The Canadian government is poised to revise the country’s laws about releasing criminal suspects on bail while they await trial. This legislation — Bill C-48 — would make it more difficult for some criminal suspects to secure pre-trial release, and was spurred by recent increases in Canada’s violent crime rate.
Now is the perfect time to take a closer look at how the bail process works based on federal law and provincial operations.
What is Bail?
Commonly referred to by the courts as “judicial pre-trial” or “judicial interim release,” the Canadian government developed the country’s bail system to comply with Section 11 (e) of the Canadian Charter of Rights and Freedoms, which states: “Any person charged with an offence has the right not to be denied reasonable bail without just cause.”
In several decisions, the Supreme Court of Canada has interpreted this to mean that the “release of accused persons is the cardinal rule and detention, the exception.” It has also ruled that pre-trial release should be granted at the earliest reasonable opportunity and with minimal conditions.
What Happens at a Bail Hearing?
If the severity of the criminal offence warrants holding you in custody after your arrest, you will be brought before a bail hearing. During this hearing, the Crown will describe the allegations against you and argue why you should be held in pre-trial custody or, barring that, provide justification for releasing you on strict bail conditions.
If the Crown fails to make its case on pre-trial custody, you will be freed. If not, the bail hearing may be adjourned to provide both sides time to gather evidence supporting their respective positions.
How Long Does a Bail Hearing Take in Canada?
Criminal suspects have the right to a bail hearing within 24 hours or as soon as reasonably possible (based on the bail hearing docket).
What Does It Mean by Bail Hearing Show Cause?
Show cause is one of the most essential components of a bail hearing. In most bail hearings, it refers to the burden placed on the Crown to prove why the accused should be held in pre-trial custody.
To show cause, the Crown must prove that one or more of the following factors justifies keeping the suspect behind bars while awaiting trial:
- The alleged offender’s pre-trial incarceration is needed to ensure they will attend court as required.
- The incarceration is necessary to protect the public from the risk of further criminal activity and/or to protect witnesses from harm, interference, or intimidation.
- The detention of the accused is necessary to prevent the public from losing “confidence in the administration of justice.”
While the onus is on the Crown to show cause in most bail hearings, several conditions create a reverse onus bail hearing during which the defendant must show cause as to why they should be released. These conditions include:
- The accused is currently on release on bail for another indictable offence.
- The accused has breached bail conditions granted by a judge.
- The defendant has breached a conditional sentence order.
- The Crown is processing an application for bail revocation and the defendant has breached bail conditions.
Canada’s Criminal Code mandates that several criminal offences warrant reverse onus bail hearings. They include:
- Drug trafficking
- Criminal organization-related offences
- Serious firearms and weapons offences
- Terrorism
- Security of Information Act offences
Bill C-48 is set to expand these reverse onus bail hearing requirements in order to cover more offences related to firearms, weapons, and actual, threatened, or attempted violence.
What is a Special Bail Hearing in Ontario?
If the complexity of the criminal case and/or justification for pre-trial custody or release will necessitate extensive examination by the bail hearing court, the Crown or defence can request a special bail hearing. These hearings are held on “[m]atters of such length that they cannot be accommodated in regularly scheduled bail courts.”
Can You Be Denied Bail in Ontario?
Absolutely. The more severe the crime, the more likely the court will hold you in pre-trial custody. A criminal record with repeat offences, along with previous bail revocations or failure to return to court, can also hinder the likelihood of gaining bail.
How Much Does a Bail Hearing Cost in Ontario?
A bail hearing itself does not impose court costs on a defendant.
Any money pledged by the defendant or a surety for the pre-trial release will only be at risk of being forfeited if the defendant breaches bail conditions. In such cases, the judge will typically hold a hearing to determine whether or not the breach warrants full or partial forfeiture.
How Many Bail Hearings Can You Have in Ontario?
In general, most criminal suspects are granted bail during their first hearing. However, when the Crown contests bail, this typically leads to at least one additional bail hearing. Those denied bail can make a judicial appeal, which could lead to another bail hearing.
What Happens After a Bail Hearing?
If bail is granted, you will be released under one of several parameters that carry different conditions, including:
- Undertaking without conditions — based merely on the promise that you’ll attend court as required.
- Undertaking with conditions — including curfews, abstaining from alcohol and drugs, and limits on who you can see or where you can go.
- Own recognizance — with conditions set by the court and a pledge of money that will be forfeited if you fail to attend trial.
- Surety recognizance — a surety pledges money to ensure trial attendance and promises to supervise you in complying with release conditions.
- Residential surety — similar to a surety recognizance, but the conditions mandate that you live with the surety.
If bail is not granted, you can appeal for a judicial review of the denial.
How a Criminal Lawyer Can Help You Get Released Faster
The legal complexities of the bail process in Ontario make it difficult for many accused suspects to secure a speedy release with the least restrictive conditions possible.
Generally, the more severe the offence, the more difficult it is to gain bail – and failure to gain pre-trial release can compromise your ability to help strategize an effective defence.
If you’ve been arrested for a serious criminal offence, it’s imperative for you to hire a skilled legal defence team who can help gain timely pre-trial release under the most favourable conditions possible. To start off your criminal defence on a positive, contact our skilled legal team at Vilkhov Law for a free and confidential consultation.
