The information below is presented to assist an accused person’s friends and family understand bail and the role and responsibilities of a surety. The information is applicable to most criminal offences. However, it does not apply to offences that are listed in section 469 of the Criminal Code, which includes murder.
Bail is a very complicated area of criminal law. The rules and procedures change depending on what offence has been charged and on the stage of the criminal proceedings. If you have been charged with a criminal offence and require assistance with bail, please contact a lawyer at Pringle Chivers Sparks Teskey to discuss your case. Our sound representation and experience will ensure the best possible outcome of your case.
What is bail?
Bail refers to the release of a person before trial or resolution of charges. The rules and procedures of bail, or judicial interim release, are set out in the Criminal Code. The Criminal Code provisions are informed by the common law and the Canadian Charter of Rights and Freedoms.
If the police choose to not release a person accused of a criminal offence, that person must be brought before a justice of the peace within 24 hours of being arrested. At that time, release can be addressed with an “over the phone” bail hearing before a justice of the peace or can be adjourned to be dealt with at the next available court appearance. You are entitled to hire a lawyer to assist you with this bail hearing, whether over the phone or in court. Also, Legal Aid Alberta now provides duty counsel services for bail hearings held before a justice of the peace.
At the bail hearing, the justice of the peace or the judge in court will determine whether or not to release the person from custody:
- If the person is released, the person is said to be “granted judicial interim release” or “granted bail”; or
- If the person is not released, they are said to be “bail denied.”
The Charter guarantees that a person will not be denied reasonable bail without just cause. This means that the starting point for bail is that a person should be released without conditions. The burden is on the Crown Prosecutor to demonstrate why a more restrictive form of release is justified in the circumstances.
However, the Criminal Code specifies a number of “reverse onus” offences. When the onus is reversed, the burden is placed on the accused person to demonstrate why he or she should be released. In other words, the starting point is that the person should be held in custody. Some common “reverse onus” situations include:
- If the offence was committed while the person was on release for another indictable offence;
- If a person failed to attend court, comply with an appearance notice or to comply with a promise to appear while that person was on release for another matter;
- If the offence involved the use of a firearm;
- If the offence is alleged to be related to weapons trafficking, terrorism or a criminal organization; and
- If the person does not ordinarily reside in Canada;
What are the possible outcomes of a bail hearing?
There are many possible outcomes for an accused person after a bail hearing. As discussed, the starting point in most cases is that a person should be released without conditions. This is the least restrictive possibility. A more restrictive release will only be ordered if it is justified in the circumstances. The possible outcomes, from least to most restrictive, are as follows:
- An undertaking to attend court without any conditions;
- An undertaking to attend court with conditions;
- A recognizance with conditions. The recognizance may require a cash deposit, sureties or both; and
- Bail denied. The accused person will remain in custody.
When can bail be denied?
Bail will be denied if a justice finds the accused’s detention is necessary on one or more of the following grounds:
- Primary grounds – The detention is necessary to ensure the person’s attendance at court. The justice will consider the person’s ties to the community, the availability of sureties and whether the person has prior convictions for failing to attend court.
- Secondary grounds – The detention is necessary for the protection or safety of the public. If it is determined that there is a “substantial likelihood” that a person will commit a criminal offence or interfere with the administration of justice if released, bail may be denied. The justice will consider a person’s criminal record including any convictions for similar offences and for breaching bail and probation conditions.
- Tertiary grounds – The detention is necessary to maintain confidence in the administration of justice. The justice may consider the entire circumstances, including the strength of the Crown Prosecutor’s case, the gravity of the offence, the circumstances surrounding the commission of the offence and the length of imprisonment a person may face if convicted. Detention based purely on the tertiary ground is rare and would typically only arise in a very serious case.
In most situations, the burden is on the Crown Prosecutor to demonstrate why detention is justified on a balance of probabilities. For “reverse onus” offences, the burden is on the accused person to show why, on a balance of probabilities, the person’s release is justified. The “balance of probabilities” is a legal standard that refers to something being “more likely than not” or “more than a 50% chance.” Therefore, in the bail context, this may mean that if it is “more likely than not” that a person will not attend court, bail may be denied on the primary grounds.
What are conditions?
As discussed, the starting position is that a person should be released without conditions. However, after considering the three grounds above, a justice may have concerns about releasing a person from custody. Therefore, he or she may make an order that an accused person comply with conditions in order to alleviate these concerns. For example, if there is a concern that a person may leave the province if they are released, a justice may make it a condition of that person’s release that he or she remain in Alberta.
The Criminal Code grants a justice significant discretion in making conditions of release. Some common conditions include:
- Keep the peace and be of good behaviour and appear before court when required to do so;
- Report to a bail supervisor;
- Remain within a certain geographical area;
- Notify a bail supervisor of any changes of address or employment;
- An order not to communicate directly or indirectly with a person (usually a complainant, co-accused, or witness);
- Abide by a curfew; and
- And order not to consume any intoxicating substances.
