Bail (Canada)

Bail in Canada refers to the release (or detention) of a person charged with a criminal offence prior to being tried in court or sentenced. A person may be released by a peace officer or by the courts. A release on bail by the courts is officially known as a judicial interim release. There are also a number of ways to compel a person's appearance in court without the need for an arrest and release. The Canadian constitution guarantees the right not to be denied reasonable bail without just cause. Unlike some other jurisdictions, for example the United States and the Philippines there are no bondsmen or bail insurance policies in Canada.

Video Bail (Canada)

History

The Canadian law of bail originates from the English legal tradition (see main article: Bail In England and Wales). The first major Canadian legislation with respect to bail was in the criminal legislation package of 1869; in that law, the federal government made bail discretionary for all offences. This provision was subsequently subject to much judicial interpretation, but the next major statutory change to bail in Canada was the 1960 Canadian Bill of Rights which provided for a "right to reasonable bail" in s. 2(f). This provision was subsequently used by the courts to rule, for the first time, that the Extradition Act included a right to bail. In the early 1970s, the procedure for granting bail in Canada was completely revised by the Bail Reform Act. This act placed the onus for justifying an accused's detention on the prosecutor, gave police new powers to release persons charged with an offence prior to their coming before a justice, and created detailed procedures for bail reviews. In 1982, the Canadian Charter of Rights and Freedoms enshrined the right to bail in the Canadian constitution. Section 11(e) of the Charter stipulated that "any person charged with an offence has the right ... not to be denied reasonable bail without just cause". This was subsequently used by the Supreme Court of Canada to strike out bail provisions of the Criminal Code which the court held to be excessively vague in R. v. Morales.

Maps Bail (Canada)

No arrest made

Summons

A provincial court judge or a justice of the peace can issue a summons requiring an accused to appear in court on a given date. The summons can also indicate when a person is required to report for fingerprinting and a mug shot. Failure to comply with the summons can result in an arrest warrant and further charges.

Appearance notice

If a peace officer is satisfied on reasonable grounds that an arrest is not necessary to establish the identity of the person, secure or preserve evidence, or prevent the continuation of the offence or the commission of another offence, they can issue the person an appearance notice instead of arresting them, provided that the offence is a summary conviction offence, a hybrid offence, or an offence within the absolute jurisdiction of a judge of a provincial court.

Like a summons, an appearance notice directs the accused to appear in court on a given date, and to report for fingerprinting and mug shots. Failure to comply with the appearance notice can result in an arrest warrant and further charges.

Release by police

Police officers have a number of options to release an accused subsequent to their arrest but without having to attend court for a bail hearing.

Summons

A police officer can release the person charging the person, with the intention to subsequently serve a summons (as described above).

Appearance notice

A police officer can issue an appearance notice as described above.

Promise to appear

The officer in charge of the place the accused is being held in custody can issue a promise to appear. This is very similar to an appearance notice.

Recognizance

Recognizances are described in more detail below. The maximum amount of a recognizance entered into before an officer in charge is $500 (CAD) with no sureties (parties similar to co-signers on a loan). This can be paid in cash (refundable if the accused complies with the terms of the recognizance), but alternatively a "no cash" recognizance can be used - in this case the accused is not required to put up any money up front but is liable for the amount of the recognizance if (s)he fails to comply with the terms.

Undertaking to an officer in charge

The accused can enter into an undertaking to an officer in charge to abide by certain conditions while they are on a release. An undertaking is entered into in addition to any other type of release before an officer in charge. An undertaking can have one or more of the following conditions:

• to remain within a territorial jurisdiction,
• to notify the officer of any change of address, employment, or occupation,
• to abstain from communicating directly or indirectly with certain individuals,
• to abstain from attending certain locations,
• to deposit their passport,
• to abstain from possessing any firearm and to surrender any firearms licences,
• to report at certain times to the police,
• to abstain from the consumption of alcohol or other intoxicating substances,
• to abstain from the consumption of drugs except in accordance with a medical prescription, and
• to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any complainant or witness.

