Section 11(e) of The Canadian Charter of Rights and Freedoms guarantees the right not to be detained without a reasonable cause. If you are arrested by police and held in custody, you are entitled to a Bail Hearing.
Bail, or Judicial Interim Release, refers to the release of an accused person prior to their trial (or in some cases, following their trial but before sentencing).
Most offences have what is known as a “presumption of release”. This means that, with the exception of certain types of crimes, there is a presumption that an accused should be released on an undertaking without conditions. This does not mean that you are guaranteed release, or release without conditions, but instead, it is the Crown prosecutor’s burden to prove why conditions or continued detention is necessary.
Grounds for Refusing Bail
Even when an offence has a presumption of release, ongoing detention prior to trial may be justified on primary, secondary or tertiary grounds.
Primary grounds is used when detention is necessary to ensure that an accused person attends court. Relevant factors include whether there is a history of failure to appear in court, criminal flight, and even if there is an incentive for the accused to flee the country before trial.
Secondary grounds is where detention is necessary for the protection or safety of the public. While public safety is a key consideration, there must be a substantial likelihood that the safety of the public is in danger. Relevant considerations include whether the accused was on bail when charged, the nature of previous convictions if present, mental illness and addiction as well as the nature of the charge.
Finally, tertiary grounds is where detention is deemed necessary to maintain confidence in the administration of justice. This is a highly controversial ground and has many factors, including the circumstances of the offence, length of possible imprisonment and gravity.
Conditions of Bail
Bail conditions are tailored to the specific circumstances of the accused, and the Court has considerable discretion in ordering conditions. With that said, until conviction at trial or a guilty plea, you are considered innocent. This means the courts are still restricted on what type of conditions are available.
Common conditions include:
No-contact conditions between the accused and the alleged victim, witnesses or co-accused;
