How does BAIL work in Canada?

Posted by on Jul 21, 2015 in Criminal Procedure, Legal Information

Most people associate “bail” with a large cash deposit. In the American system, people need to find or borrow money in order to “make bail”, so this tends to be what we see in pop culture (movies, TV and books). But it’s not really how it works in Canadian criminal courts. How does bail work in Canada?

There are a handful of criminal offences that are considered the most serious, listed in s. 469 of the Criminal Code, for which bail is treated differently: treason, “alarming Her Majesty”, intimidating Parliament or a legislature, inciting to mutiny, seditious offences, “piracy by law of nations” (as in, being a pirate …), piratical acts, and murder. Murder is the only one of these charges that we see very often anymore.

The information in this blog post does not apply to the s. 469 offences.

What is bail?

Bail is the temporary release of an accused person while your charges work their way through court toward resolution. In Canada, what we call “bail” is technically called judicial interim release. If the police believe it is necessary to detain you rather than release you after arrest, they have to bring you to court, to appear before a justice (judge or justice of the peace), within 24 hours or “as soon as possible” if a justice is not available (Criminal Code, ss. 497, 498 & 503(1)).

Release on consent or show cause?

When you’re brought into bail court, your lawyer will talk to the Crown prosecutors, find out what they are alleging, and see whether they can agree that you should be released on bail, and on what conditions. If you agree to the terms that the Crown is suggesting, you may be released on consent before the Justice. You will still need to appear in court (possibly by video rather than in person), and the Justice will read out your conditions, confirm that everybody is agreed, set your next court date, and you and any sureties will need to stick around to sign the papers. If the Crown believes you should not be released, or if you can’t come to an agreement about the conditions, there will have to be a show cause hearing – more commonly known as a bail hearing.

The bail hearing: showing cause & reverse onus

At a bail hearing, the default position is supposed to be that you will be released, and the Crown must show cause (prove) that you should stay in jail until your matter resolves. There is however, a long list of situations in which the responsibility is flipped, and the defence must provide evidence to prove that release is appropriate. This is called “reverse onus” and the reverse onus situations include: certain offences alleged to have been committed while already on bail, or alleged offences that would be breaches of existing conditions; where the accused is “not ordinarily resident in Canada”; certain offences alleged to be committed for a criminal organization, or alleged terrorism offences; offences involving firearms or prohibited weapons; and for some of the drug offences that are considered more serious. (Criminal Code, s. 515(6))

Forms of release

It might be helpful to think of the different bail options (forms of release) as a staircase, with the least restrictive form of release at the bottom and detention at the top. Unless it’s reverse onus, the Crown has to argue its way up the stairs, to justify more restrictions and more conditions.

In reverse onus situations, the defence has to argue its way down the stairs, to prove that a less restrictive form of release will be sufficient to meet the needs of the justice system (in particular, making sure you return to court and protecting the public, including by preventing further offences).

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Undertaking and recognizance are both promises to appear in court as directed and to follow any conditions. A recognizance comes with a possible financial penalty to the accused if the recognizance is breached, and/or to the sureties if the sureties know conditions are being breached but fail to report to the police. This financial penalty may be referred to as a “bond” and should be proportional to the means of the person making the commitment. It’s not a deposit and isn’t paid up front, but could be collected after breach. Failure to comply with an undertaking and breach of a recognizance are also stand-alone criminal offences, so breaching bail conditions usually means more charges. Conditions and their implications, as well as the responsibilities of sureties should be discussed in detail with your lawyer.

Whether you’re released on consent or after a bail hearing, your release will be in one of the forms shown in the graphic. In practice, if the Crown does not consent to release and there is a bail hearing, the Crown will stick to the top of the stairs and the defence will propose a bail plan that stands somewhere partway up the stairs, with restrictions and conditions that are realistic and that the justice might consider reasonable. The more reason the Court has to believe that you might flee, commit another offence, or be a risk to public safety, the more restrictive your bail plan must be to be acceptable. This is what your lawyer is considering when he or she suggests that you will need a better plan.

Grounds for detention

The grounds for detention are quite simple. Detention is justified only on one of the following grounds (Criminal Code, s. 515(10)):

  • to ensure that the accused will attend in court as required, and not “skip bail” (called the “primary ground”);
  • to protect the safety of the public, including victims or any person under 18, because it’s likely the accused will commit another offence if released (called the “secondary ground”); or
  • “if the detention is necessary to maintain confidence in the administration of justice” (called the “tertiary ground”).

