What is the purpose of bail and why is it granted?

What is the purpose of bail and why is it granted?

When a person charged with a criminal offence is released from custody while awaiting trial, that is bail. That release may come with conditions they must follow. However, not everyone charged with a crime will receive bail.

According to the Ontario Court of Justice, bail is a court order that is officially referred to as a “release order.” The Court adds the accused may be required to obey certain conditions while in the community and “bail orders may require a money deposit or a bail surety.”

Why Not Keep All Accused Persons Detained?

Section 11(e) of the Charter of Rights and Freedoms states that anyone charged with a crime cannot “be denied reasonable bail without just cause.” That has been interpreted as meaning within 24 hours of their arrest if a judge or justice of the peace (JP) is available or as soon as one becomes available.

How Does the Bail Process Work in Ontario?

Bail hearings occur after an arrest, especially for serious crimes. This section provides a breakdown of Ontario's procedures for releasing or detaining individuals after charges have been laid.

Before making any bail decision, the Court must take into account whether the accused person is Indigenous or belongs to a vulnerable group that is overrepresented in the criminal justice system and faces disadvantages in obtaining bail due to systemic discrimination (for example, members of Black and racialized communities).

Understanding Bail Conditions and the “Ladder Principle”

To minimize the risks they pose to the public or specific individuals, people released on bail can be subject to conditions. Judges and JPs must follow the “ladder principle,” ie, imposing the least restrictive conditions necessary to address risks posed by the accused. The greater the risk that an accused poses to society, the more their freedom will be restricted (the higher they will go on the ladder). Examples of these conditions include:

• Attending court as directed.
• Reporting to a peace officer and notifying them of any change of address and employment.
• Remaining within a particular jurisdiction and surrendering their passport to prevent travel.
• Wearing electronic monitoring equipment such as an ankle bracelet.
• Giving up possession of any firearm or other weapon or explosive substance.
• Not communicating with any victim, witness or other person identified in the bail order.
• Providing the DNA National Data Bank with samples of genetic material and fingerprints.
• Refraining from attending any place specified in the order, such as where the offence occurred or where the complainant lives.
• Having a surety (a person who agrees to act as the accused’s supervisor while they are free in the community and a person the accused may be required to reside with).

What Role Does a Surety Play in Bail?

A surety ensures that the accused follows their bail conditions and attends every court appearance. If the accused violates the condition of their bail, the surety must inform police. Any Canadian citizen or permanent resident/landed immigrant 18 or older can apply to be a surety. Exceptions include those who are witnesses in the case, previous victims of the accused or those with criminal records. A surety must pledge an amount of money that they could lose if the accused fails to comply with the conditions of their bail. A surety’s responsibilities continue until the end of the case, which could be weeks, months or years away.

House Arrest as a Condition of Bail: What It Means

House arrest can be part of a bail order. That means the accused cannot leave their home except for specific reasons. They include school, medical and professional appointments, work, reporting to probation, religious services and shopping for medical supplies and food.

When Can Bail Be Denied? Examining “Reverse Onus” Cases

If a Crown prosecutor wants the accused person detained without bail they must demonstrate to the Court that there is just cause for that. This is referred to as the “onus.” However, if the accused is charged with a serious offence, the burden of proof shifts from the prosecution to the accused, meaning that the person charged must show why they should be granted bail. This is referred to as a “reverse onus.” Reverse onus offences in terms of bail include:

• Murder or attempted murder.
• An indictable offence committed while they were released on bail for another indictable offence.
• An indictable offence where the accused is not ordinarily a resident of Canada.
• Drug trafficking, importing or exporting.
• Weapons trafficking, possession of weapons for the purpose of trafficking, unauthorized import/export of a firearm or weapon.
• Unlawful possession of a loaded prohibited or restricted firearm or breaking and entering to steal a firearm.
• Offences alleged to have been committed with a firearm, such as sexual assault, kidnapping, hostage taking, robbery or extortion.
• Offences relating to criminal organizations and terrorism.
• An offence involving violence against an intimate partner where the accused has a prior conviction or discharge for an offence involving violence against an intimate partner.
• A serious offence (punishable by 10 years imprisonment or more) involving violence (used, threatened or attempted) and the use of a weapon where the accused was previously convicted (within the past five years) of an offence with the same criteria.

Who Oversees Bail in Canada’s Legal System?

Responsibility for Canada’s criminal justice system is shared between the provinces/territories and the federal government. The federal government enacts and updates criminal law and procedures including provisions that govern the law of bail. The provincial and territorial governments are responsible for prosecuting most criminal offences in their jurisdictions, including bail hearings.

Supreme Court Guidance on Bail: Key Precedents and Principles

The Supreme Court of Canada (SCC) has provided significant guidance on bail and relevant Charter considerations. In a 2015 decision it noted that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.”

A year later, a SCC decision stated that “save for exceptions, an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds.”

The SCC has ruled that there are three grounds under which bail may be denied. They are:

• Where detention is necessary to ensure attendance in court.
• Where detention is necessary for public safety, considering the likelihood of reoffending upon release or interference with the administration of justice.
• Where detention is necessary to maintain confidence in the administration of justice due to the gravity of the offence or the circumstances surrounding its commission.

Consequences of Breaching Bail Conditions in Canada

Anyone who breaches a bail condition could have their bail revoked. They may be detained and return to court to explain why they should not remain in custody until their trial. A bail breach can often result in a new criminal charge for that breach and make it more difficult for that person to receive bail in the future.

How Celine Dostaler Can Help You with Bail Hearings in Ottawa

I have represented numerous clients at bail hearings in Ottawa and surrounding areas. If you, a family member or a loved one is facing criminal charges, call me for a free consultation, in French or English.