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Understanding Bail in Canada

Whenever a person commits a serious offence that requires them to be detained, they are then separated from their home, their family, and their friends. Understandably, this can be an incredibly stressful and anxious time for these individuals, who do not yet know their fate and remain cut off from their loved ones. Thankfully, many individuals in the criminal justice system have the opportunity to be released from custody – this is known as bail. 

So how does bail work for individuals accused of a crime in Canada? In this post, What The Law provides an overview to bail in courts across Ontario and Canada. We look at what bail is, who is eligible, and how it is granted through bail hearings.

What is Bail?

Bail is a court order which permits an individual charged with a criminal offence to be released from custody while they wait for a final decision on their case. 

Bail comes with multiple conditions depending on the criminal case. For example, if the person is facing an assault or violence charge, they may have to promise to remain distanced from the alleged victim and not contact them at any point. 

Who Can Get Bail?

If you have been arrested and you were not released, you will have a right to a bail hearing before a judge. There are three reasons or “grounds” for why the court may not want to release you back into the community and keep you detained. 

  1. The court believes you will not come to court when expected and there is a risk of you fleeing. Therefore, the court believes you must be detained to avoid this.
  2. The court believes there is a risk of you re-offending when released into the community or there is a risk of danger to public safety. It is in the court’s interest to detain you to protect the public as a whole.
  3. The administration of justice would be in disrepute if you were released, due to the seriousness of the charge or the circumstances regarding the offence. It is in the court’s interest to detain you to keep the public’s confidence in the justice system.

Indictable offences which are charges that are typically very serious such as Murder, Sexual Assault, Aggravated Assault, Firearms, Drug Trafficking, and Break and Enter, are charges where there may be a “reverse onus”. This means that the onus is on defense counsel to “show cause” why their client should be released back into the community. 

Now if the court decides to release you back into the community, the court may still consider what type of release or level of supervision you should be on. You may have certain conditions you may have to abide by such as a curfew and/or may have to be released under the supervision of a surety.

A Surety is an individual who promises to monitor the accused while they are on bail. Additionally, they may be expected to pledge money to the court to demonstrate that they will make sure the accused person follows their bail conditions accordingly.The purpose of the deposit is not to earn money for the court, but to ensure that the Surety is fully aware of their responsibility for the accused and that they demonstrate trust in them by pledging a financial amount to the court. 

Bail Hearings

It is important to note that bail hearings are not trials. This means that the outcome of a hearing will not affect the decision as to whether the accused is innocent or guilty. Bail hearings are there to decide if a person may return to everyday society while waiting for their trial or judgement. During the hearing, the Crown must demonstrate why the accused should not be released. They may consider things such as how much of a threat they pose to others, or even if they are safe outside of custody. This is where a criminal defence lawyer can act to best represent and demonstrate the accused’s case to be released on bail.

If the bail is granted, they will be released from custody and are normally allowed to reunite with their family (depending on the conditions of the bail). If the accused is refused bail for whatever reason, they will be returned to custody until their criminal case is resolved. Depending on the circumstance, the accused may have a right to another bail hearing before the court if a Bail Review is completed and granted. However, a bail review will only be granted if there has been a significantly important or “material” change in circumstances or an error in law was made at the previous bail hearing. 

Even when released on bail, there may be circumstances where the accused might face another bail hearing or review. If they receive new criminal charges while already on bail or ignore the bail conditions and catch a “breach” charge, the accused is then expected to prove why they should remain on bail, rather than the other way round and another bail hearing will have to be performed before the court.

Seek Support with a Bail Hearings Lawyer

People charged with criminal offences will receive only one opportunity for a bail hearing at the Ontario Court of Justice. For this reason, it is important that they have experienced legal professionals by their side to give them the best chance possible of securing bail. Another chance at bail will only be granted if you meet the requirements to be granted a bail review so it is important that you do not run a bail hearing prematurely. It is important for your bail hearing that you and your defense counsel prepare accordingly and have the right sureties, if needed, in place the first time. 

If someone close to you is currently in custody and has the chance for a bail hearing, do not hesitate to reach out for legal support. At What The Law, our criminal defence lawyers have years of experience successfully earning bail for our clients. Contact us today to learn about how we can help you and your loved one – we are ready to fight for their case!

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