bail conditions vary greatly depending on the severity of the crime charged and the risks posed that specific offender. Bail conditions are often offence-specific. For example, if an individual is arrested for an offence involving alcohol, the bail conditions will often preclude an individual from consuming alcohol; or if the offence involves a particular complainant, the bail conditions will almost always include a condition prohibiting an accused person to contact the complainant. Some examples of common bail conditions include:

  1. Report to the police weekly sign the required Police Attendance Record.
  2. Reside at a specific address with your surety. Do not change your address without prior court ordered bail variation.
  3. Notify the police of any changes in your address within 24 hours of such change.
  4. Abstain from communication with the complainant in any way, either directly or indirectly. You are to remain ___ meters away from their person, place of residence, schooling and/or employment.
  5. Abstain from the use of and/or possession of alcoholic beverages.
  6. Abstain from the use of and/or possession of illicit drugs.
  7. Curfew: do not be away from place of residence between certain hours.
  8. Keep the peace and be of good behavior.
  9. To abstain from communication with any person with a criminal record.
  10. Restrictions on entering certain premises or geographic areas.
  11. Obey the rules and regulations of your surety.
  12. Abstain from acquiring, possessing or carrying any weapon.
  13. Deposit passport with the police.

What happens if a person is not Granted Bail?

If a person is not granted bail then they will be detained in custody until they stand trial. However, an accused is allowed to seek a review of the decision.

What is Pretrial Custody?

Pretrial custody is when an accused person is detained in prison prior to trial. Pretrial custody occurs before an accused person has actually been convicted of a criminal offence. In recent years, the number of people detained in pretrial custody in Canada has expanded significantly.

What is a Bail Variation?

A bail variation is when the conditions of your recognizance of bail are changed. This can only be done in two ways:

  1. With the consent of the Crown;
  2. If the accused person applies for review and the court orders the conditions be changed.

For example, if you have been subject to particularly stringent bail conditions for a significant period of time prior to trial, it is possible that you could apply to have those bail conditions modified if you have demonstrated over that period of time that you are willing and able to comply with the conditions of your release by committing no breaches.

What is a Bail Review?

A bail review takes place after a bail decision has been made by the court. Normally a bail review occurs when an accused person has been denied bail by the courts and wants to appeal this decision. Once you are denied bail, you may apply to a higher court for a review of the detention order. It can take awhile (i.e. longer than a week) for a bail review to happen because normally an accused person has to obtain a copy of the transcript from the initial bail hearing before proceeding with the review.

It is also possible for the Crown to initiate a bail review by applying for review of an order releasing the accused.

Bail reviews can also take place when the Crown refuses to consent to a variation of conditions and the accused applies to the court to vary the conditions.

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