For many offences, an accused will be released by the police on an undertaking after their detention and/or arrest. In certain instances, however, the police may decide not to release an accused. In such cases, the accused must be brought before a Judge or Justice of the Peace for a bail hearing.
- Bail, or Judicial Interim Release, is governed by Section 515 of the Criminal Code of Canada.
- In bail hearings, for less serious offences, the onus is on the Crown to prove that denial of bail is necessary in order to:
- Ensure attendance for subsequent court dates;
- Ensure the public’s safety and security;
- Ensure and maintain confidence in the administration of justice.
- If bail is granted, the presiding Justice has an obligation to give the least onerous bail conditions possible, unless a prosecutor shows cause for more serious conditions.
- If your release is denied, you could be forced to await your trial in custody.
Types of Release
Where granted, bail could take on one of several forms:
- Undertaking: the simplest and default form of release, an undertaking gives a brief description of the charges and stipulates that an accused must appear in court at a certain date and time. Depending on the charges, additional conditions may be imposed, such as restrictions on communicating with certain individuals, a weapons prohibition etc.
- Recognizance: a recognizance is effectively an acknowledgement that an accused will follow certain rules if released. A recognizance may take several forms: it could be without sureties and without a deposit, with sureties but without a deposit, without sureties but with a deposit or, in rare circumstances, with sureties and with a deposit. All of these scenarios could be accompanied by additional conditions.
- In those instances where the accused is not ordinarily resident in the province in which they are detained or does not reside within 200km of where they are detained, the accused could be granted bail with a deposit and with/without sureties.
In short, the surety supervises the individual who was granted bail.
The surety must ensure that the accused individual attends court and that they abide by the conditions of their bail. If an accused does not do so, the surety has an obligation to report this shortcoming to the authorities. Failure to do so would, if the surety had pledged money for bail, result in the forfeiture of that amount.
Not everyone qualifies to be a surety. If you are unsure whether you would qualify as such, it is paramount that you contact a defence lawyer.
The accused has the right, before the trial of the charge, to apply to have a superior court judge review their release order or remand. In these instances, the onus is on the accused to prove that the initial order should be vacated. This may be done by showing that there has been a material change in the circumstances of the accused, by proving that the initial order had an error in principle/law, or by establishing that the previous decision was clearly inappropriate. Bail review can be a tricky process. Having a criminal lawyer by your side to guide you through this process can increase your chances of success.