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Bail FAQ

Getting Released On Bail

If your friend or family member has been arrested in the Ottawa area, contact criminal defence lawyer Brett McGarry to discuss getting them released on bail as quickly as possible. You likely have a number of questions about bail in Canada.

  • After an arrest, the police can release the person at the scene or from the police station. The police can also send a person charged with a crime to court for a bail hearing.

    When the police hold a person for bail, he or she must be brought before a court within 24 hours of arrest at the latest. A person will often be brought to bail court the morning after arrest.

    Once the accused arrives at the courthouse, the Crown prosecutor has the discretion to release the accused person on conditions, without the need for a contested bail hearing. A good criminal lawyer can negotiate with the Crown to increase the chances of a “consent release” and to obtain favourable bail conditions. A consent release is the fastest way of getting bail.

    If the prosecution does not consent, then a court must decide if the accused should be detained pending trial. This is referred to as a “bail hearing” or “show cause hearing”. A contested bail hearing usually takes place on the day the accused is first brought to court or at least within several days of the arrest.

    It is always a priority to get a person released as soon as possible. However, rushing into a bail hearing with a weak bail plan can result in a detention order and unnecessary time spent in custody while the ruling is appealed. It is therefore important to get professional advice to prepare a solid bail plan at an early time.

  • All crimes are eligible for bail in Canada. Everyone is presumed innocent, regardless of the strength of the Crown’s case. The Canadian Charter of Rights and Freedoms guarantees that “any person charged with an offence has the right not to be denied reasonable bail without just cause.”

    The ability of a judge to deny bail is confined to a narrow set of circumstances. Keeping a person in custody while awaiting trial is only justified where it is necessary:
    • To make sure the person shows up to court to deal with the charges.
    • To protect the public, victim, or a witness.
    • To maintain public confidence in the administration of justice.

    Usually the prosecution must show the court why an accused person should be detained without bail. For some offences the accused must show the court why they should be released. These “reverse onus” situations include: homicide, drug trafficking, many firearms offences, terrorism, and offences committed while a person is already on bail.

    In determining whether a person should be released on bail, the Crown and the court will be concerned with:
    • The strength of the plan of supervision and the suitability of the surety.
    • A prior criminal record.
    • A prior record of failing to comply with bail or court orders.
    • The seriousness of the offence.
    • The strength of the accused’s links to the local area.

  • On American television shows we often see people hiring bail bondsman or making large cash deposits with the court. This is not how bail works in Canada. Here, you can help “bail someone out” of jail by acting as a surety. Usually a large cash deposit is not necessary. You can also help by finding a suitable surety, if you are unable act as one yourself.
  • In Canada, a surety is a person who promises to take responsibility for a person accused of a crime. Being a surety is a serious responsibility. The job of a surety is to:
    • Make sure that the accused person obeys each condition of the bail order (also known as a recognizance). Conditions may require the accused person to report to the police and obey a curfew. The Court may order the accused to not possess weapons, drink alcohol and/or communicate directly or indirectly with the victim or witnesses.
    • Make sure the accused person comes to court on time and on the right dates.
    • Immediately report any breaches of the bail order to the police.

    A good surety has the following characteristics:
    • The surety is usually someone who is relatively close to the accused, often a parent, spouse, partner, relative or close friend.
    • The time and interest to make sure the accused is following the release conditions.
    • Confidence that the accused will obey the release conditions.
    • Confidence that the accused will honour the trust that the surety is placing in him or her.
    • No criminal convictions. (Although an isolated conviction from many years ago may not preclude someone from being a good surety).

    The role of a surety lasts until the charges are resolved by an acquittal or finding of guilt, which may take many months. You can end your role as a surety at any time by:
    • Bring the accused to the court personally and asking that you be relieved of your responsibilities.
    • Coming to the court and applying to the court to be relieved of your duties. The court will then issue an order for the arrest of the accused person.

