3. Bail

If you are arrested and charged with an offence, you could be held in custody or you could be released on bail (“judicial interim release”) until your trial. A bail hearing is where a judge decides whether you should be released or held in custody until your trial, and if you are released, what types of conditions you should follow in the meantime.

You have the right to have a duty counsel lawyer (lawyers available at the courthouse or on-line who help accused persons for free) to help you with your bail hearing. You may apply to legal aid if you cannot pay for a lawyer yourself. You do not have to have a lawyer, but you may be at a disadvantage at your bail hearing if you do not have assistance from a lawyer. A lawyer can negotiate with Crown, find more details about the allegations, and help you prepare and put in place a release plan (conditions that may make custody unnecessary) to present to the Court. You should talk to a lawyer to get advice on how to best present your bail case.

Right to disclosure

As discussed above, the Crown is required to give you copies of the information, called disclosure, they have about your case and the evidence that it intends to call at your trial. Although the Crown must do this quickly, it is unlikely that it will be able to make full disclosure before your bail hearing.

The Crown should at least give you a copy of the charges against you, the facts alleged relating to the charges, the names of some of the important witnesses it will probably call at trial. Sometimes you will be given additional disclosure, such as a description of what those witnesses will probably say. If the Crown have not done so, you may ask that they do so before your bail hearing, although that may delay your potential release.

Once you have been arrested and charged, you should be brought in front of a judge or justice of the peace for a bail hearing as soon as possible, usually within 24 hours of your arrest. If your bail hearing will be relatively straightforward you usually have the opportunity to run the hearing right away, although you or the Crown counsel may apply to adjourn the bail hearing if either one of you needs more time to prepare – you should normally seek legal counsel (including duty counsel) before you proceed with bail. However, if your bail hearing will be more complicated, the court will set a longer hearing, likely at a later date.

At your bail hearing, the judge is not deciding whether you are guilty or not guilty. The hearing is only to decide if you should stay in custody or be released until your trial.

Note: If you have been charged with murder or other serious offences listed in section 469 of the Criminal Code, there are different procedures in place for obtaining bail and you should consult a lawyer. You will have to file an application for bail with one or more affidavits describing the facts you want the Court to consider in deciding where you should be released or held in custody. The Court will set a date for the bail hearing.

Grounds for Detention

You are still entitled to the presumption of innocence at this point. As a result, with some exceptions, it is up to the Crown to show why you should be detained or kept in jail until your trial or sentencing. There are three grounds (i.e. reasons) the Crown can argue you should be detained, and they must state which grounds apply in your case. The three grounds are:

• Primary ground: To ensure you attend court when required to do so. The Court may consider your criminal record, if you have any history of failing to attend court, and your connections with the community. If the Court is not confident you will attend court, you may be detained.
• Secondary ground: To ensure the protection of the public. If the crime you are accused of committing is violent, you have a long criminal record, or you have a history of failing to comply with court orders, the Court may find that you are a danger to the public and may not release you.
• Tertiary ground: To maintain confidence in the administration of justice. This is usually only used for very serious offences. The Court will consider the strength of the Crown’s case, the seriousness of the offence, the circumstances, and the potential jail sentence.

Reverse Onus

In some circumstances, the onus is shifted to you to show why you should be released. These circumstances include if you breached a condition while out on bail, or if you are accused of committing an offence involving trafficking hard drugs, as well as certain offences involving firearms, among others. For a full list of reverse onus offences, see section 515(6) of the Criminal Code of Canada.

Evidence

Most bail hearings are conducted with oral (spoken not written) submissions from the Crown, your lawyer / duty counsel (if you have one), and you. Hearsay (see Section 7.2 Hearsay) may be allowed (there may be restrictions) at bail hearings, and in many provinces, the Crown may simply narrate (give / tell) an outline of the charges against you and the evidence it has to prove your guilt. If you have a criminal record, the Crown will likely present that to the court. If the Crown does call witnesses (not usual), you will have a right to cross-examine them.

You can also call witnesses to give evidence at your bail hearing. Accused may call potential sureties (family members or friends who the court appoints to supervise you while you are on bail) as witnesses at bail hearings. You may also decide to testify but be aware that if you testify and you talk about the events that led to the charges against you, the Crown is then allowed to ask you about these events. If you do not testify about the facts of your case, the Crown cannot cross-examine you about the events that led to your charges.

