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Can Bail Be Denied in Canada?
The short answer is yes, in some cases, bail can be denied in Canada.
What is Bail and what Do Lawyers Mean when they use this Term?
In Canada, when criminal lawyers Calgary use the term bail, it is important to have a general understanding of what bail means. Bail or judicial interim release means an accused person has been arrested and charged with a criminal offence. However, this person is presumed innocent. Once a person has been charged with a criminal offence there must be a form of release unless the Court orders the person to be remanded into custody. The recognizance of bail or Form 11 Release Order is a court order allowing an accused to remain in the community under a set of conditions.
Everyone in Canada has the right not to be denied bail without just cause, as per section 11(e) of the Charter of Rights and Freedoms. When added to the presumption of the accused’s innocence until they plead guilty or are found guilty beyond a reasonable doubt under section 11(d) of the Charter, bail is supposed to be the rule and detention is the exception.
When a person has been arrested and charged with an offence the issue of release can occur in a number of ways. First, in some cases, the arresting officer may release the accused directly from the scene or station on an Appearance Notice with or without an Undertaking. If the arresting officer does not release the person, then a bail hearing will have to occur. A bail hearing can happen either in front of a Provincial Court Judge or a Justice of the Peace. Typically, the prosecutor bears the burden of showing cause why the judge should deny bail. However, there are certain cases where the accused and/or defence lawyer bears the legal burden of why he or she should be released. In this instance, this is referred to as a reverse onus.
What Happens at a Bail Hearing?
A prosecutor representing the Crown will review the accused’s file and decide if they will consent to let him or her out on bail or argue to convince the judge that the accused should remain in custody. The bail disclosure package typically contains a summary of the facts of the case prepared by the investigating officer(s) and the accused’s criminal record. Some of the factors a prosecutor will consider when deciding to consent to or oppose bail include:
- The type of charge and nature of the offence;
- The potential danger to society or the accused’s alleged victim;
- The likelihood that the accused will come to court when required;
- The accused’s previous criminal history, including convictions for violating bail or other court orders;
- The likelihood that the accused will commit another crime if released; and
- The impact on the administration of justice if the accused is released.
The Defence lawyer representing the accused in a bail hearing will typically present a release plan designed to address the Crown’s or the court’s concerns if the accused is released on bail. That plan will likely include the following:
- Where the accused will live
- Where the accused works or goes to school
- The accused’s ability and willingness to abide by any conditions the court imposes
- Any counselling or therapy the accused will participate in to address issues like substance abuse and or other issues alleged to contribute to the offence
- Who is available to supervise the accused to ensure they obey their bail conditions and go to court when they’re supposed to, i.e., who can act as a surety, if needed
The judge or justice of the peace will only grant bail if they are satisfied that the accused will come to court, follow their conditions, not break any other laws or be a danger to the community and that society would not lose confidence in the justice system if the accused were released given the circumstances of the case.
The judge or justice of the peace will place the accused on conditions as part of the release order which are designed (or supposed to be designed) to reduce any potential risk to the community or address the release concerns. The most common conditions include:
- An order not to consume or possess alcohol or drugs (intoxicating substances)
- An order not to contact the complainant or a co-accused
- A curfew
- An order not to possess weapons
If any of these conditions are breached, then the accused will face further criminal offence allegations and may be subjected to revocation of the bail. (This is commonly referred to as a “524 hearing”.)
In some circumstances, the release plan will include a surety. If a surety is needed, your lawyer needs to collect information in the form of an affidavit.
What is a Surety?
A surety is a person who agrees to supervise the accused and undertakes the following responsibilities:
- Make sure the accused comes to court on their scheduled court dates
- Monitoring the accused to ensure they follow all their bail conditions and don’t commit any criminal acts
- Calling the police if the accused disobeys any of the conditions.
The surety also agrees to pay an amount of money set by the court if the accused breaches their bail order. To be a surety, a person must:
- Know the accused
- Knows what the accused is charged with
- Be over 18 years of age
- Not have any involvement in the case
- Have some capability of supervising the accused
- Own some property such as a home, car, financial investments, etc.
If you are in custody and your lawyer needs to fight to get you out of jail, it is important to discuss any potential criminal history you have and to give your lawyer as many options as possible to create a robust release plan.
The lawyers at Alberta Legal are serious lawyers who defend serious allegations in court every single day. Contact us today if you need help with a bail hearing and a release plan.