What If I Violate My Bail Conditions?
If you are charged with a crime, you are presumed innocent until proven guilty. With that in mind, you also have the right to expect to remain free on bail until your trial. There are exceptions, of course, depending on the crime you have been accused of committing and the circumstances surrounding the offence. Your past criminal record and whether you are a flight risk may also determine whether you should be held in custody pending trial.
However, when you are facing criminal charges, you have the right not to be denied reasonable bail without just cause under the Canadian Charter of Rights and Freedoms. Section 11(e) is a procedural right that “entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons.”
The court has the power to release you on a judicial interim release commonly known as bail. Typically, conditions are attached to your release that you must follow. But what happens if you violate those terms? Does it mean you are necessarily guilty and deserve to be held in custody until your case is heard in court? Never assume the worst.
It is in your best interest to seek legal advice. Pleading guilty to violating the conditions of your release could result in a jail sentence. You could also be denied bail on future charges since you will be seen by the courts as a risk.
Contact me for a free consultation and find out how I can help you.
Bail releases can come with conditions
After you have been charged with an offence you could be released by a police officer by way of an appearance notice or a promise to appear. This is common for those accused who have little or no criminal record and for minor charges. No bail hearing is required.
If the police believe you are not fit for release, the Criminal Code states that anyone accused of a criminal offence is entitled to a bail hearing within 24 hours of being arrested or “as soon as possible” if a justice is not immediately available.
The Supreme Court of Canada (SCC) has noted that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception. To automatically order detention would be contrary to the ‘basic entitlement to be granted reasonable bail unless there is just cause to do otherwise.’”
Conditions are essentially imposed to ensure you will not pose a risk to the public and that you will appear for all future court hearings. These conditions could include:
- surrendering any weapons;
- abstaining from alcohol or drugs;
- attending required court sessions;
- travel restrictions; or
- a curfew.
In a typical bail hearing, the crown must prove why releasing you would not be in society’s best interest. However, there are some circumstances where the onus would be on you to demonstrate why you should be allowed bail. This could include offences committed while you were already on bail, offences committed for terrorist or criminal organizations or if you are not ordinarily a citizen of Canada, for example.
Still, the conditions of your release should not be so onerous that you are unable to live up to them.
Supreme Court has set guidelines for bail conditions
The Supreme Court has clarified how bail conditions should be set, stating that normally there should not be any conditions and, if there are, they should be as few as possible. The terms must be clear, necessary and match the risk of the situation. Courts should be careful not to set bail conditions that a person cannot meet.
In R. v. Myers, the SCC noted that “the experience of pre-trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence. It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods.”
Moreover, those kept in jail awaiting trial may be more likely to plead guilty, the Court stated.
The burden of proof is with the crown
Breaching the terms of your bail is a crime that could land you in jail. Ironically, you could be convicted of violating bail and later be found not guilty of the original offence. Interestingly enough, one of the terms of your conditions may be not to be out late at night, which is not ordinarily considered a crime.
It is the duty of a prosecutor to prove you breached a condition of your release and knowingly did so. That intent is important.
In R. v. Zora, the Supreme Court ruled that to be found guilty of breaching bail conditions, an accused must realize they are breaching the terms or know they are seriously risking it.
In the case, a man was released on bail and one of the terms stated that he had to be home at a certain time and come to the door within five minutes when someone was knocking. Twice police went to the door and when he didn’t answer either time, he was charged.
The man claimed he was home both times but didn’t hear the knock and a judge found him guilty of violating bail.
In overturning the ruling, the Supreme Court stated that a person must do something that is against the law, which is called the actus reus (guilty act). But that person must always be aware of what might happen, having the mens rea, or a guilty mind.
In its unanimous decision, the SCC found the mens rea for breaching a bail condition was subjective and court must consider what the person actually knew or was aware might happen when deciding if a breach occurred.
What if I had a good reason to breach the conditions of my bail?
When I represent you in a bail hearing, I will work diligently to ensure the terms are not so restrictive that you are not able to comply. However, there may be a time when you violate a condition even though it was not your intention to commit a criminal act. For example, if you are restricted from leaving your home between midnight and 6 a.m. and you fall seriously ill at 2 a.m., would you be convicted if you went to hospital? It is unlikely.
Of course, the outcome of your case will depend on the evidence. I have successfully represented clients in all matters of bail hearings and I can guide you through what can be a complex legal matter. Check out my cases for release and bail section to see how I can serve you.