When you have been charged with a criminal offence, such as a minor theft, it is possible that you may be released at the police station with a promise to appear and you may be subject to conditions on an undertaking. In other cases, such as drug trafficking, the police may decide that they will not release you at the station. This could be because of nature of the allegations, the fact that you have a criminal record or you breached previous release conditions. In those cases, the police must bring you before a justice within 24 hours of your detention. This means you are brought to the courthouse where an assistant Crown attorney will look at your file and determine whether they will consent to your release. If they do not consent to your release, then you will have a bail hearing where the justice will determine whether you should be released.
It is important to understand that the purpose of bail is not to determine whether an individual is guilty or not guilty of the charges. During the course of the bail hearing, a justice will hear information about the allegations an individual is facing, but the justice does not make a determination as to whether the allegations are true. In fact, the justice, to an extent, assumes that the allegations are true, and the question for the court is whether a person can and should be released on bail pending the completion of the case.
In Canada, we have what is considered an enlightened bail system, meaning that generally people charged with criminal offences are released on bail pending the outcome of their case. This does not mean that everyone is released on bail. The justice considers three different factors, or grounds, and may release a person or not depending on this analysis. The primary ground is concerned with whether the detention of a person is necessary to ensure that the person appears before the court at a later date; basically, is the accused person a flight risk. The secondary ground is concerned with whether a person’s detention is necessary for protection or safety of the public, including any witnesses or victims; in this case, the justice may look at whether an accused person has a criminal record. The final factor, called the tertiary ground, is concerned with whether detention is necessary to maintain confidence in the administration of justice. This ground can be quite broad and include a number of considerations such as the nature of the allegation and how strong the Crown’s case is.
Another important factor for the justice is the plan that is proposed and whether it addresses any of the concerns the court has on the grounds outlined above. In some cases, in order to obtain bail, a person may need to have someone acting as a surety for them (someone who ensures that the person follows the conditions of their release) or may have to pay cash in the form of deposit before they are released. In either case, the person will have a variety of conditions that they will have to follow.
Bail can be an important first step for a person, it can mean someone being released or in jail waiting for their trial, which could be many months away. In many cases, a person may have only one opportunity to be released on bail. It is important to retain counsel as quickly as possible when being charged with a criminal offence so that counsel can help develop a strong bail plan and can conduct negotiations with the assistant Crown attorney to secure an individual’s release. This is not a matter that a person should leave up to chance given that a person’s liberty is at stake.