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This section is about the several different ways a person who is arrested and taken into police custody can be released, and the way these different types of release work to ensure that the person comes to court on the date set, to answer the charges against them. The word "bail" has officially been replaced, these days, by the grander title "judicial interim release", but for simplicity, when we're talking about what a judge might grant, we'll still call it "bail".

The Canadian Charter of Rights and Freedoms says that no-one is to be denied reasonable bail without just cause.

Release by the Police

If you find yourself arrested without a warrant, you may well be released by the arresting officer, without even having to go to the station house, by the issuance of an appearance notice, or with the expectation that a summons will be issued later [s.497].

If not, you will be taken into custody, and taken to the police station. There, the officer in charge may authorize your release [s.498]. Again, the police may decide to follow up by issuing a summons, or you may have to give a "promise to appear".

A "recognizance" may be required. This is a guarantee or assurance that you will show up when required, or will have to pay a sum of money - as much as five hundred dollars. If you don't live locally, the officer is entitled to insist that cash or other valuables be deposited. The money (or valuables) you deposit is handed over by the police to a justice for safekeeping [s.500].

These various official release forms are all defined and described in the Code [s.493][s.501]. They are not just meaningless pieces of paper: if you fail to appear when required, a warrant for your arrest can be issued [s.512].

Even if you are arrested under a warrant, the officer in charge at the police station can - if the warrant has been endorsed to this effect by the issuing Judge or Justice - still allow your release using the same methods of compelling your later appearance before a court. You may have to agree to additional conditions, such as reporting to police or a bail supervisor, restrictions on travel and deposit of passport, or staying away from particular places or people. If the conditions seem unreasonable, you can ask a court to change them.

Bail Hearing before a Justice

If the police decide not to release you under any of the methods we've seen so far, they must take you before a Justice, normally within 24 hours, for a decision about what is to be done with you in the time before your court date [s.503]. Will the Justice allow you to be released on bail? The thinking behind bail goes something like this:

It may sound like a cliché, but the law presumes a person to be innocent until proven guilty - that is, until convicted by a court of law. So, if you're (presumed) innocent, obviously you shouldn't be in jail, waiting for the trial date to come around; you should be free, going about your business.

The trouble is, if there's a good chance that "business" will include doing more of whatever you're already charged with doing, or intimidating witnesses who are going to be called to testify at your trial - or perhaps just disappearing without trace - maybe it would be safer (for society) if you stayed in jail, presumed innocent or not.

The Usual Situation: Prosecutor must "Show Cause"

It is generally up to the prosecutor (also called Crown counsel, or just "the Crown") to "show cause" why you should not be released on an undertaking (that you will show up for trial), without conditions.

The sort of conditions that might be asked for are the ones mentioned earlier, and could include orders that you report regularly to the police or probation office, or tell them if you move or change jobs; don't leave the province (you may have to give up your passport, if you have one); or stay away from certain people or places.

The prosecutor may go further, and convince the Justice that a simple undertaking is not enough to ensure that you'll be back on the day set for trial. In this case, you may have to sign the recognizance agreement we talked about above. In it, you agree that failure to appear will cost you money (this is the traditional "bail" idea).

Unless you are from out of province, or live more than 200 kilometres away, you don't actually have to deposit any money. So it's easy to see that an agreement like this one wouldn't mean very much if you were planning to catch the next plane to South America.

For this reason, amongst others, the Justice may not accept your promise unless it is backed up by someone who will act as "surety" for you. This has to be a person that the court thinks has the money to pay if necessary, and that it can rely on to stick around, and make sure you do, too.

The Crown may not want the court to grant your release at all. But before the Justice will grant a detention order, he or she has to be convinced it is necessary, on at least one of three grounds [s.515]: to prevent you from fleeing the jurisdiction (the "primary ground"); for the protection or safety of the public (the "secondary ground"); or for "any other just cause" (a third ground more recently added, apparently to cater to public or media concerns about people accused of certain serious offences being released on bail, even where they are not a threat to society).