At bail hearings, the Court typically is interested in understanding your personal circumstances. For that reason, evidence typically presented by the accused includes:

• where you will be living;
• who you will be living with;
• what you will be doing if you are released from custody (work, school, etc.);
• if there is anyone willing to vouch (be a surety) you;
• your willingness to obey conditions of your release; and
• if you or another person can deposit money with the court as a guarantee of you accepting the conditions of your release.

After all the evidence and submissions have been presented, you and the Crown will each explain to the judge why you should or should not be released. The judge will decide if you should be released without conditions, released with conditions, or detained / denied bail.

Release Plan and Conditions

Pay attention to what the Crown argues are the reasons for you to be detained – the Crown, normally, has the onus to show why you should be detained. You will have the opportunity to show why the Crown’s concerns are unfounded or can be relieved with certain conditions to your release.

The conditions the Court may impose upon release, if any, depend on your personal circumstances as well as those of the alleged offence. If the Crown has very serious concerns about your release, be prepared to provide a strong release plan with conditions that will address their concerns. The following are common conditions the Court may impose and you could suggest as part of a release plan:

• Report to a bail supervisor.
• Attend counselling.
• Reside at a certain address.
• Release only to a recovery home.
• No contact with certain individuals.
• Restrictions to specific geographic areas.
• No weapons - sometimes mandatory depending on what you are charged with.
• Cash deposit and / or surety to guarantee you will come to court when required, may be required if you live more than 200km from court.
• Other conditions the Court deems reasonable.

If you have any money to deposit, you should tell the court how much you have. Cash deposits should be tailored to your financial situation.

Sometimes it is worth delaying your bail hearing to get a good release plan in place (and the advice of a lawyer) as it may increase the likelihood of your release.

It is very important that you follow the conditions of your bail. If you fail to follow your conditions you might be arrested again and your chances of being released from custody will be significantly reduced. If you find yourself in a position where you might not be able to follow your conditions, you should talk to a lawyer, your bail supervisor, or Crown, about having your conditions changed. This is also important because breaching your conditions is an offence and could result in more charges. If you breach your conditions, the Court may decide that you are unable to follow court orders and detain you.

Revoking Bail

If you are accused of breaching the conditions of your release or of committing a new offence while out on bail, a judge may issue a warrant for your arrest and the Crown may apply to revoke your bail. In that case, you will be in a reverse onus position and will need to show the judge why you should be released again. The judge may revoke your current bail and either detain you, release you on stricter conditions, or not change anything at all.

If you have been denied bail or if you want to change your bail conditions, you can apply (on notice to the Crown) to have a bail review hearing in the superior court.

Reopening Bail on Consent

Reopening your bail means you will have another chance in the court that granted (or denied) bail, to change your conditions of release or argue for your release, on a changed circumstance, without a formal review. This will only happen if the Crown consents to reopen your bail. Otherwise, you must apply for a bail review.

Bail Review

You may apply at any time, after denial of bail, and every 30 days thereafter, before trial for a judge of a superior court to review your bail order. Although you can apply every 30 days, realistically, unless something material has changed, it is unlikely that the court is going to reconsider the terms of a Release Order. To apply for a bail review you usually need to file and serve on the Crown:

• a notice of application;
• supporting affidavits; and
• the transcript of the original bail hearing.

The review will be based on the transcript and exhibits of the original hearing and the original judge’s decision. You are usually responsible for obtaining and paying for the transcript of the original hearing (which can be expensive). You and the Crown may also present further evidence. This additional evidence can be given by affidavits or by calling witnesses.

If the review was requested by you, you must convince the judge that at least one of two things happened:

1. the original judge made a mistake in how they interpreted or applied the law to your case, and that this error affected how the judge made their decision; or,
2. there has been a material change in circumstances since your original bail hearing, and that if the decision was made today, the decision would be different.

You and the Crown will have the opportunity to show the judge why you should be held in or released from custody or why your bail conditions should be changed. The judge will either dismiss your application (i.e. make no changes to the bail order) or make a new order that they think is right in the circumstances. If you wish, you can ask the judge to make an order that the evidence and the arguments at your bail hearing, as well as the judge’s decision, cannot be published or broadcast (publication ban) until your trial is over.

Note: You may also have an automatic right to apply for a detention review if you are held in custody for 90 days (s.525 of the Criminal Code). You should seek legal advice to better understand your rights to a detention review.