The primary and secondary grounds are the most common, while the tertiary ground should arguably be reserved for very rare situations. If the court does not believe the accused will flee, and does not believe the accused is likely to reoffend, what kind of public outrage should pressure the courts to detain a person anyway? This should be a serious and ethically challenging question, although the Crown seems to argue it all too frequently, treating the tertiary ground as a sort of “miscellaneous” justification category, that can be tacked onto the primary and secondary grounds in case those arguments fail.

A local experience

Bail court is stressful. At the Ottawa courthouse, it can involve waiting in cells all morning or all day, while your lawyer negotiates with the Crown, attempts to contact your sureties, and generally tries to put things in place to secure your release. You don’t really know when your lawyer will be able to see you, and he or she will be focused on getting you released and will likely not want to talk about your charges, except to tell you what they are.

If the Crown is not consenting to release, you will almost certainly be scheduling a bail hearing for the soonest possible date, which means you will spend more days and nights at the Detention Centre. If bail is going to be difficult, your lawyer may need quite a bit more time to try to put together a viable plan. You may decide to start the ball rolling to enter a guilty plea and resolve the matter without bail. Each case is different and your lawyer will advise based on the specific details of your case.

 

This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.

23 Comments

  1. David
    July 1, 2016

    Hi, I’m not in legal trouble but I’m reading this explanation of how bail works and I just wonder what jail bonders do and if bail bond requires money up front to the crown.

    Reply
    • Miriam Martin
      July 26, 2016

      Unlike the US, bail bondsmen are illegal in Canada; we do not have them. When a cash deposit is required for bail, it is generally in an amount based on the financial position of the accused, tailored to the individual – enough that there is an incentive not to breach (because you don’t want to lose it), but not so much that the person can’t come up with the cash. That said, people often do borrow the cash from loved ones without a profit motive.

      Reply
  2. Brian Rinke
    September 1, 2016

    Im a victum of investment fraud with 80 other investors totaling 27 million. The individual has been caught and has been release on 2000 bail.

    What are the chances of him skipping bail?

    Reply
    • Miriam Martin
      September 1, 2016

      I couldn’t possibly answer that. In Canada, when there’s a bond amount (cash pledged to be paid if the accused does skip bail), it is usually an amount that is decided because it’s a lot of money for that person and they will want to avoid having to pay it, increasing the incentive to come to court. But there’s no way to know whether an individual will do well on bail or not.

      Reply
  3. Robin Michetti
    September 15, 2016

    Would you be able to tell me what the average time is between the bail setting and sentencing for robbery?
    Much appreciated.

    Reply
    • Miriam Martin
      September 15, 2016

      Hi there, again this is a question without a “general” answer, and would be case-specific. Some matters resolve in a matter of weeks, others take years. Sorry I can’t be of more help, but if you really want to know how long resolution of a particular matter might take, I recommend setting up a consultation with a local lawyer. Best of luck!

      Reply
  4. Bobbi
    November 3, 2016

    Hello. So a family member of mine paid 10k to bail another family member out of jail on assault charges. The charges were then dropped. Should that person receive all that money back? As far as I know they haven’t.
    Thank you.

    Reply
    • Miriam Martin
      November 15, 2016

      Hi there, first I apologize for the delay in responding! If you are in Canada, it sounds like the $10,000 was required as a cash deposit for bail. This usually happens when the court thinks the accused person might flee, for example if they actually live in another city (that’s the most common reason for requiring an actual cash deposit rather than just a promise to pay if bail is breached). And yes, the deposit should be returned if the matter is resolved without any breach of bail. I imagine different jurisdictions and courthouses handle this differently, but I suggest inquiring at the courthouse where the money was deposited – there should be a criminal court information desk that you can call or visit. Sometimes the accused person signs a form for the court authorizing the funds to go to someone else – to their lawyer or to legal aid, for example. If the money is not returned directly, that may be why. If there is no form authorizing the deposit to be returned to another person or to legal aid, then it may be (or have been) sent to the address that the court had for the accused at the time, which may or may not actually be their current address. I hope these bits of information are helpful. All the best.

      Reply
  5. Cody Ody
    December 3, 2016

    Thanks for this great summary – I am writing my criminal procedure final soon and this information was very helpful!

    Reply
  6. Bala
    December 18, 2016

    Hi,

    My borther is charged with 2666CCCX3,2641(1)(a)CCC,271CCC,152CCC,151CCC by his wife in ontario.

    What are the chances that he will get a bail
    How serious are these charges
    Are there any options for out of court settlement
    in worst case if he can’t a bail what will be maximum imprisonment time

    Thanks
    Bala

    Reply
    • Miriam Martin
      December 18, 2016

      It is not possible to answer these questions. Bail, seriousness of the offence, what might be negotiated for resolution by guilty plea, and ultimate sentence are ALL dependent on the facts, the individual accused person, the jurisdiction, the lawyers and the judge or jury. Your brother’s lawyer will answer these questions because she or he will have all the information required to do so.

