When someone is arrested and charged with a criminal offence in Canada, the next critical step is often a bail hearing. This process determines whether the accused will be released from custody while awaiting trial or kept in jail. Understanding the bail hearing process can be essential for accused individuals and their families, especially when facing serious charges like assault, theft, or drug offences.
This guide provides a detailed overview of the bail hearing process in Canada, including what to expect, how to prepare, and the role of legal representation.
What Is a Bail Hearing?
A bail hearing is a court proceeding where a judge or justice of the peace decides if a person who has been charged with a criminal offence should be released from custody or held in detention while awaiting trial. The decision is based on several legal criteria under the Criminal Code of Canada, primarily Section 515.
A bail hearing typically happens within 24 hours of an arrest, though delays can occur if the defence needs time to prepare.
When Is a Bail Hearing Required?
Not every arrest leads to a bail hearing. In some cases, the police may release the accused on a promise to appear, undertaking, or recognizance without requiring a formal court proceeding. However, a bail hearing is required when:
- The accused is charged with a serious offence
- The police believe the person may not appear for court
- There is a risk to public safety
- The accused has breached bail in the past
Who Has the Burden of Proof?
In most cases, the Crown prosecutor must justify why the accused should be kept in custody. However, there are exceptions where the burden shifts to the defence. This is known as a reverse onus situation and applies when:
- The accused is already on bail for another offence
- The charge involves a firearm or a drug trafficking offence
- The accused is not a Canadian resident
- The offence is listed under specific reverse onus provisions in the Criminal Code
Key Factors the Court Considers
When deciding whether to grant bail, the court must consider three main grounds:
1. Primary Ground: Will the Accused Attend Court?
The court wants to be sure the accused will show up for all future court dates. Past failures to appear or flight risk indicators can weigh against release.
2. Secondary Ground: Is the Public at Risk?
The court evaluates whether releasing the accused would pose a danger to the public. This includes any likelihood of committing further offences, particularly violent ones.
3. Tertiary Ground: Is Detention Necessary to Maintain Confidence in the Justice System?
This ground is often used in high-profile or extremely serious cases. If public confidence in the administration of justice would be eroded by release—such as in cases involving murder or crimes against children—bail may be denied even if the other grounds are satisfied.
What Happens During a Bail Hearing?
A bail hearing is a formal proceeding, and the process generally unfolds as follows:
Step 1: Disclosure
The Crown provides a summary of the allegations and any relevant evidence to the defence. This may happen right before the hearing.
Step 2: The Crown Presents Its Case
The prosecutor may call witnesses (often a police officer) to testify about the circumstances of the arrest, the accused’s criminal record, and any risk factors.
Step 3: The Defence Presents Its Plan
The defence lawyer presents a bail plan, which may include:
- A suitable surety (someone who promises to supervise the accused and ensure they follow bail conditions)
- A stable place to live
- Willingness to comply with conditions like curfews, no-contact orders, or counselling
The defence may also call the proposed surety to testify.
Step 4: The Judge or Justice Decides
After both sides present their arguments, the court will either grant bail with conditions or order detention. The decision may be made immediately or reserved for a later time.
Possible Outcomes of a Bail Hearing
- Release on Undertaking or Recognizance: The accused is released with or without a surety and must comply with specific conditions.
- Release on Bail with Surety: A surety agrees to supervise the accused and can be held financially liable if the accused breaches conditions.
- Detention Order: The accused remains in custody until the trial or another bail review hearing is held.
Can You Appeal a Bail Decision?
Yes. If bail is denied, the accused can request a bail review in the Superior Court of Justice. This typically requires new information or an argument that the lower court made a legal error. These applications can take time and often require the assistance of a criminal defence lawyer.
The Importance of Legal Representation
A bail hearing is not just a formality—it is a crucial part of the criminal process that can dramatically affect how your case unfolds. Pre-trial custody can negatively impact your ability to defend yourself and create personal and professional hardships.
Hiring a criminal defence lawyer who understands the bail process is essential. A skilled lawyer will:
- Advocate for your release
- Help prepare a strong bail plan
- Cross-examine witnesses effectively
- Protect your rights throughout the process
What to Do If a Loved One Is in Custody
If someone you care about is in custody awaiting a bail hearing:
- Contact a lawyer immediately
- Be prepared to act as a surety if asked
- Gather documents (proof of residence, employment letters, etc.) to support their release plan
- Avoid discussing the case with police or posting about it online
Schedule a Free Consultation with Lichtman Law
If you or a loved one is facing a bail hearing, time is critical. The earlier you consult a criminal defence lawyer, the better your chances of release. Lichtman Law has extensive experience handling bail hearings across Ontario and can help you prepare the strongest case for release possible.
Schedule your free consultation today and take the first step toward protecting your freedom and future.