The basic rule: release is the starting point
Everyone charged with an offence has the right not to be denied reasonable bail without just cause (Charter s. 11(e)). In most cases the Crown must show why you should be kept in custody, and the court must choose the least restrictive form of release that works: the Supreme Court calls this the “ladder principle”.
The Criminal Code also requires the court to give particular attention to the circumstances of Indigenous accused and of vulnerable groups who are over-represented in custody (s. 493.1 and 493.2).
The three grounds for keeping someone in custody
- Primary ground: detention is needed to make sure you come to court.
- Secondary ground: detention is needed to protect the public, including victims and witnesses, because there is a substantial likelihood you would commit an offence or interfere with justice.
- Tertiary ground: detention is needed to keep public confidence in the justice system, given the strength of the case, the seriousness of the offence and the possible sentence.
Reverse onus
For some charges you must show why you should be released. Examples include an indictable offence allegedly committed while already on release, certain firearm and weapons offences, trafficking or importing serious drugs, some repeat violent offences, and intimate partner violence when there is a previous conviction for it. Murder bail can only be decided by a superior court judge.
Sureties
A surety is a person, often a relative or friend, who promises the court to supervise you and make sure you follow your conditions. The court checks that the surety is suitable: no criminal record that matters, a stable home, and an understanding of the role. A surety may pledge an amount of money, which can be lost if you break the conditions.
A surety who can no longer supervise you can apply to be relieved of the obligation, and you may then be taken back into custody until a new surety or a new release order is in place.
Common conditions
- Keep the peace and be of good behaviour, and attend court.
- Live at an approved address, sometimes with a curfew or house arrest.
- No contact with named people and no going to certain places.
- No weapons; sometimes no alcohol or drugs.
Breaching bail and bail reviews
Breaking a release condition is a separate criminal offence (s. 145), and it can lead to a new bail hearing under a reverse onus. If the court refuses bail or sets conditions you cannot meet, your lawyer can ask a superior court judge to review the decision (s. 520). The Crown can also seek a review (s. 521).
Questions people ask
How long does it take to get a bail hearing?
The accused must be brought before a justice within 24 hours of arrest. The hearing itself can be adjourned, for example to bring in a surety, but the accused can ask that it proceed without delay; any adjournment longer than three days needs the accused’s consent.
Do you have to pay money to get bail in Canada?
Usually not upfront. Canadian bail is mostly based on promises: you or your surety may promise to pay a set amount if you break the conditions. A cash deposit is required only in limited cases, such as for people who live far away.
Can a surety be someone with a criminal record?
Sometimes, but it weighs against them. The court looks at whether the person can actually supervise you and will report breaches; a recent or related record usually makes someone unsuitable.
What if I break a bail condition?
You can be arrested and charged with failure to comply with a release order, and the court may cancel your release. On the new charge you will often have to show why you should be released again.
Sources
- Criminal Code, ss. 493 to 529 (judicial interim release)
- Canadian Charter of Rights and Freedoms, s. 11(e)
- R. v. Antic, 2017 SCC 27 (the ladder principle)
General information on Canadian law, not legal advice for your situation. Rules change and differ between provinces: speak to a lawyer about your case.