      Reply
  7. Laurie McCall
    April 11, 2017

    Hi, I was asked a question on Quora about bail bondsmen & bounty hunters in Canada… because I’m Canadian. I know that these are illegal but wanted to provide the poster with a more robust answer. And I found myself interested in the subject once I started looking. Then I found your site, (yay!)
    I have two questions, if you don’t mind:
    1. While I know that there is something nasty about the bail bondsman industry, I don’t really know why it is considered discriminatory and immoral (a testament to my ignorance). Why has Canada rejected this system?
    2. If a person has enough of his/her own money to post a bond, does (s)he still need a surety? I (think) I understand that, broadly speaking, the accused can be released on recognizance, or released under the supervision of a surety with or without a financial undertaking. Am I understanding that right?
    Finally, I would like to link to this page when I post my answer to Quora, assuming you have no objection.
    Thanks,
    Laurie

    Reply
    • Miriam Martin
      April 13, 2017

      Hi Laurie, thanks for your interest. I can’t answer #1 with any certainty, as I am not a policy person. The response to #2 is a bit easier. Cash bonds are not the norm in Canada; they are used when the accused person lives out of jurisdiction (and is therefore a higher flight risk), and/or as an option when the individual doesn’t have a surety. The details of bail (including whether there is a bond and how much) are always ultimately case-specific, with the financial circumstances of the accused considered. Cash deposit is not the norm and not usually the first line of inquiry, unless the person lives out of jurisdiction. You’re right that for somebody who is NOT from out of jurisdiction, the cash deposit is an alternative to a surety (the Code frames it as recognizance without surety but with deposit), but the prosecutor must consent to this option. Hope this helps. Yes, do please share a link to our blog post in your discussion, recognizing that it is not any kind of endorsement by Avant Law, LLP of the discussion or any individual contribution to the discussion. In general, legal information should only be provided by those qualified to provide it and online discussions often result in misinformation.

      Reply
  8. Heather
    November 27, 2017

    How do I find someone to bail out my friend everyone we know has a criminal record

    Reply
    • Miriam Martin
      November 27, 2017

      Hi Heather, thanks for connecting. Yes, it’s really difficult for folks who don’t have a suitable surety in their lives. I’m not sure where you are writing from, but there may be bail supervision programs in your city/region, such as the John Howard Society or the Elizabeth Fry Society, or an Aboriginal program if your friend is First Nation, Inuit or Metis. Your friend’s lawyer will likely know and be exploring the options. Good luck.

      Reply
  9. Anne Harris
    January 9, 2018

    What happens in this scenario:
    -A person is released on a deposit (say for $1000).
    -They then they violate the terms of their release or commit more crimes while out on bond and are arrested.
    -They are back in jail.
    What happens to the $1000 deposit?

    Reply
    • Miriam Martin
      January 10, 2018

      Hi Anne, If there was a cash deposit and a breach of bail is proven, then the deposit is lost.

      Reply
  10. Scott D
    February 22, 2018

    Hi, I am curious how long between when a court case is done and when the bail is mailed to the person who posted it? I know the court mails it out, was just not sure on the timeline.

    Reply
    • Miriam Martin
      February 26, 2018

      Hi Scott, as mentioned in the post and comments, it is not the norm for bail in Canada to require a deposit. If you yourself had to deposit cash toward bail in Canada, I would not assume that it will come back to you automatically. I would inquire at the courthouse where you made the deposit. Good luck.

      Reply
  11. James
    February 28, 2018

    What if I am on my own bail or recognizance (still had to go to court to get out) no surety.

    1.) I wanna pull my bail at court? is this a possibility?

    2.) I cant stay in same city and might have too ditch court, how far would warrant spread?

    Reply
    • Miriam Martin
      February 28, 2018

      I’m not sure what you mean by pulling your bail. If you leave change your residence or do not appear in court as required, you will be in breach of your bail; it would be better to talk to your lawyer (or directly to the Crown, if you are self-represented) about the possibility of varying your conditions so that you are not breaching.

      Reply
      • James
        February 28, 2018

        Ok thanks, I mean Pull my bail , like if I want to go to jail now instead of staying on bail

        Reply
        • Miriam Martin
          February 28, 2018

          Ah, yes, you should be able to turn yourself in to the police, but you should definitely talk to your lawyer or to legal aid duty counsel before doing this. They can help you understand the risks and consequences in your specific situation.

          Reply

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