If a person is accused of committing certain weapons offences or if the person is alleged to have used a “firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance” in the commission of an offence, then the justice must make a condition that the person not possess those things.
The justice may also make an order that a person comply with any other reasonable conditions that the justice considers desirable. Similarly, if there are concerns about the safety and security of any victims or witnesses, a justice may make any reasonable order to protect these people.
Can conditions be changed?
There are many ways to change bail conditions. However, the method for doing so depends on the offence alleged and the current stage of the proceedings. Generally speaking, there are two ways in which bail conditions can be changed:
- If the Crown Prosecutor consents to reopen bail and change the bail conditions; and
- If a bail review is requested by the Crown Prosecutor or the defence. These hearings usually occur in the Court King’s Bench. Both parties will make arguments about whether or not the conditions should be changed.
What is a recognizance?
In some circumstances, the justice at a bail hearing may determine that a recognizance is justified. A recognizance is the promise to pay a debt to the Crown if the accused person fails to attend court or fails to comply with the conditions of his or her release. The recognizance can be either:
- A “cash” recognizance, which requires the deposit of money. The accused will person not be released until the total amount has been deposited. If the accused person attends court and complies with his or her conditions, the deposit will be returned at the conclusion of all criminal matters. Otherwise, the deposit – or a portion of it – is forfeited to the Crown ; or
- A “no cash” recognizance does not require a deposit to be made. If the accused person fails to attend court or fails to comply with his or her bail conditions, the debt becomes payable to the Crown.
Whether or not a deposit is ordered depends on the circumstances of the case. The amount of the recognizance is set at level that is high enough to deter someone from choosing not to attend court or from breaching his or her conditions of release. However, the amount is not set so high so that it is unpayable. An unreasonably high cash deposit cannot be used as an alternative way of keeping someone in custody.
What is a surety?
A surety agrees to supervise an accused person if they are released. The surety essentially becomes the accused person’s “jailor” in the community and is responsible for ensuring that:
- The accused person attends court; and
- The accused person abides by the conditions of his or her release.
A surety can be any adult that is close to the accused person and is usually a family member or a friend. The justice at a bail hearing will consider a number of factors in determining whether the proposed surety is appropriate. The following considerations will weigh in favour of the proposed surety being approved:
- If the proposed surety has known the accused person a long time;
- If the relationship between the proposed surety and the accused person is close, like the relationship between a parent and child, siblings or good friends;
- If the proposed surety and the accused person live together or live very close to each other; and
- If there is anything else about the relationship that suggests that the proposed surety will be able to effectively supervise the accused person.
The following people are usually not permitted to be sureties:
- An accomplice;
- A person with prior convictions for serious criminal offences;
- A person who is on bail themselves or is in custody;
- A person who is a surety for someone else; and
- A person who does not normally reside in the province
A surety may be asked to sign an affidavit swearing that they understand the nature of their role and that they will uphold their duties as a surety. Oftentimes, the court will want to know if a proposed surety has received independent legal advice about their decision to act as a surety.
A surety cannot accept payment for performing his or her duties.
What if I want to withdraw as a surety?
There are two ways in which a person can withdraw as a surety:
- The surety can make a request to the court in writing. The court will then make an order for the arrest of the accused person. Once the person has been arrested, the court will vacate the recognizance and discharge the surety; or
- The surety can bring the accused person to court. The court will then take custody of the person.
It is also possible to substitute another person as a surety. In order to do so, the surety must follow the above procedure for withdrawing. After the surety has withdrawn, a new surety can be appointed.
Does the surety have to make a cash deposit?
The surety is required to enter into a debt with Crown through a recognizance (see above). By making this promise, the surety signals to the court that they are committed to supervising the accused person. Whether or not a cash deposit or some other surety attached to property is ordered depends on the circumstances. A deposit will only be ordered if the Crown Prosecutor is able to show that it is justified in the circumstances or if it is agreed to by the Crown and Defence.
If the accused person fails to attend court or fails to comply with the conditions of his or her release, the deposit may be forfeited to the Crown. The surety will have the opportunity at a special to explain why the deposit should not be forfeited. If, on the other hand, the surety successfully supervises the accused person, any cash deposit will be returned once all of the accused person’s criminal matters have concluded.
How do I pay a cash deposit?
If a cash deposit is ordered, it can usually be paid at a provincial courthouse or at the detention centre where the person is being held. In Edmonton, payments can be made at the Edmonton Bail Hearing Office located at:
Still have questions?
Bail is a complicated process that has many different rules and procedures. Different jurisdictions may have slightly different practices. Pringle Chivers Sparks Teskey is a law firm based in Edmonton, but our lawyers have considerable experience assisting clients with bail issues all over Alberta and western Canada. Please contact us, we are happy to help.