Who Determines if an Accused will get Bail?
The court (a judge) is authority responsible for determining whether or not to grant bail. Evidence brought forth by the prosecution will be considered, in order to ensure public safety, as well as the safety of victims and witnesses. An important factor considered by police and the courts is whether the accused person is Indigenous or belongs to a group of people who are overrepresented in the Canadian criminal justice system and would likely face systemic discrimination in obtaining bail. In Canada, there is always the presumption that the accused will be released on the least onerous grounds possible, which is rooted in the presumption of innocence.
If an accused is held for bail, they are brought before the court the Crown will take over the file. The Crown determines after reviewing, whether they want to consent to the accused’s release or if release should be opposed. If release is consented to, then the Crown will need to outline what they believe is an appropriate release plan. After the accused is brought before the court, the judge will determine whether they should be released and if so, on what conditions.
What Happens if you Breach your Bail Conditions?
If an individual breaches a bail condition, their bail may be revoked, and they may potentially be detained and brought to court to establish whether they should or should not remain in custody until trial. If an individual shows they cannot follow their bail conditions, the court may rescind the bail and hold the accused in custody pending the outcome of their case. It should be kept in mind that having charges or convictions for breaching bail conditions could mean that if the accused is ever arrested again in the future, there is a higher likelihood they’ll be denied bail because of their history of breaching.
In a Justice Canada study completed in 2013, it was found that from samples collected across five courts in Canada, fewer than one fifth (18%) of accused that were released on bail, violated their terms of release by the court. In R. v. Zora (2020), the Supreme Court of Canada ruled that in order to be found guilty of breaching bail conditions, people have to know they are breaching them (or know they are seriously risking a breach).