Bail in Canada refers to the release (or detention) of a person charged with a criminal offence prior to being tried in court or sentenced. The Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms guarantee the right not to be denied reasonable bail without just cause. That right is implemented by the Criminal Code, which provides several ways for a person to be released prior to a court appearance. A person may be released by a peace officer or by the courts. A release by the courts is officially known as a judicial interim release. There are also a number of ways to compel a person's appearance in court without the need for an arrest and release.
History The Canadian law of bail is derived from the principles of bail which evolved in the English common law. In particular, the right to be released without excessive bail was enshrined in the English Bill of Rights,Bill of Rights (Eng.) 1 Will. & Mary, Sess. 2 (1688), c. 2. which was part of the law of the colonies in British North America.
Prior to Confederation in 1867, the individual colonies each had the authority to enact local laws relating to bail. After 1867, the Parliament of Canada acquired exclusive jurisdiction over the criminal law,Constitution Act, 1867, s. 91(27). including the law of bail. The first major federal legislation with respect to bail was included in the criminal legislation package of 1869.An Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30.Alan W. Mewett, "The Criminal Law, 1867-1967" (1967), 45 Canadian Bar Review 726, pp. 726-727. In that law, the federal government made bail discretionary for all offences. This provision was subsequently subject to much judicial interpretation, as it made the granting of bail highly discretionary for each justice of the peace. It also placed considerable emphasis on cash bail, making release on bail dependent on the individual's financial resources, rather than factors such as likelihood of appearing to answer the charges.M. L. Friedland, Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (Toronto: University of Toronto Press, 1965), p. 176.
The next major statutory change to bail in Canada was the 1960 Canadian Bill of Rights which provided for a "right to reasonable bail".Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(f). This provision was subsequently used by the courts to rule, for the first time, that the Extradition Act included a right to bail.The Law of Bail in Canada, p. 15.
In the early 1970s, the procedure for granting bail in Canada was completely revised by the Bail Reform Act, which extensively amended the bail provisions of the Criminal Code.The Law of Bail in Canada, p. i. This act placed the onus for justifying an accused's detention on the prosecutor, gave police new powers to release persons charged with an offence prior to their coming before a justice, and created detailed procedures for bail reviews.The Law of Bail in Canada, p. 12.
In 1982, the Canadian Charter of Rights and Freedoms enshrined the right to bail in the Canadian constitution. Section 11(e) of the Charter stipulated that "any person charged with an offence has the right ... not to be denied reasonable bail without just cause".The Law of Bail in Canada, p. 16. This was subsequently used by the Supreme Court of Canada to strike out bail provisions of the Criminal Code which the court held to be excessively vague in R v Morales.
Another important reform occurred in R v Zora, a 2020 Supreme Court ruling, which found that breaching bail has a subjective, not objective, mens rea. In other words, a person cannot be convicted of breaching bail conditions because of an accident or mistake, but only because of intentionally or recklessly breaching the bail conditions.R. v. Zora, 2020 SCC 14 (CanLII), at para. 4. Zora also took aim at the common practice of routinely imposing multiple conditions on bail; it emphasized that "the default form of bail is to release accused persons based on an undertaking to attend trial, without any conditions restricting their activities or actions"Zora, at para. 1. and that any conditions must be the minimum necessary to address the specific risk factors presented by the individual accused.Zora, at para. 6.
Process to compel attendance without an arrest The Criminal Code provides two ways that a person can be brought before the courts without first requiring an arrest: an appearance notice, issued by the police officer, or a summons, issued by a Provincial Court judge or justice of the peace. Failure to comply with an appearance notice or summons can result in an arrest warrant being issued,Criminal Code, R.S.C. 1985, c. C-46, s. 512(2). and possibly further charges for failure to appear or comply with conditions.Criminal Code, s. 145.
Appearance notice In certain cases, a peace officer can choose to issue an appearance notice to a person, instead of arresting the person. There are three conditions for issuing an appearance notice: (1) the peace officer must have reasonable grounds to believe that a person has committed a summary conviction offence, a hybrid offence, or an offence within the absolute jurisdiction of a judge of a Provincial Court,Criminal Code, s. 496. (2) be satisfied on reasonable grounds that an arrest is not necessary to establish the identity of the person, secure or preserve evidence, or prevent the continuation of the offence or the commission of another offence, and (3) there are no reasonable grounds to believe the person will fail to attend court.Criminal Code, s. 495(2).
