Section 11(e) of 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 police are granted powers by the Criminal Code of Canada to arrest individuals under a variety of circumstances. Once arrested, an accused person might be released from the scene where he or she was arrested by being given an “appearance notice.” This generally requires the accused to come to court on a particular date and time that is indicated on the notice. Accused persons may also be required to attend a police station to provide fingerprints and photographs of themselves on a date specified on the notice.
Alternatively, a person may be arrested and taken to a police station. The police may then decide to release the accused person from the police station by giving the accused person a “promise to appear.” This promise to appear will contain information regarding the courthouse the accused person must attend, as well as the date and time. The promise to appear also contains conditions of release that the accused person must obey. For example, an accused person may be prohibited from communicating with certain individuals that the police may believe are connected to the case.
Where the police have determined that they will not release the accused person from the police station, the individual must be taken to court to appear before a justice of the peace within 24 hours of the arrest. A bail hearing will take place as soon as possible, although adjournments may be required to make sure all the parties are prepared to proceed with the proceeding.
Very often, the prosecutor and the lawyer for the accused can agree on the amount of bail and conditions of release. This is referred to as a “consent bail” and the justice of the peace generally releases the accused person on the terms of the agreement. “Sureties” are generally required as part of the conditions to release an accused person on bail. A surety is usually a friend or family member of the accused person that comes to court and indicates that he or she is prepared to pledge an amount of money and is also willing to monitor the accused person while on bail.
On other occasions, there may be no agreement between the prosecutor and the lawyer for the accused person, and a “contested” bail hearing takes place. There are only three grounds for detaining an individual at a bail hearing. They are commonly known as the primary grounds, secondary grounds, and tertiary grounds. The primary grounds refer to whether the detention is necessary to make sure that the accused person will attend his or her trial. That is, whether the accused person is a “flight risk.” The secondary grounds refer to whether the detention is necessary because there is a substantial likelihood that the accused person will have further problems with the law while on bail. The tertiary grounds are generally reserved for the very serious offences like robbery or murder and considers factors such as how strong the case is against the accused person, how serious the offence is, the circumstances of the offence and whether a gun was used, and the potential length of the sentence that the accused person could receive if found guilty.
The accused who receives bail must obey all of the terms and conditions of the bail order until their trial is completed or they may be arrested and brought to court for a further bail hearing.