An essential guide to the bail process and surety obligations in the Canadian justice system.

Bail Hearings in Canada

Bail Hearings in Canada: The Judicial Interim Release

When a person is charged with a criminal offence, they may not be automatically released by the police. In these situations, the individual is required to attend court for a bail hearing, which is also known as a judicial interim release hearing. The function of bail is to establish if the defendant can be reintegrated into the community pending trial, and under what terms.

The Right to Bail

According to section 11(e) of the Charter of Rights and Freedoms, every individual facing charges has the right “not to be unjustly denied reasonable bail.” This indicates that the court must free an accused individual unless the Crown demonstrates compelling reasons for ongoing detention.

The Three Grounds of Bail

A judge or justice of the peace will determine bail based on three primary criteria outlined in the Criminal Code:

1. Primary Grounds (Attendance in Court)

• Guarantees the defendant will be present in court as needed.
• If the court thinks the individual might escape or fail to come back for trial, bail might be refused.

2. Secondary Grounds (Public Safety)

• Safeguards the community by evaluating if the defendant is a threat to victims or society.
• Previous criminal history, acts of violence, or violations of earlier orders are significant factors in this case.

3. Tertiary Grounds (Public Confidence in Justice)

• Guarantees that the release won’t shake public trust in the justice system.
• Factors to consider are the severity of the crime, the robustness of the Crown’s case, and the possible punishment upon conviction.

Sureties in Bail Hearings

In some cases, the court may require a surety before granting bail.

A Surety Is:

• A trustworthy adult (usually a relative or acquaintance) who consents to supervise the accused.
• Responsible for ensuring the accused follows bail conditions and attends court.
• Required to pledge (and occasionally deposit) a certain amount of money, which could be lost if the defendant violates the terms.

Duties of a Surety:

• Monitor the defendant and document violations.
• Ensure the defendant follows bail requirements (e.g., curfew, no interaction with complainants, no alcohol).
• Report to the police if the defendant fails to adhere.

Conditions of Bail

When bail is granted, it often comes with conditions, such as:

• Reporting to law enforcement at scheduled times.
• No interaction with victims or co-defendants.
• Avoiding specific locations.
• Evening restrictions or home confinement.
• No firearms or alcoholic beverages.
• Limitations on travel.

These conditions will depend on the nature and extent of the actions of the accused.

When Can Bail Be Denied?

• The defendant presents a risk of fleeing.
• There is a significant chance of reoffending or putting others at risk.
• The crime is extremely grave (e.g., weapons, substance distribution, acts of violence).
• The defendant has a record of violating bail or probation conditions.

Why Bail Matters?

• Securing bail allows the accused to go back to their community, maintain employment, and prepare their defence while not in custody.
• Pre-trial detention can adversely affect the case result, frequently coercing individuals into pleading guilty.
• Possessing a solid surety plan and an attorney to represent at the hearing can greatly enhance the likelihood of release.