VIEWS: 9 PAGES: 2 POSTED ON: 9/27/2011
To bail or not to BAIL? by Milena Celap O ver time, you've probably heard news stories about alleged offenders until the conclusion of the trial, unless a higher court later decides otherwise. out those conditions. Sureties are discussed further in this article. Primary Grounds Another situation in which primary getting out on bail after apparently grounds are used to detain an ac- committing heinous crimes. Unless If the court does not have confidence cused is when there appears to be a you have familiarity with the law on that the accused would abide by bail risk that the accused will take flight. bail, you probably wondered how they conditions, it may order detention on Such concerns may arise when the could have been set free. Yet, if primary grounds. Such is often the accused has ties in another jurisdic- you're a family member or friend of case where there is a past record of tion (e.g., the accused has family one of those accused, you are proba- convictions for failing to appear in and/or a home in another province or bly relieved when bail is granted and court or failing to comply with previous country). Another situation that some- devastated when it has not been bail conditions, probation orders, or times causes concern is when there is granted. Here is a quick guide to community supervision orders. How- a criminal record for remaining at large Canada's system of bail or “judicial ever, where previous breaches hap- while the accused was supposed to be interim release”. pened a long time ago and where the in the custody of authority. First, it is important to understand why accused has recently been leading a Secondary Grounds bail exists in the first place. Have you more stable life free of alcohol, sub- heard of the wrongfully accused, the stance abuse or criminal activity, bail If the court is concerned that the ac- acquitted and the otherwise fortunate may nevertheless be granted. cused person may re-offend while out accused persons who escape criminal on bail, the court may order detention In circumstances where the court is on secondary grounds. Concerns conviction? How about the convicted not completely confident in the ac- about re-offending generally stem offender who nonetheless receives a sentence that does not involve spend- cused's ability to comply with condi- from a criminal record, lack of suffi- ing time in custody? First, an accused tions, the court may still order the cient surety, lack of suitability for the person is presumed to be innocent accused to be released, but will likely bail program, and any addictions that unless proven guilty. Therefore, it is require that measures be taken to may be associated with the accused's only in certain circumstances that an promote compliance or cooperation lack of compliance with the law (e.g., accused person's liberty should be with bail conditions. One of those if the accused goes on drinking binges restricted. These circumstances are measures is having the accused re- or is addicted to non-prescription referred to as "grounds for detention" port regularly to a bail supervision drugs, and those addictive behaviours or reasons for detention. The Criminal program (if it exists in a particular juris- are associated with repeat offences or Code of Canada sets out primary, diction) or to a police detachment. inability to obey court orders). secondary and tertiary grounds for Another is to approve of a surety pro- To answer to those concerns, the detention. In other words, if the court posed by the accused who would court often imposes restrictions de- is satisfied that the accused ought to carry the responsibility of ensuring signed to prevent the accused from be detained on primary, secondary or that the accused person attends at contacting anyone with whom the tertiary grounds, or some combination court when required to do so and court does not wish them to have con- of those grounds, then the accused obeys the other clauses in the recog- tact (e.g., the alleged victim and would be ordered to remain in custody nizance of bail, the document that sets Crown witnesses). 5 The court may also impose conditions Once in court, the Crown may consent to try to convince the court that the preventing the accused from attending to the accused’s release on certain accused should be released into the at certain locations. For example, if it conditions. In other cases, the Crown community. There are many such situ- is a convenience store robbery allega- opposes the release of the accused ations. For example, an offence alleg- tion that has led to the accused’s ar- and a “contested show cause hearing” ing involvement in a criminal rest, then the court would impose a is held. organization or committed for the ben- condition that the accused not attend efit of a criminal organization will re- at that store. Such a condition is often verse the onus, so to speak, and shift difficult in “domestic” cases where the Immigration bail is the burden to the defence to show accused is alleged to have committed based on a different cause why the accused should be re- a crime against his or her spouse and leased. set of laws, but is ordered by the bail court to not Indictable offences are criminal of- communicate with his or her spouse similar principles. fences of a more serious nature that and to not attend at an address where tend to attract more severe sentences the spouse is likely to be. (e.g., robbery, murder, manslaughter, Justices of the Peace or Judges, de- conspiracy to commit an indictable One of the things the court tries to pending upon the jurisdiction, may offence, etc.). control on the basis of secondary hold bail hearings and determine grounds is contact and communica- whether the accused person shall be The Criminal Code of Canada pro- tion with the complainants or victims detained or released. vides the rules for bail hearings, bail relating to the charges. This is typical reviews and appeals of detention or- in "domestic" (relationship) cases. In As discussed above, one of the ways ders. Either the Crown Attorney's Of- addition, the accused is often required in which the court can re-assure itself fice or the accused person may to report to a police station on a regu- that the accused will follow conditions appeal a decision respecting bail is- lar basis as a sort of reminder of the of release (“recognizance of bail”) is sues to a higher court. seriousness of bail conditions. by approving of a surety. A surety is like a guarantor. The surety must be If there is a material change in circum- Tertiary Grounds aware of the charges and still must be stances, meaning a significant change confident that the accused person will that may alter the decision to grant Sometimes the court is concerned that bail, either the Crown Attorney's Office obey bail conditions if released, and releasing the alleged offender would or the accused person may bring a must be in a position to supervise the reduce the confidence of the public in accused person to the extent that the bail review application. This is brought the justice system and orders deten- court requires. to a higher court than the court that tion on "tertiary grounds". Cases in initially heard the show cause hearing which detention may be ordered on The surety must also have sufficient (bail hearing). that basis are where there is potential assets, enough to pay the court if it is for a lengthy jail term if the accused is later proven that the accused Conclusion convicted. The courts also consider breached one or more bail conditions. The law of bail and procedural require- the gravity of the offence, the circum- This monetary obligation is a way of ments for bail hearings are complex stances surrounding the offence, the ensuring that sureties take their super- topics and entire books have been strength of the Crown Attorney's case visory obligations seriously. Generally written about them. This article has against the accused, and any other speaking, the more serious the al- introduced some main concepts. It is leged crime, the higher the monetary probably obvious to you that the court factors that would allow the court to risk. In addition, the surety must be has an important job in determining reach a proper decision. By way of willing to call the police if the accused bail. The court must consider the example, an alleged serial killer is less breaches or is about to breach any of rights of the accused person and that likely to be released on bail than the bail conditions. the accused person is entitled to rea- someone who is alleged to have com- mitted a less serious criminal offence, Generally, it is the Crown who must sonable bail. The court must balance because it might offend the public con- demonstrate to the court why the ac- those rights with those of community fidence in the administration of the cused person ought to be detained. In safety and ensuring the integrity of the justice system to allow someone so that case it is said that it is a “Crown administration of justice. potentially dangerous out on the onus”. This is often the case for first From now on, when you hear that an streets. time accused persons, accused per- accused person has been released on sons with no outstanding charges, and Procedure bail following serious criminal allega- persons who were not arrested while tions, you will have a better under- The Criminal Code provides that any- subject to another court order. standing of the kinds of considerations one who has been arrested has the However, sometimes that burden the courts face on a daily basis. It may right to appear before a Justice (or shifts to the accused person. It is then appear easy, but the courts have a Justice of the Peace) within 24 hours said that the case involves a “reverse tough job to do when deciding whether or as soon as possible. onus”, meaning that the defence has to grant bail. Milena Celap is a lawyer, author, and lecturer. She is also the founder and editor of Law for Everyone. For more information on criminal law and procedure, visit her website: www.celap.com. 6
"To bail or not to"