In Canada, if an accused person is not released by the police, he or she must be brought before a judge or a justice of the peace for a bail hearing within 24 hours of arrest or as soon as possible. A bail hearing is procedure where a justice determines if an accused person may be released from custody or if they should be detained until trial.

Canadian law guarantees the right not to be denied reasonable bail without just cause. Unlike some other jurisdictions, there are no bondsmen or bail insurance policies in Canada. Rather, Canada uses a surety-based system, in which someone who knows the accused agrees to supervise them upon release from custody, to ensure that they attend court and ensure that they abide by all the conditions of their release.

In determining whether an individual facing criminal charges should be released from jail, the judge or justice of the peace must be satisfied that the accused person will attend their court dates, that there is not a substantial likelihood that the accused would commit further criminal offences while released on bail and that the community would not be offended by the person's release given the serious nature of the offences alleged and the strength of the Crown’s case.

In most instances, the Crown attorney has the burden of demonstrating why the accused should not be released on bail. In some situations, it is the accused who must show why they should be released pending trial. Most commonly, the reverse onus provisions are triggered when an accused person is already on bail for other charges or is charged with a specific offence, such as offences involving weapons or drug trafficking. A reverse onus situation may also be triggered when the person charged does not ordinarily reside in Canada.

For a person charged with a criminal offence a bail hearing is a critical step in their defence. A person who is detained in custody will likely lose their job and may not be able to undertake treatment, counselling or other rehabilitative steps that may be critical to securing a favourable resolution. An accused person detained in custody may also be less able to assist their counsel in preparing a defence. Although there are provisions in the Criminal Code that allow for a detention order to be challenged, a bail review is an expensive and time consuming procedure. As such, it vitally important that the initial bail hearing be conducted by experienced counsel who can ensure the maximum chance of release.

Experienced counsel play several important roles at the bail hearing stage:

·        A lawyer may be able to speak with the police and negotiate your release from custody at the police station without the need for a bail hearing.

·        A lawyer can help ensure that your bail hearing proceeds as soon as possible and that you are not detained any longer than necessary.

·        If you are held for a bail hearing, your lawyer will negotiate with the police and crown attorney to try to secure reasonable conditions for your release. Without the assistance of effective counsel you may be subject to unnecessary and restrictive conditions of release, including house arrest, curfew, or impractical reporting conditions.

·        If a contested bail hearing is required, your lawyer will ensure that any proposed sureties are appropriate and will help prepare them for the types of questions that are likely to be asked at the hearing. It is extremely important that any proposed surety is well prepared before the hearing, as it could make the difference between your detention and your release. Your lawyer will work with your sureties to come up with a plan of release that likely to satisfy the court.

·        Your lawyer can help to secure assessments and treatment for alcohol or drugs, or arrange for some form of counselling. Not only will such treatment be valuable when it comes to resolving your case, but arranging a treatment plan in advance may be key to securing your release and avoiding a detention order.

·        If necessary, your lawyer can arrange to have witnesses attend court and provide evidence at the bail hearing. This can help to identify weaknesses in the Crown’s case and make your release from custody more likely.

Forms of Release

If the court is satisfied that the accused should be released, there are a number of options available, including an Undertaking, a Recognizance Without Sureties and Without Deposit, a Recognizance With Sureties and Without Deposit, and a Recognizance with Deposit.

A basic undertaking only requires the accused to appear in court as directed by the undertaking. An undertaking may also impose other conditions, such as to abstain from the consumption of alcohol or not to possess any weapons.

A recognizance requires an accused to follow certain conditions with a financial penalty if they are not followed. The recognizance can be for any amount the court determines would be appropriate based on all of the circumstances (the accused's financial situation, the circumstances of the offence, the likelihood of the recognizance not being complied with, etc.).

The court may require that sureties be added to the recognizance in order to help ensure compliance. Sureties are jointly and severally liable for the amount of the recognizance.

If the accused is not an ordinary resident of the province where they are in custody, or they do not ordinarily reside withint 200 kilometres of where they are in custody, the court can require that they deposit a sum of money or valuable security, which they will not get back until their matter is disposed of. Sureties are an option in this situation.

Sureties

A surety is a person who comes forward and agrees to supervise the accused if they are released from custody. A surety essentially acts as the “jailor” for the accused person, ensuring that they attend all court appearances and making sure that they abide by all of the conditions of their release, such a curfew, treatment, or requirements that they not communicate with certain persons or attend certain locations.

A surety may be required to pledge an amount of money to the Court to secure the release of an accused person. In most instances, the surety will not be required to deposit money with the court, but will need only to satisfy the court that they have the financial resources to satisfy the amount pledged should the accused person breach the conditions of their release. The amount of money required will depend upon the individual circumstances of each case, having regard to the nature of the charge, the criminal history of the accused and the individual circumstances of the surety.

In order to be allowed to act as a surety a person must be able to meet certain qualifications:

-         A surety must know the accused person and a relationship with the accused such that they will be able to effectively supervise and enforce the conditions of release.

-         A surety should not, as a general rule, have a criminal record.

-         A surety must not already be acting as a surety for someone else.

-         A surety must not have been involved in the criminal offence giving rise to the charges faced by an accused person.

-         A surety must be able to show that they have the financial resources to meet the amount of money that they are required to pledge.

Conditions that may be imposed by the court include the following:

• to remain within a territorial jurisdiction,
• to reside with their surety or at an address approved of by their surety
• to notify the officer of any change of address, employment, or occupation,
• to abstain from communicating directly or indirectly with certain individuals,
• to abstain from attending certain locations,
• to deposit their passport,
• to abstain from possessing any firearm and to surrender any firearms licenses,
• to report at certain times to the police,
• to abstain from the consumption of alcohol or other intoxicating substances,
• to abstain from the consumption of drugs except in accordance with a medical prescription, and

An accused person who fails to comply with the conditions of their bail may face additional criminal charges and may have a difficult time being granted bail. A surety who fails to adequately supervise an accused may be sued by the Crown for the full amount of money that they pledged.