Bail / Release

Introduction

Bail is perhaps the single most important aspect of a criminal file.  An accused who is detained without bail will be under almost unrelenting pressure to resolve a matter in order to secure his release. He will generally forgo his right to full disclosure of the Crown’s case, or the opportunity to avail himself of Charter defences, in order to resolve the matter and regain his liberty.  This may result in him agreeing to a criminal conviction and accepting the Crown’s first offer, instead of negotiating for a better sentence.  On the other hand, an accused who is released is given the opportunity to work, see his children, and otherwise engage in normal activities, subject to certain restrictions.  He will likely avail himself of his legal right to disclosure of the Crown’s case and may choose to fight the charges or be in a better position to negotiate a resolution.

In R. v. Antic[1] the Supreme Court of Canada reaffirmed the right to reasonable bail.  The Court went further and found that reasonable bail employed a “ladder” principle of interim release, favouring less onerous forms of release.  The Court also held that the Crown must justify moving up the ladder to more onerous conditions, including the requirement of a surety to monitor an accused’s compliance. In the wake of Antic,bail courts have backed off some of the more onerous conditions, as well as the use of conditions requiring an accused to reside with sureties in most cases. 

Similarly, Bill C-75, one of the last pieces of legislation passed by the Liberal government before the October 2019 election, re-wrote many sections related to release of an accused.  The goal was summarized in the new section 493.1 of the Criminal Code.

In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be. (Emphasis added)[2]

The amendments in C-75 were also undertaken to rationalize the release sections of the Code which had become convoluted as a result of piecemeal amendments.

Conditions of Release

Even when released on a charge, the accused will likely be subjected to some restrictive conditions, either as part of an Undertaking or Bail. These conditions may restrict the accused’s ability to enter certain geographic locations (area restrictions) or may restrict the accused’s ability to communicate or associate with certain persons or classes of persons (e.g., victims, witnesses, or other accused).  There may be other restrictions such as a curfew, a prohibition on possessing weapons or a prohibition on the consumption of alcohol (or other intoxicants).

Any restrictions imposed on the accused must be related to one of the following factors:

  1. To ensure attendance in court;
  2. To establish the identity of the person;
  3. To prevent the repetition of the alleged offence;
  4. To prevent the commission of further offences;
  5. To protect the safety of the public, including the alleged victim or witnesses.[3]

Release conditions are not intended to punish or rehabilitate the accused.  As such, conditions such as attendance of anger management or other counselling, or payment of monies are not appropriate conditions.

Anyone may telephone the police to report a breach of the bail conditions.  An allegation of breaching any condition will likely result in the accused’s re-arrest.  The accused will be charged with a further offence of breaching an undertaking or recognizance.  Any further release from custody will likely involve the addition of sureties (or additional sureties if the accused is already on bail) and tighter conditions of release. 

Given the public policy and safety issues that arise in the domestic assault context, unless the allegations are clearly untrue, the police will arrest an accused in all cases of domestic violence.  For the same reasons, release will almost universally involve conditions meant to limit contact between the accused and the complainant[4] in a domestic matter.

Undertaking to Peace Officer or Officer in Charge vs. Bail

There are two ways in which an accused may have conditions imposed on him.  The first is during an arrest and release from a police station.  The second is when an accused is brought to court for a Bail Hearing (sometimes referred to as a show cause hearing). 

Undertaking to a Peace Officer or Officer in Charge

A peace officer or an officer in charge of the police station where an accused has been taken has the power (except where charged with certain offences or if they are repeat offenders) to release the accused unconditionally or with specified conditions. 

Some typical conditions

In the case of domestic assaults, the three most common conditions that an accused will have to follow are[5]:

  1. Non-communication with the complainant in the matter.  There may be exceptions for non-communication, the most common being:
    1. Through counsel for the purpose of matrimonial proceedings.
    2. Through a mutually agreed upon adult third party for the purpose of arranging access to the children.
    3. In some cases, via email, text message, our family law wizard, parent briefing book or any form of communication reduced to writing for the purpose of custody and access to the children.
  1. An area restriction, the most common being:

Not to attend with x meters of any residence, place of employment, place of education, place of worship or anyplace you know x Person to be.  Sometimes there may be exceptions for child access, but the general norm is to require exchanges to be done away form the complainant’s residence. 