  • In most cases, the surety does not deposit any money with the court. Instead, the surety signs a bond promising to pay the court a fixed amount of money if the accused breaches the bail order. Bail is not reserved for wealthy people or property owners. Rather, the amount of the bond must be sufficient to give the court confidence that the surety understands the seriousness of his or her obligations.

    The accused will also enter into a bond to ensure compliance with the bail conditions. In some cases, the accused will be required to deposit a sum of money to the court.

    If the accused is found guilty of breaching the bail order, the Crown may ask the court to make you pay the money you committed as a surety. An “estreatment” hearing will be scheduled. It will give you an opportunity to explain why you should not lose your money. The judge may order that you pay all, part, or none of the money you promised as a bond.

    Accepting a fee or being paid back (i.e. being indemnified) in return for acting as a surety is a criminal offence.

  • Most bail hearings will last only one or two hours. For more serious cases, bail hearings may take several days to complete. The accused is presumed innocent at a bail hearing. The focus of the bail hearing is on the strength of the plan of release.

    At the start of the hearing, the untested allegations against the accused will be entered as evidence. In more serious cases, police officers may be called as witnesses by the Crown and then cross-examined by the defence.

    Then, the defence will generally call the surety to testify as a witness. The surety will testify about his or her knowledge of the accused’s background, the nature of their relationship, and the role of a surety. The Crown will question the surety to test his or her suitability.

    The surety can be questioned about the alleged offences. It is therefore usually advisable for a surety not to discuss the alleged offences with the accused. The surety should, however, discuss with the accused his or her willingness to obey release conditions.

    The defence will usually not call the accused to testify. The accused cannot be asked about the alleged offences if he or she testifies. The accused can, however, be cross-examined on previous criminal convictions and bad behaviour.

    Finally, the defence lawyer and the Crown prosecutor will make submissions to the justice who presides at the bail hearing. The justice will decide whether the accused should be released on bail.

  • A suitable surety must be located and interviewed by the criminal lawyer. Bail conditions which are reasonable and minimally restrictive should be considered and discussed.

    The surety must be thoroughly prepared to testify. Testifying in court is an unfamiliar and nervewracking prospect for most people. A good criminal defence lawyer can minimize this anxiety, and increase the chances of getting the accused bail, by familiarizing the surety with:
    • The allegations against the accused.
    • The accused’s criminal record.
    • The release plan and the surety’s responsibilities to the court.
    • The court process and how to testify effectively.
    • The questions the surety can expect from the Crown prosecutor.

  • Pre-trial detention can last many months and even years. Obviously this will negatively affect the life of the accused person and his or her family. It can result in the loss of employment or interruption of education. Incarceration also negatively affects the ability of an accused person to obtain the best possible result because:
    • Persons who are detained may abandon their right to a trial and plead guilty.
    • It complicates the ability of the accused to prepare their defence.
    • Persons released on bail are more likely to be acquitted and, if convicted, they are more likely to receive lighter sentences.
  • If bail is denied by a justice of the peace, the decision can be appealed to the Ontario Superior Court of Justice in a “bail review hearing”. To succeed at a bail review, the accused must satisfy a judge of the Superior Court that the detention was either:
    • An error of law (for example, the justice applied the wrong legal test); or,
    • Circumstances have materially changed (for example, there is a stronger bail plan or the case against the accused has become weaker).

    It can take several weeks to get a bail review hearing as transcripts of the original bail hearing must be obtained. For this reason it is important to present a good release plan at the initial bail hearing.

  • In Ottawa, an accused person will usually first appear in bail court at the Ottawa Courthouse at 161 Elgin Street in Courtroom No. 6. Bail court starts at 9:30 a.m. Bail court is usually open on weekends and statutory holidays in the morning.

Download a PDF version of the full bail FAQ here.

Brett McGarry Criminal Law
200 Elgin Street, Suite 800 Ottawa, Ontario , Canada K2P 1L5
Phone: 613-884-8576 URL of Map