Purser Law Blog

How Does Bail Work in Canada?

Presumption of Innocence / Release:

Bail, also called ‘judicial interim release’, is governed by section 515 of the Criminal Code and section 11(e) of the Canadian Charter of Rights and Freedoms. Section 515(1) of the Code and section 11(e) the Charter both ensure that everyone is granted reasonable bail unless there is a good reason not to. This means that the default (or presumptive) position is that individuals are granted bail with no conditions.

 

In a typical bail hearing, the burden is on the Crown to justify why someone should not get bail. Further, the Crown must justify why any additional conditions placed on a person who is granted bail are necessary and reasonable. There are some exceptions to this principle, which include when individuals are charged with offences under section 469 of the Criminal Code (e.g., murder) or when they have previously been granted released and are alleged to have breached a condition of that release. All these exceptions are listed at section 515(6) of the Code.

 

The presumption of release is connected to the presumption of innocence. According to the Supreme Court of Canada in The Queen and Zora, 2020 SCC 14, the presumption of innocence requires the state to presume that each person is harmless, making it wrong in principle to require individuals to follow strict bail conditions unless there are strong reasons for doing so. Otherwise, the state would be unfairly restricting the liberty of people who are presumed innocent of the crimes for which they’re charged.

 

The “Ladder Principle”:

Due to the presumption of release, the default position for release is a summons or appearance notice with no conditions. If any conditions are deemed necessary for the individual to be released on bail, then the conditions imposed must be the least onerous conditions available in the circumstances. As the conditions required for someone to be safely release become more intense, the individual seeking bail “moves up the ladder” so to speak.

 

All release orders other than appearance notices, summons or undertakings, require a financial obligation. If the financial obligation is a ‘promise to pay,’ then the government could come after the individual released on bail for the specified amount if they are found breaching a condition of that bail. If the financial obligation requires ‘cash’ or a ‘deposit,’ then the state will already have this amount deposited and may seek forfeiture of that deposit if the individual breaches a condition of their bail. 

 

The next rung on the ladder is a surety (with or without the accused person’s promise to pay). A surety is an individual who deposits or promises to pay a sum of money to ensure that the accused person abides by their bail conditions. The role of a surety is to provide an additional layer of supervision while the accused is on release. If the surety is caught allowing the accused to breach a condition of their release, the government could seek forfeiture of their deposit or come after them for the amount promised. If the accused breaches a condition of their release, and the surety calls police to report the breach, then they will have fulfilled their obligation to the Court and should not be required to forfeit their deposit of pay their pledge.

 

Conditions meant to modify behaviour can also be imposed when an individual is released on bail. These conditions can include a requirement that the accused person report to probation, that they remain in the jurisdiction, that they have no contact with the complainant in their criminal matter, not attend certain places, seek employment, not have firearms, not consume alcohol or drugs, etc. The burden is on the Crown prosecutor to prove that these conditions are necessary to ensure the accused person comes to court in the future, that they do not commit a further offence while on release, or to keep public confidence in the administration of justice.

 

An Experienced Bail Lawyer Edmonton can provide advice as to whether bail conditions being proposed by the Crown prosecutor are reasonable and can help you come up with a bail plan to assist you in getting released.  

 

Three Grounds of Bail:

When determining if an individual can be released on bail, the Court will look to three primary factors, called the “three grounds of bail.”

 

Primary Ground: Attendance in Court:

The first ground addresses the likelihood that the person will attend future court appearances if they’re released on bail. There are many factors which the Judge considers when determining if someone can be released in relation to the first ground. These includes: the kind of offence the person is charged with and the possible sentence they will receive if convicted; the strength of the Crown’s case; the accused person’s ties to the community and whether they have family or employment in another jurisdiction; the accused person’s record of compliance with court orders; and the accused person's behaviour prior to being arrested by police.

 

 

Secondary Ground: Public Safety:

The secondary ground is related to public safety. Bail can be denied where there are significant concerns that an individual will re-offend while on release, and where the proposed bail plan does not address the factors which lead to the alleged offences in the first place. When determining whether an accused person should be granted release on the secondary grounds, the Court will consider the criminal record of the accused person; whether they were on release or bail at the time of the offence; the stability of the accused person; and the nature of the offences and the strength of the Crown’s case.

 

Tertiary Ground: Public Confidence in the Administration of Justice:

The tertiary ground considers whether the continued detention of the accused person is necessary to maintain public confidence in the justice system. This is evaluated by looking to the strength of the Crown’s case; the gravity of the offence; the circumstances surrounding the commission of the offence, including whether a firearm was used; and whether the accused person is liable for a potentially lengthy term of imprisonment upon conviction.

 

If the Crown prosecutor is opposing your release on any of these grounds, an Experienced Edmonton Bail Laywer to assist you at your bail hearing or help you come up with a bail plan to address the Crown’s concerns.

 

Are you awaiting a bail hearing?

If you or someone you know have been criminally charged and are awaiting a bail hearing, an experienced Edmonton Bail Laywer at Purser Law would be happy to assist at your bail hearing. Contact our office at 780-851-7435 for a free 30-minute consultation.

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