Bail in Canada refers to the release (or detention) of a person charged with a criminal offence prior to being tried in court or sentenced.
That right is implemented by the Criminal Code, which provides several ways for a person to be released prior to a court appearance.
Prior to Confederation in 1867, the individual colonies each had the authority to enact local laws relating to bail.
[5] This provision was subsequently subject to much judicial interpretation, as it made the granting of bail highly discretionary for each justice of the peace.
[7] This provision was subsequently used by the courts to rule, for the first time, that the Extradition Act included a right to bail.
[9] This act placed the onus for justifying an accused's detention on the prosecutor, gave police new powers to release persons charged with an offence prior to their coming before a justice, and created detailed procedures for bail reviews.
Section 11(e) of the Charter stipulated that "any person charged with an offence has the right ... not to be denied reasonable bail without just cause".
Another important reform occurred in R v Zora, a 2020 Supreme Court ruling, which found that breaching bail has a subjective, not objective, mens rea.
If the judge or justice of the peace is satisfied grounds exist, they can issue a summons requiring an accused to appear in court on a given date.
[16] The officer who arrests the person can release them on an appearance notice or with the intention to apply to a justice of the peace for a summons, as described above.
The release can include a requirement that the person appear for photographing and fingerprinting under the Identification of Criminals Act.
The justice of the peace must issue a warrant of committal, authorising detention until dealt with by a superior court trial judge.
[27] The hearing may be adjourned by the justice, or on the request of the arrested person or the Crown prosecutor or police officer.
Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice, and is generally reserved for very serious offences.
The four factors to consider are: Generally, the Crown prosecutor has the burden to show on a balance of probabilities why the accused should be detained.
While the onus of proof is normally on the Crown prosecutor, the accused has the burden to show why they should be released, also known as "reverse onus" if they are charged with the following offences:[30] If an accused is ordered detained, the court may order that they not communicate with certain individuals while they are in custody awaiting their trial and sentencing.
[33] The court may require that sureties (persons similar to co-signers on a loan) be added to the recognizance.
[35] The court can impose conditions on release, requiring the accused to comply with one or more of the following conditions: If the accused is charged with one of the following offences, the court is required to prohibit the accused from possessing any firearm, crossbow, restricted weapon, or prohibited weapon, unless the court considers that such an order is not required: If the accused is charged with one of the following offences, the court is required to consider whether conditions are necessary to protect the victim or witnesses of the offence: Either party can request a publication ban on all evidence and reasons given in a release hearing until the charges are resolved.
[36] The provision for a mandatory publication ban has been challenged as infringing the constitutional guarantee of freedom of expression, but the Supreme Court of Canada upheld the provision, on the basis that its purpose was to protect the accused's right to a fair trial, which is also a constitutional guarantee.
If the prosecutor proves a contravention of the conditions, the justice must revoke the original release order.
If the justice revokes the release order, a new hearing is held and the accused bears the onus on to show cause why detention is not necessary.
[25] Any type of release can also be revoked by the trial judge on application by the Crown or, in limited circumstances, on the court's own motion.
Besides being able to vacate and replace the order, the judge can also make directions to expedite the accused's trial.
[26] However, instead of conducting a hearing, the justice of the peace is required to issue a warrant of committal, to last until the person is dealt with according to law.
Instead, the responsible person also faces a criminal offence if they wilfully fail to comply with the undertaking.