When someone is arrested and brought before a Justice for a bail hearing, the Crown can seek detention on up to three separate grounds. The first two, risk of flight and risk of reoffending, are relatively straightforward. The third is different. It is broader and more abstract than the other two.
Tertiary grounds for bail denial ask a fundamentally different question: not what the accused might do if released, but how the public would react to seeing them released. It is a test rooted in the concept of public confidence in the justice system and it can result in detention even where the other two grounds fall short.
What Are Tertiary Grounds?
Tertiary grounds are codified in Section 515(10)(c) of the Criminal Code of Canada. Under this provision, a Justice may order that an accused remain in custody if detention is necessary to preserve public confidence in the administration of justice.
Section 515(10)(c) — Criminal Code of Canada
Detention is justified where it is necessary to maintain confidence in the administration of justice, taking into account all the circumstances, including the apparent strength of the Crown’s case, the gravity of the offence, the circumstances surrounding its commission, and the potential sentence upon conviction.
Unlike the primary ground (will the accused show up for court?) or the secondary ground (will they commit further offences?), tertiary grounds shift the focus entirely outward. The question becomes: if a reasonable, informed member of the public learned that this person had been released, would they lose faith in the justice system?
This is deliberately a high bar. Canadian courts have consistently held that detention on tertiary grounds should not be routine. At the same time, in the right circumstances, particularly those involving serious or violent offences, it can be the most decisive factor at a bail hearing.
The Four Factors the Court Considers
The Criminal Code identifies four specific factors to guide the analysis. These are not exhaustive, a court can weigh other circumstances, but they are the primary lens through which tertiary grounds are evaluated. Importantly, a single factor alone may be sufficient to justify detention.
The Apparent Strength of the Crown’s Case
At a bail hearing, the court does not decide guilt or innocence; that comes later at trial. But the Justice does take a preliminary look at how compelling the evidence appears at this early stage.
Where the Crown’s evidence is strong, this factor weighs toward detention. Where it is thin or uncertain, it favours release.
A case supported by clear surveillance footage and a recorded confession will appear far stronger than one relying on a single eyewitness whose account is inconsistent or disputed. The stronger the case looks at the bail stage, the more this factor supports keeping the accused in custody.
The Gravity of the Offence
This factor examines how serious the alleged crime is in the broader context of Canadian criminal law. As a general rule, the more serious the offence, the greater the weight placed on this consideration.
Allegations involving significant violence, grave harm to others, or serious impacts on the community tend to weigh heavily toward detention. A minor theft charge will rarely engage this factor meaningfully. But offences such as aggravated assault, armed robbery, or homicide regularly raise legitimate concerns about whether a reasonable person would accept that bail is appropriate.
The logic here is not that serious allegations prove guilt; they do not. Rather, it is that the public’s confidence in the system may be shaken if someone facing a very grave charge walks out the door shortly after being charged.
Circumstances Surrounding the Offence (Including Use of a Firearm)
This factor drills down into how the offence was allegedly carried out. The court looks for aggravating circumstances that elevate the concern beyond the charge itself.
The Criminal Code specifically calls out the use of a firearm as a relevant circumstance, and for good reason. An offence committed with a weapon, in a public place, against a vulnerable victim, or in a manner showing deliberate planning and coordination will be viewed far more seriously than one that was impulsive or involved minimal risk to others.
An accused charged with assault who is alleged to have used a loaded firearm in a crowded area, or who is alleged to have planned the attack in advance, presents a factual picture that is much more likely to erode public confidence than a situation involving a single spontaneous incident with no weapons involved.
Potential Length of Imprisonment Upon Conviction
Finally, the court considers the sentence the accused could face if found guilty. Where a conviction could result in a lengthy prison term, or where the law imposes mandatory minimum sentences, this factor tends to support detention.
Certain firearms offences in Canada carry mandatory minimum sentences of three years or more. For charges of that nature, the potential sentence alone can carry significant weight under the tertiary ground. The underlying rationale is that a reasonable, informed person may struggle to understand why someone potentially facing years behind bars has been released pending trial without any adequate safeguards in place.
No single factor automatically produces a result. A Justice is required to weigh all relevant circumstances holistically. In some cases, one overwhelmingly strong factor, such as an extremely grave offence, may be sufficient on its own. In others, several factors of moderate weight combine to tip the balance. This balancing exercise is precisely why experienced advocacy at the bail hearing stage matters so much.
At a Glance: Cases Where Tertiary Grounds Are Weak vs. Strong
| Factor | 🟢 Favours Release | 🔴 Favours Detention |
|---|---|---|
| Strength of Crown’s Case | Single inconsistent eyewitness; weak or circumstantial evidence | Surveillance footage, confession, or multiple corroborating witnesses |
| Gravity of Offence | Minor theft, mischief, or non-violent property offence | Aggravated assault, armed robbery, sexual violence, or homicide |
| Circumstances | Spontaneous, no weapons, no vulnerable victims | Firearm used, public location, planned attack, vulnerable victim |
| Potential Sentence | Fine, conditional sentence, or short custodial term | Lengthy imprisonment or mandatory minimum of 3+ years |
What Tertiary Grounds Do NOT Mean
⚠️ This Is Not Pre-Trial Punishment
One of the most important points to understand about tertiary grounds is what they are not designed to do. Denying bail on tertiary grounds is not meant to punish the accused before they have had a trial or been found guilty of anything.
The accused is presumed innocent. The purpose of tertiary grounds is narrower: to preserve trust in the justice system as a whole. Courts are required to ask whether a reasonable, fully informed member of the public, aware of the actual facts and the applicable law, would view release as bringing the administration of justice into disrepute.
This distinction matters enormously in practice. A well-prepared defence lawyer can challenge the Crown’s reliance on tertiary grounds by demonstrating that the factors, properly analyzed, do not rise to the level required to justify detention, and that an informed public, understanding the full picture, would not lose confidence if the accused were released on appropriate conditions.
How a Criminal Defence Lawyer Fights Tertiary Grounds
Tertiary grounds may feel abstract, but challenging them is very much a concrete legal exercise. A seasoned defence lawyer approaches this ground by carefully dissecting each of the four factors and presenting the court with a full, balanced picture, not just the Crown’s version of events.
Effective strategies often include:
- Contesting the strength of the Crown’s evidence — pointing to weaknesses, inconsistencies, or gaps that suggest the case is not as airtight as the Crown portrays
- Contextualizing the alleged offence — providing information that reduces the apparent gravity or reframes the circumstances in a way that supports release
- Proposing a robust release plan — including appropriate sureties, meaningful conditions such as house arrest, curfews, or no-contact orders, and supervision that demonstrates the accused poses no real threat to public confidence
- Addressing the sentence exposure — where mandatory minimums apply, showing that all factors together do not compel detention
Bail hearings are time-sensitive and high-stakes. The decisions made in those early hours and days, including the quality of the proposed release plan and the strength of the legal argument, can have lasting consequences for the accused’s ability to maintain employment, family relationships, and the ability to properly instruct their lawyer for trial.
Even in cases involving serious charges where tertiary grounds are engaged, bail is not automatically off the table. Every situation is unique, and a skilled defence lawyer who knows how to navigate bail hearings strategically can make a significant difference in the outcome, even in difficult cases.
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Legal Disclaimer: The content of this article is provided for general informational purposes only and does not constitute legal advice. It does not create a lawyer-client relationship. Criminal law is highly fact-specific, and outcomes vary depending on individual circumstances. If you are facing criminal charges or a bail hearing, please consult a qualified criminal defence lawyer for advice tailored to your situation.