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If you were charged with a crime and not released, you will have a bail hearing. It is important to understand the factors that the court considers when deciding whether to release you and what conditions to impose. This can help you prepare to argue for your release.
If are in police custody, you must be brought before a Justice of the Peace (JP) or a judge within 24 hours or as soon as reasonably possible. The judge or JP will release you unless the prosecutor does not agree to your release.
If the prosecutor does not agree to your release, there will be a bail hearing. These are sometimes called show cause hearings. You can have a lawyer represent you at this hearing. In most court locations, Legal Aid will represent anyone at their bail hearing regardless of their income. Most bail hearings take place in Provincial Court. Bail hearings for a few serious offences, such as murder, go to the Court of King's Bench.
At the hearing, the prosecutor must show that there is a good reason to keep you in custody. They will tell the judge about the crime that you are accused of committing and any criminal record you have. You or your lawyer can tell the judge about your personal circumstances, including information about:
The judge or JP will consider:
When making decisions about release, judges must pay particular attention to the circumstances of those who are Indigenous or from a vulnerable population that is over-represented in the justice system.
The judge or JP must release you unless they believe that:
Even if the judge or JP has reservations about your release, if conditions can address those concerns, you should be released on conditions.
In some cases, the prosecutor does not have to show why the accused person should be kept in jail. In these situations, the accused person must argue for their release. This happens if the accused person is not a resident of Canada. This also happens if the accused is charged with murder or with an indictable offence while on bail for another serious offence. It also happens if the accused is charged with trafficking in illegal drugs. In these cases, and a few other situations, the accused must satisfy the judge that it is safe to release them.
The prosecutor must show that the conditions they are asking for are necessary and why less severe conditions are not appropriate.
At the end of the bail hearing, the JP or judge decides whether to release you. If you are released after a bail hearing, you may have to agree to pay a sum of money if you do not appear in court as required. You may be required to actually deposit the sum of money with the court. The judge or JP has to prefer a promise to pay over you actually depositing money if you have assets that could be seized if you fail to appear.
The judge or JP can also impose conditions on your release such as:
If you promise to pay money, you may have to get a surety. A judge or JP can only require this if less severe release conditions would not be enough. A surety is someone who promises to pay money to the court if you do not do the things you promised. If you breach a condition of your release, the surety may not have to pay anything if they can convince the judge that they took all reasonable steps to get you to comply.
If you have to pay money to the court, you cannot use a personal cheque. The court only accepts:
If you do not have any money:
If you pay money to the court, the money is kept by the court to help make sure you go to court on all your court dates. The money is paid back to you if you make all your court appearances as required.
After you are released on bail, you must:
If you do not go to court on all your court dates or you break your promises:
If any of these things happen, it will be up to you to convince the court that you should be released on bail again.
After the bail hearing, whether you are released or not, your case will be adjourned to a later date for what is called your first appearance. Earlier court dates are available for people who are held in custody while they are waiting for court.
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