Practice Areas
Bail Hearings
Everyone in Canada has the right not to be denied reasonable bail without just cause, this is enshrined in the Canadian Charter of Rights and Freedoms section 11(e). If you have been charged with a criminal offence the police have immediate discretion to address your pre-trial release. It is possible that you may be released on a Promise to Appear or a Recognizance which would have conditions to abide by until your criminal charges are resolved. If the police do not consent to your release then a bail hearing will occur within 24 hours before a Justice of the Peace, or it can be adjourned in court where it will be addressed by a Crown prosecutor and a provincial court Judge. The factors to be considered at a bail hearing are codified in the Criminal Code of Canada at S.515(10):
your detention is necessary to ensure that you will be in court to deal with your criminal charges;
Does the accused have any convictions for failure to comply with Court orders?
Does the accused live close to where they were charged?
Does the accused have employment/family/property where they were charged?
was the accused attempting to flee or evade when being arrested?
your detention is necessary to protect the security of the public including any substantial risk that you will re-offend; and
Does the offence involve weapons/somebody being injured or killed/gang activity?
Does the accused have a criminal record for similar offences and/or violence?
Is the alleged offence related to substance abuse or mental health issues?
your detention is necessary to maintain confidence in the administration of justice.
Does the Crown’s case appear to be strong?
Is the alleged offence serious?
Is the accused liable for a potentially lengthy term of imprisonment?
Section 11(e) of the Charter 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” (R v Antic, 2017 SCC 27). The Supreme Court of Canada has held that the release of accused persons is the cardinal rule and detention is the exception. Additionally, “release is favored at the earliest opportunity and on the least onerous grounds” (R v Myers, 2019 SCC 18 at para 25).
The “ladder principle”, which is codified in section 515(3) of the Criminal Code, requires a Court to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case (R v Antic, at para 4). The most onerous form of release in Canada is with a surety and monetary deposit. A surety is a person, usually a family member, who resides with the accused, who makes a promise to the Court that they will be in a position to ensure that the accused is complying with bail conditions. A surety can be financially liable to the Court if the accused person breaches the conditions of their release.
The Courts recognize that pre-trial detention has a serious detrimental impact on an accused’s ability to raise a defence as well as the significant cost in terms of the loss of liberty, the impact on an accused’s mental and physical well being and their families, and the loss of livelihood (R v Myers, 2019 SCC 18 at para 27).
It is strongly recommended to hire a lawyer to assist you through this process. Calgary Criminal lawyer Curtis Mennie has secured the release of countless individuals through contested and uncontested bail hearings. Curtis Mennie is able to address the relevant issues and have a discussion with the Crown or officer to negotiate favorable release terms.
