Canadian criminal justice: Judicial interim release

After someone has been arrested for an offence, the criminal justice system must determine whether that person should be kept in custody or released from custody while they wait for the case to finish. This part of the Canadian criminal justice system is called “judicial interim release” or “bail.”

• In some cases, the police officer may release the defendant from the scene of the alleged offence or after bringing the defendant to the police station for processing – this is sometimes referred to as “police bail.” The police will normally give the defendant two documents – a “Promise to Appear,” which gives the defendant their first remand court date, and an “Undertaking,” which is an agreement to follow certain bail conditions.

• If the police officer does not release the defendant, then they must bring the defendant to court within twenty-four hours of the arrest. (However, there is no guarantee that a defendant will get an actual bail hearing within twenty-four hours and their case might be remanded to a later date for the bail hearing.)

In some cases, the prosecutor will agree that the defendant should be released from custody – this is often called a “consent release.” The defendant will be brought before the court and they will normally be released on a “Recognizance,” which is a court order that the person attend for their next court date and follow certain bail conditions.

If the prosecutor does not agree to release the defendant, then the court must schedule a judicial interim release hearing – this is often called a “bail hearing.” In a bail hearing, the prosecutor will lead some evidence about the alleged offence and argue that the defendant should be kept in custody while they wait for the case to finish. In response, defence counsel may lead evidence and argue that the defendant should be released from custody

If the justice of the peace or judge decides that the defendant should be released from custody, then they will normally be released on a "Recognizance," which, again, is a court order that the person attend for their next court date and follow certain bail conditions.

If the justice of the peace or judge decides that the defendant should be detained in custody, then the defendant can ask for a “bail review” in a higher level of court to argue that they should be released, either because the justice of the peace or judge made a mistake or because there has been a material change in circumstances. However, bail review hearings sometimes require several days or weeks to prepare and schedule.

Under subsection 11(e) of the Canadian Charter of Rights and Freedoms, every person charged with an offence has the right “not to be denied reasonable bail without just cause.” At each stage, the police, the prosecutor, or the court must consider three issues when deciding whether to release or detain a person who has been arrested. These three issues are called the “grounds for detention.”

• Under the “primary ground,” the system must consider whether it is necessary to keep the defendant in custody in order “to ensure his or her attendance in court in order to be dealt with according to law.” For example, if the defendant lives in another country, the system may be concerned that the defendant will not return for their trial.

• Under the “secondary ground,” the system must consider whether it is necessary to keep the defendant in custody “for the protection or safety of the public.” For example, if the defendant has a criminal record or outstanding charges, the system may be concerned that the defendant has shown a pattern of offending that endangers the public.

• Under the “tertiary ground,” the system must consider whether it is necessary to keep the defendant in custody in order “to maintain confidence in the administration of justice.” For example, if the defendant is charged with very serious offences with long sentences and the prosecution's case is overwhelmingly strong, the system may be concerned that the public would lose faith in the justice system to allow the defendant to live in the community before trial.

Whether a person is defendant on an Undertaking or on a Recognizance, they will normally be required to follow certain conditions.

• Sometimes, the conditions are simple and easy to follow. For example, a person might only be required to notify police if they change their address.

• Other times, the conditions are strict. For example, a person might be under a curfew or even house arrest.

• Unfortunately, in some situations, the conditions can be so difficult to follow that the person might be “set up to fail.” For example, an addict might be put on a condition to abstain from taking drugs, which may be almost impossible without also sending them to a treatment program.

In many cases, a person will only be released on a Recognizance if they have a surety – another person who comes to court and promises to help enforce the conditions in the community. Serving a surety is an important and serious commitment and the Ontario Ministry of the Attorney General has published information to help sureties understand their role and responsibilities.

Defendants can apply to vary their bail conditions if the original conditions need to be changed or if they need to change sureties. If the prosecutors agree to the changes, then the process normally does not require any further court dates. If the prosecutors do not agree the changes, then the defendant must hold a bail review hearing.

It is a criminal offence to fail to comply with bail conditions. If someone is arrested for allegedly breaching their bail conditions, then it becomes harder to get them released on bail a second time. Unfortunately, in many cases, people who win their trial for the main case end up with a criminal record because they breached their bail conditions.

Our lawyers can assist people at all stages of the bail process, from talking to police officers at the scene to arguing bail reviews. We help our clients find sureties or community supervision programs. We lobby the prosecutors and courts to release our clients on reasonable bail conditions so that they are not “set up to fail.” Our team is available to discuss possible bail variations with our clients.

Contact the lawyer of your choice for a free consultation.

This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at info@sjhdlaw.ca to propose any changes or updates.