On what grounds can bail be denied?

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What is Bail?

The concept of bail, or pre-trial release, is the mechanism by which an accused person remains out of custody (jail) before a trial of the matter. Not every accused person is granted bail, as there are many considerations the court must be satisfied of in order to grant someone release pre-trial.

Our Canadian Charter of Rights and Freedoms, section 11(e), assures individuals that bail will not be unreasonably denied. However, what constitutes the reasons for a denial of bail can be fact specific.

When will a judge deny me bail?

A judge may deny a person’s release (bail) in a number of circumstances.

If the judge is not satisfied that the accused will appear in court to answer to the charges, then bail may be denied. The judge will look at the accused person’s past and if there are convictions for failing to appear for court, or similar type charges, then the court may be inclined to deny bail on that basis. The judge may also consider whether the nature of the offence makes the accused person a flight risk.

Another consideration for the bail judge is protection and safety of the public. The court must consider whether or not releasing an accused person would jeopardize the public safety. Some of the considerations regarding public safety are the seriousness of the charge, whether the accused has a prior criminal record for similar offences or for violent offences, and whether or not the accused has a record for breaching court orders, in particular, by communicating with victims/witnesses.

Reserved for those rare, exceptional cases, bail can be denied if its grant might dent the public's trust in justice. Even if the first two grounds are in the accused's favour, the exceptional seriousness of the crime, its context, and potential sentencing can lead to the court’s conclusion that bail must be denied.

What if bail has been denied? Can I appeal the decision?

A bail denial isn't the end of the road. If a decision to deny bail has been made, then an accused may apply to a higher court to request a “review” which is like an appeal of the lower court’s decision. However, there must be something that triggers an appeal – it could be fresh evidence, a change in circumstance, or an error made by the lower court.

Even if an accused person is released in the first instance, or after a judicial review, oftentimes being out on bail (release) means there will be several conditions attached to the release. For example, there may be a requirement to abide by a curfew, report to a probation officer, abstain from contacting victims/complainants, and abstaining from the consumption or possession of alcohol and drugs.