What are Bail Hearings?​

This article is a brief and general overview about Bail Hearings. Bail Hearings (or Judicial Interim Releases) are a type of court proceeding, and occur after a person is charged with a criminal offence. Once the accused is charged with a criminal offence, they will then have to go to court to see a judge or (justice of the peace). At the bail hearing, the judge (or justice of the peace) will then decide on whether the accused (person charged with the criminal offence) can receive bail. Bail is a court order that allows the accused to be released from police custody and remain in the community whilst awaiting trial. When an individual is released on bail, they may be release with or without conditions that they must follow during their release. If an individual violates their bail conditions, and breaches the court order, then they may be remanded back into custody. 

 

It is important to note that the judge (or justice of the peace) can also deny the accused bail, which results in accused being held in police custody and remain in jail whilst their legal case proceeds through the courts. Since bail is based upon a judge's decision, this means that not everyone charged with a criminal offence will receive bail.  

 

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​How do Bail Hearings work?

There are 4 main steps to how Bail Hearings work: 

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Step 1: 

Under the Criminal Code of Canada, the accused (person charged with the criminal offence) has the right to a bail hearing within 24 hours of being arrested if a judge (or justice of the peace) is available. If a judge is unavailable, then the accused must be given a bail hearing as soon as possible once a judge becomes available. At the Bail Hearing, you will have the opportunity to speak with either your lawyer or a free lawyer (called a Duty Counsel) who will best advise you on your legal options. 

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Step 2: 

During the Bail Hearing, the Crown will read out the alleged criminal offences you are being charged with. It is important to note that it is the Crown's job to show why you (the accused) must not be allowed bail. 

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​Step 3: 

Your lawyer or duty counsel may either call you (the accused) and/or a surety in order to help convince the judge (or justice of the peace) why you should get bail. A surety is a person who comes to court and promises to supervise you (the accused) while you are out on bail to help ensure you do not breach your bail conditions.

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Step 4: 

After your lawyer (or duty counsel) presents your side of the story to the court, and the Crown has presented their views, the judge (or justice of the peace) will then decide whether to release you on bail, or keep you in jail until your trial. If you are released on bail, there will usually be conditions (called Bail Conditions) that you must follow. If you do not follow the conditions exactly, then you could be remanded back into police custody. ​

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What are possible reasons I could be denied Bail?

It is important to note that everyone accused of a crime in Canada have the right to liberty and are presumed innocent until they are proven guilty in a court of law. Under Section 11(e) of The Canadian Charter of Rights and Freedoms, it states that any individual charged with a criminal offence has the right not to be denied reasonable bail without "just cause", which are outlined under section 515(10) of the Criminal Code of Canada. In Canada, there are 3 scenarios/conditions in which the accused may be denied bail. These are known as the Grounds for Detention:

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1. Primary Ground: Detention is necessary in order to ensure the accused attends court

2. Secondary Ground: Detention is necessary for the protection or safety of the public, including victims or witnesses, having regard to all the circumstances including any substantial likelihood that the accused will, if released, commit an offence or interfere with the administration of justice.

3. Tertiary Ground: Detention is necessary to maintain confidence in the administration of justice.

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Who has the burden of proof or "Onus" in bail hearings?​

In Bail hearings, it is the Crown's job to seek the detention (denial of bail) of an accused person and the Crown must demonstrate to the Court that there is just cause to detain the accused individual. This is referred to as "Onus", and means that the Crown bears the responsibility to show that the accused should not be granted bail. The Crown must show why the accused must be denied bail under one of the 3 grounds for detention. If they are unable to adequately show this, by law, the accused individual will be granted bail.

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However, it is important to note that in some specific scenarios, such as in organized crime, terrorism, or certain serious offences involving firearms or repeat violent offenders, the accused must show the Court why they should be granted bail. This is referred to as a "Reverse Onus", and in these cases, the accused must be detained while awaiting their trial. 

 

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