  1. Prohibition on the accused possessing any weapons as defined by the Criminal Code.  In addition to things that we all recognize as weapons: firearms, ammunition, cross-bows, explosives, etc. The Criminal Code defines a weapon as any object that an accused uses as a weapon (e.g. a kitchen knife used to assault someone).[6]  An accused can use cutlery for eating or knives and saws for work, but if and accused is stopped and those items are found outside the work context, he may be charged with a weapons offence, as well as a breach of release conditions.

In the case of assaults or other crimes of violence such as robberies some common conditions are:

  1. Non-communication with the complainant or other accused in the matter.  There may be exceptions for non-communication, the most common being:
    • Through or in the presence of counsel for the purpose of preparing a defence
  1. An area restriction, the most common being:
  1. Not to attend with x meters of any residence, place of employment, place of education, place of worship or anyplace you know x Person to be. 
  2. To remain away from the area of the city where the offence allegedly took place.
  1. Prohibition on the accused possessing any weapons as defined by the Criminal Code.  In addition to things that we all recognize as weapons: firearms, ammunition, cross-bows, explosives, etc. The Criminal Code defines a weapon as any object that an accused uses as a weapon (e.g. a kitchen knife used to assault someone).[7]  An accused can use cutlery for eating or knives and saws for work, but if and accused is stopped and those items are found outside the work context, he may be charged with a weapons offence, as well as a breach of release conditions.

In cases of frauds or financial crimes, some common conditions are:

  1. Non-communication with the complainant in the matter. 
  2. Not to possess any banking instruments not in your own name.

In addition to other specifically enumerated conditions, an officer can require an accused to, “comply with any other specified condition for ensuring the safety and security of any victim of or witness to the offence.”[8]  This section provides a broad discretion to impose any other condition that is rationally connected to the specific circumstances of an offence or complainant. For example, if the police allege that the offence took place when the accused was intoxicated, a condition to abstain from the purchase, possession or consumption of alcohol or other intoxicants may be warranted.

Bail Hearing:

In certain situations, a bail hearing may be required.  In such cases, an accused will be held in custody until they can be taken to the local courthouse.  The law requires them to be brought to court as soon as practicable, and in any event within 24 hours of their arrest.[9] 

When is a bail hearing necessary?

Some examples of where an accused will be held for a bail hearing are:

  1. If an accused is arrested by warrant and the warrant is unendorsed for release from the station; 
  2. When an accused is at large on a form of release and is alleged to have breached the conditions of his release;
  3. If an accused has a history of offences, especially with the same complainant;
  4. When the allegations are serious, the allegations involve repeated offences over a long period of time, the allegations involve violence and danger of harm or death the injuries are severe or the financial harm.

Sureties

A surety is a person in the community who knows an accused. They are tasked by the court with the following obligations:

  1. Ensuring an accused attends court where and when required;
  2. Ensuring an accused follows the conditions of his release; and
  3. If the accused fails to attend court or follow conditions, they must notify the authorities or the court that the accused is not following their conditions.

Courts in Ontario developed a policy of requiring sureties in every bail release. Additionally, courts would impose conditions which required an accused to reside with their surety in order to provide the surety with the ability to supervise an accused’s activities.  Recent case law and amendments to the Criminal Code are supposed to reduce this reliance on sureties as well as the condition requiring an accused to reside with the surety.

Conditions of release

As with releases from the police station, courts will almost universally impose an area restriction and no-contact/communication orders with the complainant, as well as weapons prohibitions on an accused.  Additionally, since bails are generally used in more serious circumstances and/or with repeat offenders, additional conditions are often imposed, such as curfews  (sometimes even house arrest), requirements for an accused to present themselves to officers for compliance checks, abstentions from alcohol and other more onerous conditions. 

The amendments in Bill C-75 require the court to consider the following factors at subsection 515(3):

(3) FACTORS TO CONSIDER 

In making an order under this section, the justice shall consider any relevant factors, including,

(a) whether the accused is charged with an offence in the commission of which violence was used, threatened or attempted against their intimate partner; or

(b) whether the accused has been previously convicted of a criminal offence.
(Emphasis added)

In addition, where the offence alleged is Criminal Harassment[10] or involves violence against a person, the Criminal Code specifically requires courts to consider whether or not to impose any of the following conditions with respect to the victim, witnesses or other persons specified in the order,[11]

  1. A non-communication condition with the victim or witnesses
  2. An area restriction
  3. Any other condition required to ensure the safety of the aforementioned persons.

In the majority of bail hearings, the prosecutor must justify what conditions to place on an accused or justify why an accused cannot be released and should be detained in custody until trial (sometimes the Courts will refer to this as Crown onus hearing).

