Release and Bail
After being charged, the standard is to release an accused person as soon as reasonably possible and on the least restrictive conditions.
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 Criminal 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 Criminal code, but they are no longer a form of release pursuant to section 515 of the Criminal Code.
An appearance notice pursuant to section 497 of the Criminal 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 related to any indictable offences in section 553 of the Criminal Code, or any hybrid or summary offence.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.