Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and  Turner Valley.

In the Canadian criminal justice system, bail is a process that allows accused persons to be released from custody while they await trial. Bail ensures that individuals are not held in custody unnecessarily and that the public is protected from potential harm. However, the bail process can be complex and challenging, and it is important for individuals to understand their rights and responsibilities.

This blog will provide an overview of the bail process in Canada, including the principles of bail, the types of bail, and recent changes to the bail process. It will also discuss some of the challenges facing the bail system and potential solutions to address these challenges.

Principles of Bail

The principles of bail in Canada are rooted in the presumption of innocence and the right to liberty. The Criminal Code of Canada states that every person charged with an offence has the right to be released on bail, unless there is just cause to do otherwise. This means that the burden is on the Crown to show why an accused person should not be released on bail.

The principles of bail also recognize the importance of protecting the public from potential harm. This means that in some cases, an accused person may be denied bail if they pose a significant risk to public safety. However, the decision to deny bail must be based on evidence and not on speculation or assumptions. Learn more.

Bail Process

The bail process in Canada involves several stages, each with its own legal and procedural requirements. The process begins with the accused’s arrest, at which point they may be held in custody or released on bail. Learn more.

If the accused is held in custody, they must be brought before a judge or justice of the peace as soon as possible. At this hearing, the judge or justice of the peace will determine whether the accused should be released on bail, and if so, under what conditions.

The bail hearing is a crucial stage in the bail process, as it determines whether the accused will be released from custody or remain in jail until their trial. During the bail hearing, the judge or justice of the peace will consider several factors, including the nature and seriousness of the offence, the accused’s criminal history, their ties to the community, and the likelihood that they will attend court if released on bail.

If the judge or justice of the peace decides to grant bail, they will set out the conditions of the bail order. These conditions may include reporting to a bail supervisor, residing at a specified address, avoiding contact with certain individuals, and refraining from alcohol or drugs. The accused must agree to these conditions before they can be released on bail.

If the accused is unable to meet the conditions of their bail order, they may be returned to custody. In some cases, the accused may be able to apply to vary the conditions of their bail order or to have it revoked entirely.

Role of the Courts

The courts play a central role in the bail process in Canada. Judges and justices of the peace are responsible for determining whether an accused person should be released on bail and under what conditions. The courts must balance the rights of the accused against the need to protect the public and maintain confidence in the administration of justice.

In making their decision, judges and justices of the peace will consider a range of factors, including the seriousness of the offence, the strength of the evidence against the accused, and the accused’s criminal history. They will also consider the accused’s ties to the community, their employment status, and their ability to provide a surety.

A surety is a person who agrees to take responsibility for the accused while they are released on bail. The surety may be required to provide a financial guarantee or to supervise the accused’s compliance with their bail conditions. The surety must be someone who is willing and able to take on this responsibility, and who is not connected to the offence in any way.

Types of Bail

There are two types of bail in Canada: police bail and judicial interim release.

Police bail is granted by a police officer at the time of arrest. This type of bail is typically used for minor offences and allows an accused person to be released from custody with conditions, such as a promise to appear in court.

Judicial interim release is granted by a judge or justice of the peace after a bail hearing. This type of bail is used for more serious offences and requires a bail hearing to determine whether an accused person should be released from custody and what conditions should be imposed.

Conditions of Bail

When an accused person is released on bail, they must comply with certain conditions. These conditions are designed to ensure that the accused person appears in court and does not commit any further offences while they are on bail.

Common conditions of bail include:

• A curfew
• A requirement to report to a bail supervisor
• A prohibition on possessing weapons
• A requirement to stay away from certain people or places
• A prohibition on using drugs or alcohol

If an accused person violates their bail conditions, they may be arrested and brought back into custody. Learn more.

Changes to the Bail Process

In 2019, the Canadian government introduced Bill C-75, which made several changes to the bail process. One of the key changes was the introduction of a “reverse onus” provision for certain offences. This means that for certain serious offences, the accused person must show why they should be released on bail, rather than the Crown having to show why they should be held in custody. This provision only applies to offences that carry a maximum sentence of life imprisonment and involve a firearm, violence, or terrorism.

