How does BAIL work in Canada?
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).
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.