Failure to comply with the undertaking is a criminal offence.

Bail hearing

Timing

If an accused is not released by the police, he or she must be brought before a provincial court judge or a justice of the peace without unreasonable delay and in any event within 24 hours of the arrest, unless a justice is not available in that amount of time in which case the accused must be brought before a justice as soon as possible. If the offence is one found in section 469 of the Criminal Code of Canada (murder, treason, etc.), the accused is automatically detained so that he or she can be dealt with as described below. Otherwise, the judge or justice of the peace can hear the bail hearing.

The hearing may be adjourned by the defence, the prosecutor, or the court. However, if the defence does not consent to the adjournment, the bail hearing can only be adjourned up to 3 days. If the bail hearing is adjourned, the court may order the accused not to communicate with certain individuals while he or she is detained.

Justification for detention

In Canada, there are only three grounds for detaining an accused prior to sentence. They are commonly referred to as primary grounds, secondary grounds, and tertiary grounds.

Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court. Considerations include the accused's criminal history, their behaviour in the matter before the court, their connections (or lack of) with the jurisdiction, and the type of offences before the court.

Secondary grounds refers to whether detention is necessary for the protection or safety of the public. This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice.

Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice, and is generally reserved for very serious offences. The four factors to consider are:

• the apparent strength of the prosecutor's case,
• the seriousness of the offence,
• the circumstances surrounding the offence, including whether a firearm was used, and
• if found guilty, whether the accused is liable to a potentially lengthy term of imprisonment, or if a firearm was involved, faces a minimum of 3 year of jail.

Burden of proof

Generally, the prosecutor has the burden to show on a balance of probabilities why the accused should be detained. However, the accused has the burden to show why he or she should be released if they are charged with the following offences:

• an offence committed while at large on a release,
• an offence committed at the direction or in association with a criminal organization,
• a terrorism offence,
• certain offences under the Security of Information Act,
• a weapons trafficking offence,
• certain violent offences (including attempted murder) where a firearm was used,
• an offence that involved a firearm, crossbow, restricted weapon, or prohibited weapon while under a weapons prohibition,
• any offence if the accused is not an ordinary resident of Canada,
• an offence of failing to comply with release conditions or failing to attend court, or
• certain offences under the Controlled Drugs and Substances Act that carry the possibility of a life sentence.

The prosecutor is not required to show cause why an accused should be detained, and may consent to the release of an accused. Similarly, the accused may concede that the prosecutor can show cause (or if the accused has the burden of proof, indicate they do want to show cause why they should be released) and consent to their detention.

Prior to 2010, it was not uncommon for accused criminals, particularly in cases where there was a strong likelihood of conviction, to consent to their own detention. This was because it had become customary for judges to grant double time credit and even triple time credit for time served prior to sentencing. Amendments to the Criminal Code that took effect in 2010 greatly reduced the discretion of judges to offer credit for time served in remand in excess of the actual time served. Only credit in equivalent to time and a half is now permitted, and even then only in extraordinary circumstances. As a result, defendants are now much less willing to consent to detention, and Crown prosecutors are less willing to consent to the release of the accused.

If an accused is ordered detained, the court may order that they not communicate with certain individuals while they are in custody awaiting their trial and sentencing.

Evidence

The standard of evidence in a bail hearing is trustworthy and credible, and can include hearsay. This can include a summary of the alleged offence and any witness statements. The court is allowed to consider other offences the accused has been charged with but is still awaiting trial for.

As with all other criminal proceedings, it is optional for the accused to testify. If the accused does testify, he or she cannot be cross-examined on the offence before the court unless the accused testifies about the offence itself. This only applies to the offence the accused is charged with and not with other offences committed by the accused. The rule does not apply to any other witnesses in the hearing.

Types of release

If the court is satisfied that the accused should be released, there are a number of options available:

Undertaking

A basic undertaking only requires the accused to appear in court as directed by the undertaking. The court may also impose further conditions as described below. Failure to comply with the undertaking is a criminal offence.

