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What is a Bail Hearing?

A Bail Hearing is arguably the most important phase of a criminal case.  A Bail Hearing is court proceeding in which a Judge or Justice of the Peace will determine whether you should be released from custody or be detained pending the completion of your case.  If you are denied bail you could spend many months, if not years, in jail as your case proceeds.

Section 11(e) of the Charter states:
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;

The Canadian constitution contains many provisions which safeguard our individual freedoms.  The presumption of innocence. The right to a fair trial. The right to reasonable bail. It is generally seen as unfair and cruel to deprive an individual of their freedom prior to conviction.  Section 11(e) of the Charter guarantees everyone the right to liberty prior to conviction, unless the crown attorney can establish just cause.  Just cause simply translates to justifications for detention. In Canadian criminal law there are three justifications a crown attorney may use in a bail hearing to detain an individual:

Primary Grounds – the person might abscond or flee the jurisdiction;
Secondary Grounds – the person presents a danger to public safety;
Tertiary Grounds – the person’s release would erode public confidence in the justice system.   

The second component of section 11(e) provides every individual with the right to a reasonable bail.  This means that the financial quantum of the bail and any conditions of release ascribed to it must not cause undue hardship or generally be unfair to the defendant and/or any sureties.  A simple example of an unreasonable bail would be a house arrest condition for a first offender charged with shoplifting $50 worth of merchandise.

During a Bail Hearing a crown attorney may elect to call witnesses to demonstrate that a person should be detained.  The most common witness that a crown attorney will call in this scenario is the officer-in-charge of the case. The defence also has the right to call witnesses to make a case for the person’s release.  The most common type of witness called by the defence during a Bail Hearing is called a Surety.

What is a Surety?

A surety is an individual that is willing to come to court for a defendant to increase the likelihood of their release.  A surety’s job is to supervise the accused person, ensure their attendance in court and to ensure compliance with any conditions or restrictions that may be ordered by the Court.  These conditions may include: not attending certain places, not contacting certain people and abiding by a curfew or house arrest. Generally speaking, proposed sureties are individuals that have a close relationship with the accused – be it a parent, sibling, friend or significant other.  A surety must promise to pay a certain amount of money to secure the release of an individual. If the defendant is released and breaches his/her bail conditions, the crown attorney may take the surety to court in Estreatment proceedings, which can result in the loss of the financial amount pledged.  

Being a surety is serious business.  The ideal surety does not have a criminal record, is not acting as a surety for anybody else and was not involved in the criminal allegations before the Court.  An experienced criminal lawyer will interview and prepare potential sureties for the Bail Hearing to ensure the best possible chances for a release order.


If the defence is successful in securing the release of an individual following a Bail Hearing, the Judge or Justice of Peace must consider several forms of release.  As the benefit of any doubt belongs to the accused in a criminal proceeding, the presiding justice must employ the ‘ladder principle’ and order the least restrictive, most reasonable release possible.  The forms of release following a successful Bail Hearing are:

– Undertaking;
– Recognizance without Sureties/Deposit;
– Recognizance with Sureties and without Deposit;
– Recognizance with Deposit.

Failure to comply with the conditions of an Undertaking or Recognizance is a serious offence that often results in jail time and/or a criminal conviction.  My advice is if you get bail, obey it!


If the defence loses a Bail Hearing the defendant will be detained in custody pending the completion of their case.  There are many factors which may result in a detention order, which include: a criminal record, a history of breaching court orders, the seriousness of the offence(s) and unsuitable sureties.  

If someone you care about has been detained following a Bail Hearing, you should contact a criminal lawyer immediately to explore the possibility of a Bail Review in the Superior Court of Justice.  This an application (most commonly brought by the defence) that asks a higher court to review the detention order and if necessary, replace it with one of the many forms of release. To win a Bail Review, a criminal lawyer must establish that there was an Error of Law during initial bail hearing, and/or that there has been a material change in circumstances in relation to the matter. 

There is no substitute to having an experienced criminal lawyer on your side to ensure the best possible chance of a release following a bail hearing.  If you or a loved one have been charged with a criminal offence, call 416-428-2760 to schedule a free consultation with Michael.


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