This was a file involving a complex file for which I was trying to get my client released on bail. Over the course of several weeks, I was able to get everything in place and provide the judge and the prosecutor with written submissions. Once I did that, when I appeared in court, the prosecutor said he would consent to my client's release. This was on the most minimal conditions possible considering the seriousness for the charges. The client therefore will not have to remain in custody pending a trial. My client was very pleased with the outcome, as was I, as it seemed an impossible result.
Release and Bail
How Release and Bail Work After a Charge
After being charged, the standard is to release an accused person as soon as reasonably possible and on the least restrictive conditions.
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Release by Police Without a Hearing
With amendments to the Criminal Code pursuant to Bill C-75, there no longer needs to be approval from an officer in charge. Therefore, you may be released on an appearance notice or an undertaking. The old provisions of the Code relating to promises to appear (formerly section 493 of the Criminal Code) have been removed as an option for release, as well as most recognizances (recognizances still exist in relation to peace bonds pursuant to section 810 of the Code, but they are no longer a form of release pursuant to section 515.
Appearance Notices and Undertakings
An appearance notice pursuant to section 497 of the Code does not require you to follow any conditions but it will direct you to have your fingerprints taken and will inform you of your first court date.
The appearance notice release arises when you are not arrested and can be related to any indictable offences in section 553 of the Code, or any hybrid or summary offence.
Common Release Conditions
Examples of conditions that may be required include:
- Reporting to the police or probation.
- Notifying of changes to your address or employment.
- No contact with certain people such as complainants and witnesses.
- Restrictions on where you may go or where you may travel.
- Residing at a certain address.
- Maintaining a curfew.
- Weapons restrictions.
- Promise to pay up to $500 if you fail to comply with a condition.
- The deposit of money or security up to $500 at the time you sign the undertaking if you are not an Alberta resident or you live more than 200km away.
- Any other condition to keep victims and witnesses safe; while there is no longer any condition requiring you to abstain from drugs or alcohol, if substance use is related to the offence, you may still be required to not use substances under this condition.
Your conditions must be reasonable in relation to the allegations against you. Conditions may only be imposed if necessary, to ensure attendance in court, ensure the safety of complainants or witnesses, or to prevent potential re-offending.
Changing Your Conditions
Your conditions may be changed with the agreement of the Crown. If the Crown does not agree to change your conditions, then you can apply for a release order to replace the undertaking.
If You Breach a Condition
Breaching such conditions can result in a new charge for failing to comply or failure to appear either in court or for fingerprinting and a warrant may be issued for your arrest.
When Police Can Detain You Instead
The standard default rule is that you will be released as soon as practicable on one of those two forms of release if you were arrested without a warrant. You may however fall into an exception where the police may try to detain you if they need to figure out who you are, to protect evidence from being lost, to prevent re-offending, to keep victims and witnesses safe, or to ensure you attend court. An officer has to have reasonable grounds to believe that those circumstances exist, otherwise it would constitute an arbitrary detention i.e. your constitutional right not to be arbitrarily detained would be violated and you may have remedies resulting from that violation. Another distinction is if you were arrested with a warrant. In that case, you may or may not be released depending on if your warrant was endorsed by a justice.
Call me, an experienced Calgary criminal lawyer to chat about your conditions or any charges you are facing – my job is to help you.
Bail Hearings
Getting a Bail Hearing
If you were not released by a police officer, you must be taken for a bail hearing within 24 hours of arrest or as soon as possible if a justice is not available within that time. At the bail hearing, the justice must release you without conditions unless the Crown can show why you should not be released or why conditions are needed. This form of release is called a release order, often referred to as “bail”. The exception to this rule is if you have been charged with certain serious offences such as murder which will require you to be detained unless you can show why you should not be detained in a bail hearing at the superior court level (court of Queen’s Bench).
What the Court Considers
In deciding whether to grant bail or not, changes to the Criminal Code now require a justice to consider any relevant factor including domestic violence, a criminal record, and the safety and security of complainants. In addition to those considerations, the standard test the Crown must meet in order to detain is to show on a balance of probabilities (more likely than not) that detention is necessary to ensure you attend court, it is necessary to protect the public, complainants, witnesses, or minors, or that it is required to maintain confidence in our justice system.
