How Does Bail Work? 4 Guidelines to Know About the Bail Process

An accused person has a right to bail, which is also known as a temporary release, as their case goes through the court system. Technically, “bail” is a judicial interim release that allows an accused person and his or her charges to litigate the case without detention. If the law enforcers choose to detain, they have to produce you before a judge within 24 hours.

Posting bail is however not a straightforward matter. To grant or not to grant bail depends on a number of factors, including the severity of the matter before the court. To understand how bail works, here are four guidelines you should know.

1. Release on Consent or Show Cause

You can be released on bail if the Crown prosecutors agree with your bail hearing lawyer. However, the bail comes with conditions, which you must agree with for the bail to be granted. Of course, you will be required to appear before the judge (in person or via a video link) when your case comes up for a mention. Should the Crown decline your bail application, or if you reject the bail terms, a date for a show cause hearing will be set, which is also known as a bail hearing.

2. What Happens at the Bail Hearing?

The presumption at a bail hearing is that you will be released. On the other hand, the Crown seeks to prove, or show cause, why you should be detained until the matter is resolved. The defence has the onus of proving that, under the circumstances, your release is the right and reasonable thing to do.

3. Forms of Release

Forms of release refer to the various bail options available to you. Think of these options as a staircase. At the lowest step is the most favourable form of release, which is the least restrictive. At the top of this staircase is detention. In this staircase example, the Crown has to argue upwards from the least restrictive to the most restrictive. However, in reverse onus, the defence has to argue from the top (most restrictive) and make their way down towards the less restrictive options.

Reverse onus seeks to assure the Crown that the accused does not intend to jump bail and, therefore, deserves a less restrictive form of release. If the bail is granted, the defence must assure the court that their client will turn up in court when their case comes up. The court may also slap a financial penalty, also called a bond, on the accused. Although the bond is not paid upfront, if a bonded person breaches the bail terms, the court can collect the bond. It is not good to breach bail terms as this could result in more charges.

4. Grounds for Detention

Detention can be justified only on grounds stipulated in the Criminal Code, s. 515(10), i.e. to make sure the accused appears in court and does not “skip bail”. The other ground for detention is to protect the public’s safety, especially that of victims and anyone under 18 years. Detention can be upheld if there is enough reason to believe the accused is likely to commit another offence should they be released, or if in the opinion of the court it is necessary for the purposes of maintaining “confidence in the administration of justice”.

The bail process can be quite stressful. It could mean spending hours or days in a cell as your bail hearing lawyer argues your application with the Crown. Matters could get tricky if the Crown is opposed to granting bail, in which case a bail hearing date will be set. The implication is that you might spend a couple more nights at the Detention Centre.

Now that you know a few things about how bail works, you are in a better position to make the right decisions should you find yourself on the bail end of the law.