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The Basics of Bail

We often hear about bail, but many clients (and their families) that I deal with are very unfamiliar with the process. The process in Canada is different from what we see on TV shows and in the news from the United States. While I've written about bail before (here and here), this post is meant to be an overview as to how bail works in Canada. 

Anyone who is charged with an offence and awaiting trial is considered to be 'on bail' whether or not they had a formal bail hearing. There are several types of releases, which will depend on the seriousness of the offence and background of the person being charged.

If someone is charged at the scene of the offence, they may simply be released without conditions and given either a Summons to appear in Court, or Promise to Appear which outlines their next court date.

If the individual is brought to the police station instead, they may be released with a Promise to Appear and an Undertaking to a Peace Officer. This undertaking is a promise to follow certain conditions, which could include not communicating with the complainant or co-accused, or not to attend their residence or place of work. The conditions could also prevent the individual from going to the location where the offence is alleged to have taken place or taking part is certain activities, such as drinking alcohol. The conditions are meant to be linked to the offence itself and from preventing future offences while the person is on bail.

If a person is not released directly from the station, the police will bring them to court for 'show cause.' In this case, the Crown then makes the decision as to whether they will agree to have the person released on bail. This situation is more common if the person is already out on bail or has a previous criminal record. Practically, this means that the person who is charged will brought to a courthouse within 24 hours of their arrest, and their lawyer will speak with the Crown and present a plan of release. This plan could include living at a certain address, or not attending certain locations. The person might also propose a surety, which is a person who will supervise them in the community. A surety signs the bail papers, called a recognizance of bail, as a promise to call the police if they are aware that the accused is not following their conditions. They might also provide either a cash deposit or a bond, which is a promise of an amount of money if they don't report a breach. If the person does not have anyone to act as a surety, they might also consider a bail supervision program from the John Howard Society, which allows them to check in at regular dates.

If the Crown does not agree to an individual's release, then they may wish to set a bail hearing. In a bail hearing (also called a 'show cause' hearing), the Crown presents an overview of their case, often just reading in the synopsis of what happened according to police, although sometimes an officer will testify. If the accused is proposing a surety, then they would testify to show the court that they believe the person would listen to them and follow their conditions. The Crown has the opportunity to cross-examine the surety, and then both sides argue as to why the person should or shouldn't be released.

There are three grounds of bail:

  • Primary: basically means that person will show up to court and won't flee the city or country. This ground tends to be an issue if a person isn't from the place where they were arrested and don't have roots in the community.
  • Secondary: this grounds deals with the safety of the community and the substantial likelihood of re-offence. In other words, can the court be satisfied that the public will be safe if they are released and that the person won't commit any further crimes.
  • Tertiary: whether detaining the person is necessary to maintain confidence in the administration of justice. This ground is generally used in more serious cases, and basically asks whether the average, informed person would be shocked if this person were to be released on bail.

If a person breaks or 'breaches' one of their conditions, they can be charged with a separate criminal offence under the Criminal Code. Their bail could be revoked, and they could have to wait in jail for their trial. The other consequence is that both they and their surety can be liable for whatever money they pledged. The Crown needs to go through a process called estreatment to get the money, which involves a hearing before a judge.

The right to reasonable bail is a part of our Constitution. In my view, bail can be a crucial first step of a case, which might allow a person to keep their job, stay with their family and seek treatment while they're awaiting the outcome of their case. The overall goal of the system, however, is to balance the ability of an accused person to do those things with the safety of the public and the proper functioning of the courts.

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