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Bail Hearings: What You Need to Know

Updated: Nov 15, 2019

Bail hearings play an important role in the Canadian criminal justice system, protecting the rights of individuals charged with a criminal offence. As the Supreme Court of Canada stated in the 2015 decision R. v. St-Cloud: “The repute of our criminal justice system rests on the deeply held belief of Canadians that the right to liberty and the presumption of innocence are fundamental values of our society that require protection. However, that repute also depends on the confidence citizens have that persons charged with serious crimes will not be able to evade justice, harm others or interfere with the administration of justice while awaiting trial.”

The bail system operates to balance individual and societal interests. In addition to protecting the rights of the person who is charged, the judge must ensure that the accused attend court dates and protecting public safety and public confidence in the administration of justice.

Is Bail a Constitutional Right?

Yes. The right to bail is protected in the Canadian Charter of Rights and Freedoms. Section 11(e) of the Charter provides that “Any person charged with an offence has the right not to be denied reasonable bail without just cause.” Under section 7 of the Charter, it has been clarified that individuals have the right to reasonable bail.

When Can Bail Be Denied?

Section 515 (10) of the Canadian Criminal Code sets out the only three grounds for which bail can be denied in Canada. The primary ground is when “detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.” The history of the accused can provide justification for denying or granting bail under this ground. If someone has been charged with offences in the past and appeared at all their court dates, this ground will most likely not result in being denied bail.

The secondary ground for denying bail is when a court believes that detention is necessary for “protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years.” Where a crime of violence is alleged, the Crown may argue this ground justifies denying bail to prevent the offender from committing further offences against the victim or other members of society.

The tertiary ground for denying bail is when “the detention is necessary to maintain confidence in the administration of justice.” Under this ground, the court will examine the apparent strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence and the possibility of a lengthy period of imprisonment if conviction.

The 2015 Supreme Court of Canada decision in St-Cloud considered the tertiary ground for denying bail. Mr. St-Cloud had been charged with aggravated assault for a very violent attack on a bus driver. After initially being denied bail, Mr. St-Cloud applied for a review and was granted bail. The Crown appealed the case to the Supreme Court of Canada. The Court was unanimous that consideration all the factors, Mr. St-Cloud’s detention was necessary to ensure public confidence in the administration of justice.

Do I Have To Prove That I Should Be Released?

In most cases, no. Because of the presumption of innocence, there is also a presumption that you will be granted bail. For the vast majority of criminal offences in Canada, the judge will start with the presumption that you are to be released from custody, unless the Crown can demonstrate why you should be held based on the three grounds listed above.

For a limited number of crimes, there is a reverse onus. This means the presumption is that you will be held in custody, and you must illustrate why you can be released. Reverse onus applies to offences listed in section 469 of the Criminal Code, the most notable of which is murder. As well, reverse onus applies to offences listed in section 515(6) of the Criminal Code, which includes a number of offences such as firearm and certain drug offences. Bill C-75, discussed further below, adds in another reverse onus for crimes of intimate partner violence.

If I Am Released, What Conditions Do I Have To Follow?

When a judge is releasing an individual on bail, they will commonly set conditions for the individual to follow while on bail. These commonly include an order to keep the peace and be of good behaviour, attend all court dates and reside at a particular address, notifying the court if any address change is needed. Other conditions may be added depending on the offence charged. For crimes against individuals, such as assault or uttering threats, bail conditions may include not contacting the alleged victim of the crime or possible witnesses to the offence. Conditions such as curfews, abstaining for alcohol and drugs and not possessing weapons are commonly added for various offences.

A criminal defence lawyer may argue in favour of certain conditions as a way to assisting their client be released from custody. For example, if the Crown is arguing the accused may not attend court, the defence may counter this argument by proposing conditions to alleviate thisconcern. Such conditions may include surrounding one’s passport to the court and periodically reporting to the police.

Do I Have To Pay Money To Be Released?

While cash bail is allowed in Canada, it is not common and is not preferred. At a bail hearing, a judge can order any of the following:

bail without any financial undertaking;a release on a recognisance (a promise to pay a certain sum of money if conditions are breached);a release with a surety (a third-party such as a family member who agrees to supervise the bail and who may have to pay money if conditions are breached); ora release with a financial undertaking, including the obligation to deposit money or other items of value with the court.

In making this decision, a judge will follow the ladder principle. As the Supreme Court of Canada set out in the 2017 decision R. v. Antic, the ladder principle “requires a justice or a judge to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case.” In Antic, the accused was denied bail where he promised a recognisance and surety, but not a cash deposit. The Supreme Court of Canada over-turned this decision, finding the judge misapplied the ladder principle and should have released Mr. Antic without requiring a cash deposit.

Bill C-75, passed by the Liberal government in June 2019, makes minor changes to the system of bail in Canada. The sections of Bill C-75 changing bail law will come into force later in 2019 and reinforce the importance of the ladder principle. Bill C-75 makes it clear that a promise to pay should be favored over a deposit, and that there should be greater restraint in the use of sureties.

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