Bail and release from custody
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More on bail hearings
Why would I be denied bail?
Detention is justified only if deemed necessary
on one or more of the following grounds:
to ensure that you attend court; e.g., if you have a history of failing to attend court or abide by other court
to protect the public; e.g., you could be detained
if you have a criminal record for similar offences; in the case
of an assault or threatening charge, a history of violence against
the same complainant works in favor of detention
to maintain confidence in the administration of justice; the
court will consider the apparent strength of the prosecution's
case, the gravity of the offence, the circumstances surrounding
its commission and the potential for a lengthy jail term
The onus is generally on the Crown to show
cause why the accused should not be released (a bail hearing is
also called a "show cause" hearing). In some situations, the onus
is switched and it is the accused who must show cause why he should
not be detained. For example:
if you are charged with an
indictable offence allegedly committed while you were on a release for
an indictable charge that is still pending, e.g., if you are facing an impaired driving charge and get charged with
a new drinking and driving offence; or if you're facing an assault
charge and are arrested on another assault charge. If the Crown
has elected summarily on the
first charge, it is no longer considered indictable and it is
the Crown that must show cause.
NOTE: The Crown may delay its election to proceed summarily so that if you're arrested on a new charge, the onus will be on you to show cause why you should not be detained. Your lawyer can request the Crown to make its election early in the proceedings.
if you're charged with an indictable offence and are not ordinarily
resident in Canada
if you're charged with failing to comply with a condition
of a recognizance or undertaking, or failing to attend court
or appear for fingerprinting, while you were on release for a charge that is still pending
if you're charged with trafficking or possession for the purpose
of trafficking in heroin, cocaine, more than three kilograms
of marijuana or hashish, or importing any amount of these drugs
Terms of release
The court can release you on an
undertaking or upon your entering into a recognizance specifying
a sum of money that is payable to the Crown if you fail to attend
court or abide by the other conditions of your release (see forfeiture
of bail below). Conditions can be attached to an undertaking or
Besides those conditions noted above in
respect to an undertaking entered into at a police station, the court can impose any other reasonable
condition it thinks desirable (e.g., a curfew for a youth, treatment
for substance abuse in cases where drugs or alcohol are involved
or counselling for anger management in assault cases).
case of an offence involving violence and serious drug charges,
the court can prohibit you from possessing a firearm,
ammunition and explosives. An accused who is ordered detained
also can be directed to abstain from communicating with a witness.
Right to reasonable bail
The Canadian Charter of Rights and Freedoms
gives everyone the right not to be denied reasonable bail without
just cause. Accordingly, bail must be set at an amount within
your reach or that of your sureties. A recognizance can be with
or without sureties. A surety supervises the accused and is liable
for the amount of the recognizance. Unless the accused is from
out of province or lives far from the place of custody, the money
specified in the recognizance need not be deposited with the court.
It may be important to seek a publication
ban on the information disclosed at a bail hearing. You have an automatic right to such a ban; at your request, the court
must ban publication of the evidence taken, the information given,
the representations made, and the reasons given by the court for
its decision. The ban remains in place until the charge is disposed
of. The decision granting or refusing release is not subject to
the ban, nor is your identity or information journalists
obtain from police.
Adjournment of bail hearing
The court can adjourn a bail hearing at
the request of the Crown or accused. Unless the accused consents,
an adjournment cannot exceed three days.
As a detention order
can result in the accused person losing his job, it is vital to
prepare carefully for a bail hearing, even if such preparation
necessitates an adjournment. Be warned: if you are detained,
it may be a week or more before a bail review can be held. By
then it may be too late to save your job. A bail review can be
costly. It generally costs less to hire a lawyer to prepare for
a bail hearing.
As the Charter protects you against arbitrary
detention, Crown discretion to seek an adjournment must not be
abused. For example, it would be improper for the Crown to adjourn
a bail hearing to pressure you to make a statement confessing
to the crime or identifying accomplices.
Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.