Protecting the public means keeping an offender from continuing with criminal behaviour, or interfering with witnesses or evidence. So you can see that the "presumption of innocence" only goes so far. At a certain point, practical considerations take over.

Special Situations: Accused must "Show Cause"

In some circumstances, the balance shifts. Rather than the prosecutor having to convince the Justice that you, as the accused, should be detained, it is up to you to persuade the Justice that you should be granted bail. This happens when:

If you are in one of these categories, you will not get bail without satisfying the Justice that you will attend court as required, and that you will not commit a further crime, or interfere with the administration of justice in any way.

The Hearing

We have seen that, if the police take you into custody on a criminal charge, and decide not to release you on their own authority, they must bring you before a Justice, generally within 24 hours. Either you or your lawyer, if you have one, will have an opportunity to make arguments and submit evidence aimed at convincing the Justice to release you. If you do not have a lawyer, there may well be "duty counsel" in the courthouse who can help you, at no charge.

You are allowed to testify in support of your application for bail, but the court will not want to hear argument about whether you committed the alleged offence itself [s.518]. The Crown is allowed to tell the Justice about your criminal record, if you have one, and if you are already waiting for trial on another offence, this will also be brought to the attention of the court. If you have previously been convicted of failing to appear, this will be brought up, and is likely to be quite damaging to you.

While the press have a general right to report what goes on in the courtroom, at this stage your right to a fair trial takes priority. You or your lawyer can ask the Justice for an order banning publication of details of the charges against you, as a way of preventing prejudice to that right. If the order is granted, the press won't be able to publish or broadcast anything about the allegations made, or the reasons for your detention or release [s.517].

Bail Review

Either side (the accused or the prosecutor) can apply to the superior court (in British Columbia, the B.C. Supreme Court) for a review of the bail decision made by a Justice. The judge who does the review can consider not only evidence and transcripts of witnesses' testimony from the original bail hearing, but can also hear new evidence from either side. He or she can then either uphold or overrule the decision of the Justice. If the application for review is unsuccessful, no further application can generally be made until 30 days have passed [s.520].

When an accused is being held in custody before trial, there are also automatic bail reviews that will take place. For summary offences, these must occur at 30 day intervals, and for indictable offences, every 90 days. The idea is that an accused person should not be left in jail for extended periods, waiting for trial, if there is no reason he or she should not be released during that time. It is up to the warden of the remand prison to apply for these reviews, within the appropriate time periods.

Bail Violations

If you are released on bail, and violate any undertaking or recognizance you have given, or if you commit any indictable crime, you are liable to be arrested, either with or without a warrant. You will be taken before a Justice, and it will be up to you to show why your release should not be cancelled. If you can't "show cause" why you should not be taken into custody, you will be held in jail until your preliminary hearing or trial.

If you have signed a recognizance, you must appear whenever and wherever required [s.763]. If you fail to appear, or are found to have broken any bail condition, there will be a hearing before a judge to decide whether you or your surety should forfeit the money that was either deposited or pledged. If forfeiture is ordered, any amount pledged becomes a judgment debt owing to the Crown (either the provincial or federal government, depending which one started the proceedings against you).

If this debt is not paid, the Sheriff will be ordered to collect it. Finally, if a surety can not, or will not, pay the amount promised, and it is not possible to seize enough of the surety's property to cover the full amount owed, the surety can be arrested and imprisoned. There would be a hearing before this happened, to give the surety an opportunity to offer excuses for the failure to pay.

It is possible for a surety to change his or her mind, and apply (in writing) to be released from the promise to pay if you do not appear for trial [s.766]. If this happens, the court will issue an order for your committal to jail. The surety gets a copy of this order, and it entitles him or her to arrest you and hand you over to the police. The surety is only relieved of the promise to pay once you have been arrested, either by the surety or by the police, and taken into custody.


Further Reading:

More on Bail from Ron Jourard of Toronto


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