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Frequently Asked Questions

An individual accused of a crime is presumed to be innocent until they are proven guilty. Granting them bail means they can remain in public and out of jail, while their file makes its way through the Canadian justice system. Under the Criminal Code of Canada, a person has the right to a bail hearing within 24 hours of their arrest if a judge or justice of the peace is available, or as soon as possible once someone becomes available. Recent research suggest that police are more likely than not, to detain accused for a bail hearing.

What are Common Bail Conditions?

Bail conditions are tailored to the accused and their offence, so they will differ from case to case. The goal of imposing conditions is to address risks posed by the accused and to ensure they do not commit any new criminal offences while awaiting the trial. There are several types of conditions that may be imposed, but some of the significant ones are: attend court as directed, report to a peace officer, remain within a particular territorial jurisdiction, notify any change of address or employment, do not possess or use a device capable of accessing the internet, have a surety, be under house arrest and/or keep a curfew, and deposit a passport to prevent travel.

Specific examples of conditions related to crimes include: denying access to schools and playgrounds if an offence involves children, or restricting an individual’s ability to use the internet (or devices capable of accessing the internet) if an offence involves an online crime.

Does Every Person Arrested Require a Bail Hearing?

A bail hearing is typically within the discretion of law enforcement officers (police). When an accused is arrested, the police can choose to release them on an undertaking with or without conditions. For example, with impaired driving (mainly refusal) police will simply release the accused from the roadside since there is no reason to bring them to the station.

The police may also decline to release the accused and hold them for a bail hearing. The more serious the charge, the more likely it is that an individual will be held for bail. Many factors are looked at by the police, including the accused’s history, the nature of the crime and the likelihood that they will reoffend. Where the police have reason to believe the accused will not attend court or have some other concern about releasing the accused, they will hold them in custody pending a bail hearing

There are different types of bail releases, formally known as judicial interim releases. In Ontario, a Release Order (Form 11), allows accused who are held for bail to go back into the community while they await their case’s outcome. Further, an Appearance Notice (Form 9) is a form of release given to the offender, containing their information, the offence and the date, and the time and location of their first court appearance. You can also be released through an Undertaking (Form 10), which may or may not have conditions.

Stages of the Criminal Justice System

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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).

What’s a Crime in Canada?

When can an Accused be Denied Bail?

When Bill C-75 (An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts to make consequential amendments to other Acts) received Royal Assent, it set out three grounds upon which an accused may be denied bail. These are known as the primary, secondary and tertiary grounds. As such, the bail system is intended to ensure that: (a) persons charged with a criminal offence will attend court to answer to the charge; (b) the accused will not pose a risk to public safety prior to their trial; and (c) confidence in the criminal justice system is maintained with respect to whether or not the accused is detained in the time period before their trial. If there were concerns that any of these objectives would not be met, the police could then detain the accused and bring them before a justice.

Further we can look to R. v. Antic (2017), where the court looked at important aspects of the law on bail. The main takeaway here is the “ladder principle” requiring the court to “impose the least onerous form of release on an accused unless the Crown shows why that should not be the case” (para 4). The Crown must start at the bottom rung of the ladder (which is release without conditions) and if that form of release isn’t acceptable, they must explain why, before moving up to the next rung of the ladder. The default will always be that the accused is released without conditions. If this is not appropriate the Crown will again need to state why.

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Recent Cases

R. v. Ryerson, 2023 ONCA 233

In the Ontario Court of Justice case of R. v. Ryerson, the accused was brought before the court for an alleged breach of his prior release order. The Crown held the accused to the burden of demonstrating why he should be released (and under what conditions that release should take place). The accused had a lengthy criminal record, spanning over a decade.

Initially, the accused was held for bail and released, with a Mr. John Phillips as his surety. However, when the police tried to locate the accused, they learned that the address provided was a lie and that Mr. Phillips did not live there either. He was brought back in and again released, but unfortunately, ended up breaching his conditions once more. The court stated at para 23 “[r]evocation of bail occurs under s. 524. [the Criminal Code]. An accused may be arrested where there are reasonable grounds to believe that the accused has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking, or recognizance issued to them or has committed an indictable offence after being released.” This justified the reasoning behind the accused being brought back.

The court held and reasoned that there was not enough proof to persuade them into understanding that there existed conditions on which the accused could be released, and it would reduce the risk of offence below substantial. Detention was ordered.

R. v. Dubois, 2022 ONSC 6155

In the Ontario Superior Court of Justice case of R. v. Dubois, the accused was charged with second degree murder of his common law partner. Thereafter, he was denied bail. The accused brought forth an application for review, but it was dismissed due to the fact that the proposed plan missed elements that would relate to or indicate the accused’s condition of schizophrenia.

It was understood that the accused’s mental illness previously had contributed to violent outbursts and there was risk it might do so in the future as well. The court reasoned that the bail plan did not adequately address the requirements of the secondary grounds which focus on the protection of the public. Accordingly, in order to maintain the tertiary grounds, the accused needs to be detained where the detention is necessary to maintain confidence in the administration of justice. The court concluded with stating that “it is essential that the courts maintain the confidence of the community in the administration of justice. Having considered these various factors, I have concluded that Mr. Dubois ought to be detained on both the secondary and tertiary grounds.” As such, the application to vacate the detention order was dismissed.

R. v. H.B., 2022 ONSC 4858

In the Ontario Superior Court of Justice case of R. v. H.B., the accused was charged with several firearm offences, including discharging a firearm and possession of a firearm. The accused had also committed assault. Following a bail hearing, the accused was detained on secondary and tertiary grounds. “The applicant proposes that he be subject to house arrest, possibly with exceptions if in the immediate company of a surety” (para 13). This was of course something the court did not see eye to eye with.

Here, the court looked at the gravity of the offences, which was quite significant, and stated at para 22 “[t]he offence of discharging a firearm carries a mandatory minimum penalty of imprisonment for four years. Even if the applicant is not convicted of this offence, the firearm possession offences are likely to attract a penitentiary sentence if he is convicted of those.” Therefore, the decision regarding bail formed a very strict proposed plan. The sureties were found to be trustworthy and have impeccable backgrounds. A strong focus the court reiterated was “whether releasing the accused would cause that reasonable member of the public to lose confidence in the administration of justice.” If this could be avoided, the accused could be put in the same situation. In conclusion the court appointed three sureties and set eight relatively strict conditions for the accused to follow.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.