Bail in Canada
Bail in Canada refers to the release 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, 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, including the law of bail. The first major federal legislation with respect to bail was included in the criminal legislation package of 1869. 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.
The next major statutory change to bail in Canada was the 1960 Canadian Bill of Rights which provided for a "right to reasonable bail". This provision was subsequently used by the courts to rule, for the first time, that the Extradition Act included a right to bail.
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. 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.
In 1982, the Canadian Charter of Rights and Freedoms enshrined the right to bail in the Canadian constitution. Section 11 of the Charter stipulated that "any person charged with an offence has the right... not to be denied reasonable bail without just cause". 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. 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" and that any conditions must be the minimum necessary to address the specific risk factors presented by the individual accused.
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, and possibly further charges for failure to appear or comply with conditions.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: 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, 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 there are no reasonable grounds to believe the person will fail to attend court.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.
An appearance notice must be subsequently confirmed by a justice of the peace.
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. 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.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.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
Timing
The police must bring the arrested person before a justice of the peace 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. The justice can then conduct a release hearing.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. If the hearing is adjourned, the justice may order the accused not to communicate with certain individuals while the accused is detained.