After someone has been arrested for an offence, the criminal justice system must determine whether that person should be kept in custody or released from custody while they wait for the case to finish. This part of the Canadian criminal justice system is called “judicial interim release” or “bail.”
In some cases, the prosecutor will agree that the defendant should be released from custody – this is often called a “consent release.” The defendant will be brought before the court and they will normally be released on a “Recognizance,” which is a court order that the person attend for their next court date and follow certain bail conditions.
If the prosecutor does not agree to release the defendant, then the court must schedule a judicial interim release hearing – this is often called a “bail hearing.” In a bail hearing, the prosecutor will lead some evidence about the alleged offence and argue that the defendant should be kept in custody while they wait for the case to finish. In response, defence counsel may lead evidence and argue that the defendant should be released from custody
If the justice of the peace or judge decides that the defendant should be released from custody, then they will normally be released on a "Recognizance," which, again, is a court order that the person attend for their next court date and follow certain bail conditions.
If the justice of the peace or judge decides that the defendant should be detained in custody, then the defendant can ask for a “bail review” in a higher level of court to argue that they should be released, either because the justice of the peace or judge made a mistake or because there has been a material change in circumstances. However, bail review hearings sometimes require several days or weeks to prepare and schedule.
Under subsection 11(e) of the Canadian Charter of Rights and Freedoms, every person charged with an offence has the right “not to be denied reasonable bail without just cause.” At each stage, the police, the prosecutor, or the court must consider three issues when deciding whether to release or detain a person who has been arrested. These three issues are called the “grounds for detention.”
Whether a person is defendant on an Undertaking or on a Recognizance, they will normally be required to follow certain conditions.
In many cases, a person will only be released on a Recognizance if they have a surety – another person who comes to court and promises to help enforce the conditions in the community. Serving a surety is an important and serious commitment and the Ontario Ministry of the Attorney General has published information to help sureties understand their role and responsibilities.
Defendants can apply to vary their bail conditions if the original conditions need to be changed or if they need to change sureties. If the prosecutors agree to the changes, then the process normally does not require any further court dates. If the prosecutors do not agree the changes, then the defendant must hold a bail review hearing.
It is a criminal offence to fail to comply with bail conditions. If someone is arrested for allegedly breaching their bail conditions, then it becomes harder to get them released on bail a second time. Unfortunately, in many cases, people who win their trial for the main case end up with a criminal record because they breached their bail conditions.
Our lawyers can assist people at all stages of the bail process, from talking to police officers at the scene to arguing bail reviews. We help our clients find sureties or community supervision programs. We lobby the prosecutors and courts to release our clients on reasonable bail conditions so that they are not “set up to fail.” Our team is available to discuss possible bail variations with our clients.
Contact the lawyer of your choice for a free consultation.
This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at firstname.lastname@example.org to propose any changes or updates.