Recognizance without sureties and without deposit

A recognizance requires an accused to follow certain conditions with a financial penalty if they are not followed. If there are no conditions, then the recognizance just requires the accused to attend court as directed by the recognizance. The recognizance can be for any amount the court determines would be appropriate based on all of the circumstances (the accused's financial situation, the circumstances of the offence, the likelihood of the recognizance not being complied with, etc.).

If the recognizance is not complied with, a judge can order the accused to be liable to the Crown for an amount up to the amount of the recognizance. The accused can also face further criminal charges.

Recognizance with sureties and without deposit

The court may require that sureties (persons similar to co-signers on a loan) be added to the recognizance. Sureties are jointly and severally liable for the amount of the recognizance. The court has the ability to name specific individuals as sureties.

Sureties are allowed to apply to the court to be relieved of their obligations. This will usually result in the accused being arrested and held for a new bail hearing.

Recognizance with deposit

If the accused is not an ordinary resident of the province where they are in custody, or they do not ordinarily reside within 200 kilometres of where they are in custody, the court can require that they deposit a sum of money or valuable security, which they will not get back until their matter is disposed of. Sureties are an option in this situation.

If the accused is an ordinary resident, they can make a deposit instead of requiring sureties, provided the prosecutor consents to such an arrangement.

Conditions of release

If the court releases a person on bail, they can require the accused to comply with one or more of the following conditions:

• report at a certain time to the police,
• remain within the territorial jurisdiction,
• notify the police of any change of address, employment, or occupation,
• abstain from communicating, directly or indirectly with certain individuals,
• refrain from attending certain locations,
• deposit their passport,
• comply with any other condition the court considers necessary to ensure the safety of any victim or witness, and
• comply with any other reasonable condition the court considers desirable.

If the accused is charged with one of the following offences, the court is required to prohibit the accused from possessing any firearm, crossbow, restricted weapon, or prohibited weapon, unless the court considers that such an order is not required:

• an offence with the commission of violence, attempted violence, or the threat of violence,
• a terrorism offence,
• criminal harassment,
• intimidation of a justice system participant (victim, witness, etc.),
• certain offences under the Controlled Drugs and Substances Act,
• an offence that involves a firearm, crossbow, restricted weapon, or prohibited weapon, or
• certain offences under the Security of Information Act.

If the accused is charged with one of the following offences, the court is required to consider whether conditions are necessary to protect the victim or witnesses of the offence:

• a terrorism offence,
• criminal harassment,
• intimidation of justice system participant,
• an offence with the commission of violence, attempted violence, or the threat of violence, or
• certain offences under the Security of Information Act.

Publication bans

Either party can request a publication ban on all evidence and reasons given in a bail hearing until the charges are resolved. If the publication ban is requested by the defence it is automatic.

For a period of time the automatic publication ban was found to infringe Section Two of the Canadian Charter of Rights and Freedoms#Freedom of expression by the Court of Appeal for Ontario. As a remedy, the Court found that the automatic publication ban should be limited to when there is a possibility of a jury trial, and will expire if that possibility is eliminated at some point in the proceedings. However, this case was overturned on a subsequent appeal to the Supreme Court of Canada which held that while the provision infringed s. 2 of the Charter it should be upheld under Section One of the Canadian Charter of Rights and Freedoms.

Revocation of bail

If a police officer has reasonable grounds that an accused has or is about to contravene any type of release (including summons and appearance notices), they can arrest the individual. If the prosecutor proves a contravention of the conditions on a balance of probabilities the court must revoke the original release order. If the court revokes the release order a new hearing is held and the accused bears the onus on a balance of probabilities to show cause why detention is not necessary. Bail can also be revoked by the trial judge under section 524 of the Criminal Code of Canada on application by the Crown or, in limited circumstances, on the court's own motion. Where the accused is released on a surety bond, the surety may apply to the court for an order to be removed. The consequence results in the accused being arrested and facing a bail hearing as though he or she has just been arrested for the original offence.

Bail variation

A recognizance or undertaking can be varied at any time with the written consent of the prosecutor.

