When someone is charged with a criminal offence in Canada, two things can happen: they are either released by police pending the outcome of the case, or held for a bail hearing.
If you have been held by police after an arrest, you have the right to something called a “show cause” hearing, which is a bail hearing. Usually the accused is brought to a bail hearing after having spent a night in jail. However, the bail hearing has to be conducted as soon as possible, usually that is within 24 hours but if it’s not possible to arrange the hearing in such a short time, then as soon as reasonably possible.
Do I have to be granted bail?
According to the Charter of Rights and Freedoms in Canada, you cannot be denied reasonable bail without just cause. However, just because you have the right to “reasonable” bail, that doesn’t mean that you will necessarily receive bail, especially if you have committed a very serious crime or are a repeat offender.
Bail is set out in s. 515 of the Criminal Code of Canada in the “Judicial Interim Release” section.
According to the rules of the Criminal Code, it will be determined at the bail hearing whether you should be let go or whether you should be held until your trial.
There are three possible outcomes from a bail hearing:
- You are let go without conditions, if the Crown cannot prove that detention is justified;
- You are let go, but with conditions that include:
- giving an undertaking with such conditions as the justice directs;
- entering into a recognizance before the justice
- You are held in police custody until the trial.
How does the judge/justice of the peace determine whether someone should be granted bail?
In determining whether a person gets to make bail, the judge has to consider all the following:
- Whether if granted bail the person is likely to actually show up in court when summoned;
- Public safety considerations: will this person represent a danger to the public if he or she is released into the public? The court looks at all circumstances of public safety considerations, including but not limited to:
- How the victims will be impacted if the person is granted bail;
- Whether the person is likely to commit another offense if released on bail.
- To uphold the administration of justice.
If the judge is not confident in any one (or more than one) of these grounds he or she will likely deny bail.
I’ve been released on bail under recognizance
This means that you have been released on a promise that you made in court, to abide by the conditions that the release possible. Those conditions always involve attending court as required, staying out of trouble and any other conditions such as staying away from victims, locations, non-communications with people identified by the court and more.
If you break the recognizance, it’s likely the next time you appear in front of the judge you will be denied bail and further charges may result.
What is a surety?
A surety is a person who has to vouch for that you are not going to break the terms of you bail (recognizance). The person enters into a bond for an amount of money and if you fail to observe the bail conditions imposed on you, the person will have to pay.
If you have been arrested and are facing a bail hearing you should contact a lawyer as soon as possible.
Criminal Code of Canada Judicial Interim Release