An appearance notice directs the accused to appear in court on a given date. When the accused is alleged to have committed an indictable offence, the appearance notice can also require the accused to report for fingerprinting and photographing under the Identification of Criminals Act.Criminal Code, s. 501.
An appearance notice must be subsequently confirmed by a justice of the peace.Criminal Code, s. 508.
Summons Alternatively, where a peace officer believes on reasonable grounds that a person has committed an indictable offence, the peace officer can lay an information before a Provincial Court judge or a justice of the peace. If the judge or justice of the peace is satisfied grounds exist, they can issue a summons requiring an accused to appear in court on a given date.Criminal Code, s. 507.Criminal Code, s. 509. The summons can also require the person to report for fingerprinting and photographing under the Identification of Criminals Act.
Release by police after arrest Police officers have a number of options to release an accused subsequent to their arrest but without the accused having to attend court for a release hearing. Failure to comply with these requirements can result in an arrest warrant being issued, and possibly further charges for failure to appear or comply with conditions.
Release by arresting officer The officer who arrests the person can release them on an appearance notice or with the intention to apply to a justice of the peace for a summons, as described above.
Release by officer in charge Alternatively, the officer who arrests the person can take the person to the officer in charge of the facility where the person is being held, who then has powers to release the person. The release can include a requirement that the person appear for photographing and fingerprinting under the Identification of Criminals Act. Unlike the arresting officer, the officer in charge can impose additional conditions on the release in certain cases, in the form of undertakings.Criminal Code, s. 499.
Summons or promise to appear The officer in charge can release the person with the intention to apply for a summons, or can issue a promise to appear, which is similar to an appearance notice.Criminal Code, s. 498.
Recognizance The officer in charge can require the individual to enter into a recognizance, committing the person to pay up to $500 if the person fails to appear in court. No sureties are required. The person does not actually need to deposit the money with the officer in charge, unless the person is not ordinarily resident in the province or within 200 kilometres of the place of custody.
Undertaking to an officer in charge The accused can enter into an undertaking to an officer in charge to abide by certain conditions while they are on a release, in addition to any other conditions of release. An undertaking can have one or more of the following conditions: to remain within a territorial jurisdiction, to notify the officer of any change of address, employment, or occupation, to abstain from communicating directly or indirectly with certain individuals, to abstain from attending certain locations, to deposit their passport, to abstain from possessing any firearm and to surrender any firearm licences, to report at certain times to the police, to abstain from the consumption of alcohol or other intoxicating substances, to abstain from the consumption of drugs except in accordance with a medical prescription, and to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any complainant or witness.
Release hearing
If the police do not release an arrested person, there must be a judicial hearing, formally known as an application for "judicial interim release". Depending on the circumstances and the offence, the hearing may be held before a justice of the peace, a Provincial Court judge, or a judge of the superior trial court of the province. The justice or judge can order the detention of the person, or the release on various conditions. Failure to comply with the conditions of release can result in an arrest warrant being issued,Criminal Code, s. 524. or additional charges for failure to appear or failure to comply with conditions.
Timing The police must bring the arrested person before a justice of the peace (which can include a Provincial Court judge) without unreasonable delay and in any event within 24 hours of the arrest. If a justice is not available within 24 hours, the police must bring the person before a justice as soon as possible.Criminal Code, s. 503. The justice can then conduct a release hearing.Criminal Code, s. 515.
The exception is if the person is charged with particularly serious offences, such as murder or treason. The justice of the peace must issue a warrant of committal, authorising detention until dealt with by a superior court trial judge.
The hearing may be adjourned by the justice, or on the request of the arrested person or the Crown prosecutor or police officer. However, if the defence does not consent to the adjournment, the justice cannot adjourn the hearing for more than 3 days.Criminal Code, s. 516. If the hearing is adjourned, the justice may order the accused not to communicate with certain individuals while the accused is detained.
Grounds for detention There are three different grounds for detaining an accused prior to sentence.Criminal Code, s. 515(10). They are commonly referred to as primary grounds, secondary grounds, and tertiary grounds.
Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court. Considerations include the accused's criminal history, their behaviour in the matter before the court, their connections (or lack of) with the jurisdiction, and the type of offences before the court.
Secondary grounds refers to whether detention is necessary for the protection or safety of the public. This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice.