Bail hearings

The purpose of a bail hearing is not to determine the guilt or innocence of the accused, but rather to determine whether the accused is entitled to a release pending trial. Therefore, the circumstances relating to the offence are not important for a bail hearing, but rather other factors are taken into consideration.

Burden of Proof 

When a person has been arrested by the police and has not been released by either the arresting police officer or the officer in charge, s.503 of the Criminal Code requires that the person be taken before a justice of the peace within 24 hours of the arrest, or as soon as possible.

When the accused person appears before a justice of the peace, a show case hearing or bail hearing is held and subject to applicable portions of s.515 (6), the onus at the bail hearing is on the Crown to show why the accused should not be released from custody pending the trial. Following the hearing, the accused will either be released (under certain conditions) or will be detained in custody until the time of the trial or resolution. The accused may be released under the following sections: (s.515(1)), or on a recognizance with conditions, sureties or cash deposits (s.515(2)).

Section s.515(2) delineates the hierarchy of conditions as they relate to the basis of release:

· On an undertaking with such conditions as the justice directs;

· On a recognizance without sureties, in such amount and with such conditions, if any, as the justice directs, but with no cash deposit;

· With the prosecutor’s consent, on a recognizance without sureties and with or without conditions, with a cash deposit;

· Where the accused person is not ordinarily resident in the province or does not reside within 200 km or the place where he is custody, on a recognizance with or without sureties and with or without conditions, with a cash deposit.

The crown has the onus for demonstrating the need of any of the above conditions, as s. 513 (3) states that the justice of the peace shall not make any of the above orders unless the crown shows why an order under the immediately preceding paragraph should not be made.

Grounds for Detention:

Section 515(10) states:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Flight Risk and Ensuring Court Attendance:

The first ground for detention is whether the accused will be a flight risk, and that the accused will attend court. This includes a constellation of factors including: residence, fixed place of abode, employment, marital status, family connection, character witnesses, facts relating to the allegations of the offence, and past history.

Secondary Ground Concerns:

Section 515 (10)(b) directs the court, in determining whether the detention is required in the interest of public safety, to have regard ‘to all circumstances’, including the ‘substantial likelihood’ of the accused re-offending, or interfering with the administration of justice (ie. threatening witnesses or tampering with evidence). 

Public Safety Grounds:

Public safety grounds are not restricted to the public’s physical safety, and include protection for property offences and society’s general interests at large. This section usually pertains to more heinous crimes that directly affect the psyche of society at large.

Evidence at the Bail Hearing:

The standard at bail hearings is the ‘credible or trustworthy’ standard, s.518 (1) also sets out a ‘relevancy’ standard. This standard has the result of relaxing the formal rules regarding presentation of evidence as applicable to trials. The crown is not permitted to question the accused about the offence he is alleged to have committed; other witnesses may be asked to testify about the circumstances of the offence.

Common Bail Hearing Conditions:

The following are commonly used bail release conditions:

· No contact with the complainant, witnesses or co-accused

· Abstain from alcohol

· Respect Curfews

· Distance restriction from a specified address

· Reside at a specific address

· Attend counseling or treatment

· Surrender a passport

· Report to a police station

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