Bail

Judicial Interim Release (Bail)

Summary

Bail, also known as Judicial Interim Release, is a legal contract between the Crown and the accused or their surety, allowing the temporary release of the accused while their charges proceed through the court system. This arrangement enables the accused to remain in the community while awaiting trial.

Under s.11(e) of the Canadian Charter of Rights and Freedoms, bail has been established as a constitutional right, meaning every individual in Canada has the right to reasonable bail. This constitutional right ensures that denial of bail occurs only when necessary and with proper justification.

According to R v. Antic, 2017 SCC 27:

• The default position in most cases should be release, with an initial presumption that release is unconditional.
• Under s.515(1) of the Criminal Code, a judge or justice must release an individual without conditions unless the Crown can show cause to impose restrictions.

The Crown must justify any departure from unconditional release on one of the following grounds:

• Ensuring Attendance at Court: Guaranteeing the accused will appear for future court dates.
• Protecting Public Safety: Preventing any risk posed to the public.
• Maintaining Confidence in the Administration of Justice: Ensuring public trust in the judicial process.

For serious offences, such as murder, the burden of proof may shift to the accused, known as a "reverse onus."

Bail Hearings

If the Crown opposes release, the accused is entitled to a bail hearing or show cause hearing before a Justice of the Peace. If detained, the accused must appear in court within 24 hours of arrest.

During the bail hearing:

• The Crown and defence present evidence and submissions, and may propose conditions to address concerns.
• The Justice of the Peace may decide to release the accused, with or without conditions, or order detention until trial.

Factors Considered by the Justice of the Peace:

• Nature of the alleged offence
• Criminal history of the accused
• Ties to the community
• Likelihood of attending future court proceedings

Possible Bail Conditions:

• Supervision by a surety
• No contact with the alleged victim or witnesses
• Geographic restrictions
• Travel ban
• Reporting to a probation officer
• Financial bond or promise for compliance with conditions

If conditions are breached, the accused may face re-arrest and additional charges.

Bail Hearing Limitations: Only one bail hearing is permitted. If dissatisfied with the outcome, a bail review (see below) may be requested rather than a new hearing.

Bail Variation

A bail variation is a formal request to the Crown or Superior Court to modify or remove one or more bail conditions.

• Consent Variation: If the Crown agrees to the requested modification, it is submitted to a Justice of the Peace for approval. Any surety involved must also provide signed consent.
• If the Crown does not consent to the request, the accused may file a formal application for a bail review.

Bail Review

If bail is denied or the conditions are too restrictive, the accused may apply for a bail review every 30 days or more frequently with the Court’s permission. Alternatively, if circumstances change, the Crown and defence may agree to a revised order, allowing for court review and modification of the existing conditions.