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Bail and release from custody
More on bail hearings
- Why would I be denied bail?
- Reverse onus
- Terms of release
- Right to reasonable bail
- Publication ban
- Adjournment of bail hearing
Why would I be denied bail?
Detention is justified only if deemed necessary on one or more of the following grounds:
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to ensure that the accused attends court; e.g., if the accused has a history of failing to attend court or abide by other court orders
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to protect the public; e.g., an accused could be detained if he has 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
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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
Reverse onus
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:
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if he is charged with an indictable offence allegedly committed while he was on a release for an earlier indictable charge that is still pending, e.g., a driver facing an impaired driving charge who is charged with a new drinking and driving offence; a person facing an assault charge who is 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)
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if he is charged with an indictable offence and is not ordinarily resident in Canada
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if he is charged with failing to comply with a condition of a recognizance or undertaking, or failing to attend court or appear for fingerprinting, while he was on release for an earlier charge that is still pending
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if he is 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 the accused on an undertaking or upon his entering into a recognizance specifying a sum of money that is payable to the Crown if he fails to attend court or abide by the other conditions of his release (see forfeiture of bail below). Conditions can be attached to an undertaking or a recognizance.
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).
In the case of an offence involving violence and serious drug charges, the court can prohibit the accused 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 reach of the accused or his 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.
Publication ban
It may be important to seek a publication ban on the information disclosed at a bail hearing. The accused has an automatic right to such a ban; at his 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 the identity of the accused 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 the accused is detained, it may be a week or more before a bail review can be held. By then it may be too late to save his 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 the accused 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 an accused to make a statement confessing to the crime or identifying accomplices.