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What is a bail hearing?

A bail hearing is a hearing where a judge decides whether to release an accused from jail while the accused awaits the outcome of their criminal charge(s).

If the judge doesn’t grant the accused bail, the accused is detained (i.e. the accused must stay in jail until they’ve pleaded guilty or finished their trial). Another term for bail is judicial interim release.

Why would a judge decide to detain someone instead of granting bail?

A judge can choose to detain an accused instead of granting them bail for three reasons:

(1) To ensure the accused appears for court;

(2) To protect the public; or

(3) To maintain confidence in the administration of justice.

Criminal lawyers call these the primary, secondary, and tertiary grounds of detention.

The primary ground of detention becomes important if the accused presents a serious flight risk or if they’ve failed to attend their court dates. A judge will determine whether to detain the accused on the primary ground based on the accused’s roots in Canada, the seriousness of the offence the accused has been charged with, and any history the accused has of failing to attend court.

The secondary ground of detention becomes important if the accused is likely to commit new crimes if they’re released on bail. A judge will determine whether to detain the accused based on the seriousness of the offence the accused has been charged with, the accused’s history of breaching court orders, and the accused’s criminal history generally. With regard to an accused’s criminal history, a judge is more likely to have secondary ground concerns if the accused is currently charged with similar offences to ones they’ve previously been convicted of.

The tertiary ground of detention becomes important if the prosecutor has charged the accused with a very serious offence and the case against them appears to be very strong. In such a situation, a judge may choose to detain the accused because releasing them would harm the public’s confidence in the justice system.

What can someone charged with a crime do to improve their chances of being granted bail?

Canadians have a constitutional right to reasonable bail, and to the presumption of innocence. Usually the prosecutor has the burden of persuading a judge that an accused should be denied bail. People charged with less serious offences and with limited criminal histories are usually able to secure bail.

On the other hand, where a judge might have serious concerns about any of the three grounds of detention, the accused will need a strong bail plan to convince the judge to release them. A judge will want to know where the accused will be living, who they’ll be living with, what they’ll be doing, and most importantly, why they’ll be motivated not to breach any bail conditions the judge will impose.

If a judge has serious concerns about releasing an accused on bail but is still willing to grant it, the judge’s release order will be a very strict one.

Do people charged with a crime always have a bail hearing?

Not everyone charged with a crime will require a bail hearing. For example, the police (or a process server) can serve a summons on the accused. A summons only imposes an obligation on the accused to attend court. It doesn’t impose any conditions on the accused while they’re awaiting the outcome of their criminal charge.

Another form of release that doesn’t require a bail hearing is an undertaking from a police officer. A peace officer (i.e. a police officer) imposes these conditions on the accused after they’ve arrested them. The officer may choose not to bring the accused into court for a bail hearing, instead giving the accused a court date and conditions the accused has to comply with.

What are some release orders made by judges after bail hearings?

From least restrictive to most restrictive, judges can impose release orders with:

(1) No financial obligation. If the accused breaches a condition of the order, they won’t be financially liable for it (but they could be charged with failure to comply with release order);

(2) Promise to pay. If the accused breaches a condition of the order, they must pay a specified amount of money to the court;

(3) Surety, with or without promise to pay. A surety (i.e. guarantor) is someone who guarantees the accused’s good behaviour on the accused’s behalf. If the accused fails to comply with a condition of the release order, the surety pays a specified amount of money to the court;

(4) Deposit. If the accused breaches a condition of the order, they forfeit (i.e. give up) their deposited money to the court;

(5) Deposit and surety. This is only available if the accused lives more than 200 km from where they’re being prosecuted.

What are some conditions of release orders?

Judges impose release order conditions (i.e. bail conditions) intended to address their primary or secondary ground concerns. In other words, judges impose bail conditions to ensure the accused attends court and doesn’t risk the public’s safety.

Some common primary ground conditions are that the accused must:

(1) Report regularly to a bail supervisor;

(2) Live at a specified address and not change that address without the permission of their bail supervisor;

(3) Remain within the province of BC;

(4) Deposit their passport to the court;

(5) Etc.

Some secondary ground release conditions are that the accused must not:

(1) Contact the alleged victim directly or indirectly;

(2) Go to any residence, workplace, or school of the alleged victim;

(3) Possess any weapons;

(4) Drink alcohol or take any non-prescription drugs;

(5) Etc.

What happens if someone breaches a condition of their release order?

If the accused breaches a condition of their release order, the prosecutor can charge them with the criminal offence of failure to comply with release order. If the prosecutor charges the accused, a justice will issue a warrant for the accused’s arrest. The police will take the accused into custody, then bring them to court for a new bail hearing.

A judge or justice is less likely to re-release an accused after they’ve breached their bail conditions. If the accused is re-released, it’s usually either on a stricter release order, under stricter release conditions, or both. If the accused’s alleged breach is very serious, or the prosecutor charges the accused with multiple breaches, a judge or justice is likely to detain them.

Does an accused have to remain in jail until the end of their trial if they don’t make bail?

If a provincial court judge doesn’t grant bail to an accused (i.e. if they detain the accused), the accused can apply for bail review in superior court. A superior court judge will only vacate the original detention order if they find that the original judge:

(1) Made an error of law; or

(2) Weighed one or more factors favouring release or detention improperly.

A superior court judge might also vacate the original detention order if the accused has had a material change in circumstances.

An accused also has a right to detention review after 90 days.  It’s the jailer’s obligation to initiate the detention review process.

A detention review is not like a new bail hearing. If the accused has had no significant change in circumstances, a judge is likely to simply maintain the detention order. However, if the accused has served an amount of time in jail that is equivalent to the jail time they might receive if found guilty, a judge is much more likely to release them.

If someone just wants to plead guilty to “get it over with”, is there any point in trying to obtain bail?

Some people charged with serious offences who expect to go to jail for those charges sometimes decide not to bother having a bail hearing. Instead, they choose to remain in jail until they’ve reached a time served sentence, or they choose to plead guilty immediately and start serving their jail sentence.

Being granted bail is generally better than simply awaiting a time served sentence in jail. If an accused is able to build a record of good behaviour while on bail, a judge might view that as a significant mitigating factor at sentencing. It can reduce the amount of jail the judge might ultimately impose on the accused, or could even help an accused avoid a jail sentence altogether.

You can see some of the firm’s case results for bail hearings HERE.

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