An order for release or detention can be vacated and replaced without a review or appeal being required in the following situations:

• by the trial judge,
• after completion of the preliminary hearing (except for an offence found under section 469 of the Criminal Code of Canada), or
• with the consent of the defence and prosecution.

Bail review

Application for review

If and when the court makes an order for the release or detention of the accused, or varies such an order, either party can bring an application to a superior court judge to review the order, and if necessary vacate and replace it. Once a decision is made, both parties must wait 30 days before being allowed to make another application.

Automatic review

If an accused is ordered detained (either at a bail hearing or after a bail review application), an automatic bail review is made by a superior court judge after a prescribed period of time. For summary conviction offence, the period is 30 days from the date the detention order was made. For indictable offences, the period is 90 days from the date the detention order was made. Besides being able to vacate and replace the order, the judge can also make directions to expedite the accused's trial.

Enforcement of automatic review

Since s. 525, the automatic review provision, is addressed the institution head holding the accused, an accused cannot invoke the provision directly. If the institution head has not brought the accused before a superior court of criminal jurisdiction, the accused may apply for either a writ of habeas corpus or mandamus to compel the institution head to comply with the provision. A breach of this provision by an institution head will not lead to a finding of lack of jurisdiction over the accused.

Awkward wording of legislation

In the second edition of the Law of Bail in Canada, Professor Trotter (as he was then) noted a few inconsistencies in the bail review provisions. Under s. 520 and 521, a bail review is made to a "judge" against the decision of a "justice." Yet s. 520 and 521 permit successive reviews and specifically authorizes the admission into evidence any transcripts of previous bail reviews. Courts have resolved this dispute by resorting to the principles of statutory interpretation. It was found that the intent of Parliament was to permit either the accused or the Crown to seek review of a decision of a justice or judge as a successive bail review.

Also the definition of "judge" under Part XV (Compelling Appearance) is not consistent across Canada. For all jurisdictions, "judge" includes a "judge of a superior court of criminal jurisdiction." However, for a few jurisdictions the definition of "judge" also includes a "judge of the court of appeal." Therefore, in some jurisdictions an accused or the Crown has the option of seeking review of bail decision by a judge of the court of appeal. Jurisdictions with no appeal to the court of appeal may only seek review of the decision by either a successive application or by direct appeal to the Supreme Court of Canada under section 40 of the Supreme Court Act.

Section 469 offences

Offences found in section 469 of the Criminal Code of Canada (murder, treason, etc.) are heard differently. The bail hearing is before a superior court judge, and the accused has the burden of proof. A review is heard by the Court of Appeal.

Youth

Generally, bail hearings for youth have the same way of proceeding as adult bail hearings, with a few exceptions.

Courts are prohibited from detaining youth prior to sentencing as a substitute for appropriate child protection, mental health, or other social measures.

Detention for secondary ground purposes (i.e. protection or safety of the public) is presumed to be unnecessary unless the young person faces the possibility of jail time for the offence. Specifically, one or more of the following factors must exist for the presumption not to apply:

• the offence is violent offence,
• the youth has failed to comply with non-custodial sentences (which is different from not complying with bail orders), or
• an adult could face 2 or more years of prison, and the youth has a pattern of findings of guilt.

If the youth would normally be detained by the court after an adult bail hearing, the court must then inquire as to whether there is a responsible person who can exercise control over the young person (and that the young person is willing to be placed in that person's care). If so, both the responsible person and the young person enter into an undertaking with conditions.

It is a criminal offence for the young person to not comply with the undertaking. Unlike a surety, the responsible person faces no financial penalty. Instead, the responsible person also faces a criminal offence if they wilfully fail to comply with the undertaking.

See also

• Criminal law of Canada
• Canadian Criminal Procedure and Practice
• “Bail or Jail: Release or Retention Pending Trial Under Military Justice in Canada”

References

Further reading

• Trotter, Gary (2013). Understanding bail in Canada. Irwin Law. ISBN 978-1-55221-355-1. OCLC 864394554.