To bail or not to

							   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).
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    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.
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