Reverse Onus Offences
Certain offences may shift the burden and require you, instead of the Crown, to show the court why your detention is not justified and that you are manageable in the community. This can include among others, cases of indictable (offences considered to be more serious) offences alleged to have been committed while on a form of release, offences in relation to a criminal organization, terrorism, certain weapons offences, if you are not a resident in Canada, and certain violent offences.
Conditions and Sureties
The use of conditions may help to mitigate concerns the Crown may have in order to secure your release. If conditions are required to be released, the justice must use the least restrictive conditions possible. Therefore, the starting point is that the release order should not require any money for you to be released. If the justice decides otherwise, you may be required to promise to pay an amount of money if you fail to comply with the conditions in your release order. The next more restrictive option is that you may need a surety with or without your promise to pay. A surety is someone who will also promise to pay or deposit an amount and will then have an interest in ensuring and helping you follow your conditions. Finally, the most restrictive option is that you may have to deposit money or other valuable security to the court with or without your promise to pay. This requirement to use the least restrictive condition possible is reflective of case law that says cash bail should only be required in rare circumstances and the amount should be within your means to be able to pay (that was decided by the Supreme Court of Canada in a case called Antic. This is so that it does not have the effect of detaining you when you should otherwise be released. The justice is thus under an obligation to inquire into your ability to pay.
In addition to any financial obligation, there may be other conditions to follow that are similar to those for undertakings. As with the other forms of release, a release order can be changed with the consent of the Crown and any sureties (if there is one). Further, should you not follow your conditions or are alleged to have committed a new indictable offence while on release, the Crown can apply to have your bail revoked which may result in your detention and in a new separate charge for the breach/failure to comply.
Gladue Factors
In considering conditions, the Criminal Code now includes Gladue factors that require an officer or justice to pay attention to the unique circumstances of Aboriginal accused persons and anyone else who is considered to be part of a vulnerable population that is overrepresented in the justice system and who may be at a disadvantage in terms of getting released. Those considerations may also apply to other vulnerable populations such as persons who are homeless, mentally ill, or suffer from addictions issues. This is to help ensure conditions are appropriate for the individual to ensure success.
Reviewing or Changing Your Bail
If you are detained, you can apply to a judge any time before trial for a review. A review must be based on considerations such as if there is new evidence, a change in your circumstances, or an error of law was made in detaining you. Another option for review happens mandatorily at 90 days if your trial has not yet started. This review hearing will consider any delay and the reason for such delay which may result in a speeding up of the proceedings, your release if continued detention is not required, or your continued detention and another review hearing set within another 90 days.
Recent Case Results
The client was charged with breaching a court order. The allegation was that the client did not adhere to no contact conditions. This was clearly a case of the complainant wanting to use the allegation for family court proceedings. I was able to ultimately have the charge dropped. This left my client with no conviction and no criminal record.
The client was charged with breaching the condition of his peace bond. The allegation was that the client violated the condition not to contact one of the complainants. I reviewed the disclosure, and confirmed that in fact there was no contact as the complainant alleged. I spoke with the prosecutor. The prosecutor agreed and the charge was dropped. The client was left with no conviction and no criminal record.
View All Release and Bail Case Results →
Past results do not guarantee future outcomes. Every case is assessed on its own facts.
Frequently Asked Questions
Release can happen through police release with or without conditions, or through a bail hearing before a justice, where the court decides whether release is appropriate and what conditions should apply. Read more.
In many cases, yes — police can release a person directly on an appearance notice or undertaking without a court appearance, depending on the charge and circumstances. Read more.
The Crown and defence make submissions to a justice addressing whether release is appropriate and what conditions, if any, are necessary, considering attendance in court, public safety, and public confidence in the justice system. Read more.
Bail can be denied where the court is satisfied that detention is necessary — generally relating to the risk of not attending court, the safety of the public, or maintaining confidence in the administration of justice given the circumstances. Read more.
If a warrant has been issued, it is important to speak with a lawyer before dealing with police, to understand your options and how the matter is likely to proceed. Read more.
Conditions vary by case, but commonly include no-contact orders, reporting requirements, residence conditions, and restrictions on alcohol, drug use, or travel, tailored to the specific concerns raised in the matter. Read more.
Violating a release condition can result in a new charge and can affect whether you remain released while your original matter is resolved, so understanding and complying with every condition is critical. Read more.
Not always — many releases involve a signature-only recognizance rather than a cash deposit, though this depends on the circumstances of the case and what the court requires. Read more.
Disclaimer: General information only. Not legal advice. Viewing this content does not create a solicitor-client relationship.