Reverse Onus Provisions

On the other hand, in certain bail hearings, the accused must justify why he should be released from custody (sometimes the Courts will refer to this as a reverse onus hearing).  One common situation of a reverse onus hearing is when an accused is on release for an indictable offence[12], and he is alleged to have committed another offence.  Additionally, Bill C-75 specified the following reverse onus hearing[13]

(b.1) with an offence in the commission of which violence was allegedly used, threatened or attempted against their intimate partner, and the accused has been previously convicted of an offence in the commission of which violence was used, threatened or attempted against any intimate partner of theirs;

The definition of intimate partner is being added to the criminal code on December 18, 2019 and is defined as follows:

intimate partner with respect to a person, includes their current or former spouse, common-law partner and dating partner;[14]

Courts have always taken an accused’s record, including whether the previous victim was a current or ex spouse, girlfriend or boyfriend, into account when deciding on whether the Crown has met their onus to justify an accused’s detention or conditions placed on his release.  In light of this, the practical effect of this new reverse onus provision may not be significant. 

Another area of reverse onus is drug trafficking charges.

Changing Conditions of a Bail:

Depending on whether the accused was released from the station on an Undertaking or after a Bail Hearing the process for changing the terms may vary.

With the consent of the prosecutor:

In all cases, release conditions can be changed at any time with the consent of the prosecutor.  If the release is a bail with sureties, an accused must acquire the written consent of the sureties to the proposed change.[15]

Without the consent of the prosecutor:

A.      Where the release is from the police station:

Where an accused is released on an Undertaking, he may apply for a hearing to determine whether the conditions should be changed.[16]  The hearing takes place in the Ontario Court of Justice before either a judge or a justice of the peace.  The hearing can be held as soon as practicable, including the day after the release.  A judge or justice of the peace is bound by the criteria in Antic and the recent amendments in the Code that specify that the least onerous release terms should be imposed.  This type of hearing is particularly useful if the release conditions do not provide exceptions to the no contact provisions to allow arrangements for access to children. 

One note: Often times the aforementioned hearing will take place before the scheduled first appearance and there may not yet be an information before the court.  Sometimes there is a suggestion that a hearing cannot be done before the information is sworn.  That is not the case and the court has jurisdiction to alter the release conditions even in the absence of an information. 

B.      Where the accused is released on bail after a bail hearing:

In the case of a bail, where the prosecutor does not consent to the variation, the only remedy for an accused is to bring a bail review application.  Unlike the situation where the accused is released from the station, bail reviews take place in Superior Court.  The application materials include affidavits and a transcript of the bail hearing from the Ontario Court of Justice.  The review can only occur two clear days after notice is given.  The process is much more involved than the process for reviewing a release from the station.  An accused must show an error in law at the bail hearing or a material change in his circumstances before a Superior Court Judge will order a variation of the conditions.[17]

Conclusion

As mentioned above, bail can have a profound effect on the direction a criminal file can take.  Before running a bail hearing it will be prudent to consult with counsel to ensure that a proper plan is in place to ensure that bail is secured. 

The lawyers at Berkes Law conduct Bail Hearings in Orillia, Barrie, Newmarket, Vaughan, Richmond Hill, Markham, Kitchener, Guelph, Brampton, Mississauga, Hamilton, St. Catharines, Niagara Falls, Toronto, Scarborough, Pickering, Ajax, Whitby, Oshawa, Kingston, Lindsay, Peterborough and elsewhere in Ontario.

* Certified as a Specialist in Criminal Law

[1] R. v. Antic [2017] 1 S.C.R. 509

[2] Section 493.1 unless otherwise noted all section numbers refer to the Criminal Code of Canada. RSC 1985, c C-46.

[3] Section 498(1.1)

[4] The term complainant and victim are synonymous terms.  The code refers to victim in certain contexts.  Generally in a criminal trial, the Courts will refer to Complainant and Accused prior to an adjudication. 

[5] For the list of all conditions, see Section 501(3).

[6] Section 2

[7] Section 2

[8] Section 501(3)(k).

[9] Section 503(1)(a)

[10] Section 264.

[11] Section 515(4.2) a, a.1 and b

[12] An indictable offence includes a hybrid offence before the Crown has registered an election.

[13] Section s. 515(6)(b.1)

[14] Section 2

[15] Section 502(1) for an Undertaking; Section 519.1 for a Bail

[16] Section 502(2)

[17] Section 520