Another significant change under Bill C-75 was the introduction of “bail supervision,” which allows for greater monitoring of accused persons who are released on bail. This includes the use of electronic monitoring, regular check-ins with a bail supervisor, and drug or alcohol testing.

These changes were made in response to concerns about the overuse of pretrial detention in Canada. The government recognized that too many accused persons were being held in custody for too long, which was leading to overcrowding in jails and a violation of their rights.

Challenges in the Bail Process

Despite these changes, the Canadian bail process still faces several challenges. One of the main challenges is the issue of access to justice. Many accused persons are unable to afford a lawyer to represent them during the bail process, which can lead to unfair outcomes.

Another challenge is the overuse of pretrial detention. While the changes to the bail process under Bill C-75 were intended to reduce the number of accused persons being held in custody, there is still a significant number of individuals who are held in jail while they await trial. This can have serious consequences, including loss of employment, housing, and custody of children.

There are also concerns about the use of risk assessment tools in the bail process. These tools are designed to predict an accused person’s likelihood of committing a crime or failing to appear in court. However, there is evidence to suggest that these tools may be biased against certain groups, such as Indigenous people and racialized communities.

Finally, there are concerns about the conditions of bail that are imposed on accused persons. While conditions are necessary to ensure that accused persons do not commit further offences or fail to appear in court, some of these conditions may be overly restrictive and difficult to comply with. This can lead to accused persons being brought back into custody for minor violations of their bail conditions.

Potential Solutions

To address these challenges, there are several potential solutions that could be considered.

One solution is to provide greater access to legal aid for accused persons who cannot afford a lawyer. This would ensure that all accused persons have access to legal representation during the bail process and would help to level the playing field.

Another solution is to invest in alternatives to pretrial detention, such as community supervision programs or electronic monitoring. These programs would allow accused persons to be released from custody while they await trial, while still ensuring public safety.

There is also a need to address the issue of bias in risk assessment tools. This could be done by ensuring that these tools are subject to rigorous testing and validation, and by providing training to justice system actors on how to interpret and use these tools in a fair and unbiased manner.

Finally, there is a need to review and revise the conditions of bail that are imposed on accused persons. This could include limiting the number of conditions that can be imposed, ensuring that conditions are necessary and proportionate, and providing accused persons with the support they need to comply with their conditions.

Conclusion

Bail is an important part of the Canadian criminal justice system, as it allows accused persons to be released from custody while they await trial. However, the bail process can be complex and challenging, and there are several issues that need to be addressed to ensure that the process is fair and just.

By providing greater access to legal aid, investing in alternatives to pretrial detention, addressing bias in risk assessment tools, and reviewing and revising the conditions of bail, the Canadian criminal justice system can ensure that accused persons are treated fairly and that public safety is protected.

Bail law in Canada is complex and multifaceted, requiring careful consideration of the legal and procedural requirements involved in the bail process. The principles and objectives of bail, including the presumption of innocence and the protection of the public, are critical components of the Canadian criminal justice system.

While bail is considered a right for individuals accused of a crime, it is not an absolute right. The decision to grant bail is based on a careful assessment of several factors, including the nature of the offence, the accused’s criminal history, and the likelihood that they will attend court if released on bail.

The courts play a crucial role in determining whether an accused person should be released on bail, with judges and justices of the peace balancing the rights of the accused against the need to protect the public and maintain confidence in the administration of justice. Bail law in Canada is designed to ensure that accused persons are treated fairly and that the justice system operates in a manner that is both transparent and accountable.

In recent years, there have been calls for reforms to the bail system in Canada, particularly in light of concerns about racial and economic disparities in access to bail. Some have called for a more robust system of pre-trial supervision, including the use of electronic monitoring, as an alternative to detention.

Ultimately, the bail system in Canada is an essential component of the criminal justice system, allowing individuals accused of a crime to be released from custody while awaiting trial. It is a complex and ever-evolving area of law that requires ongoing attention and scrutiny to ensure that it operates in a manner that is fair, transparent, and just.

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Cory Wilson is a criminal defence lawyer based in Calgary and serving all of Alberta. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.