Understanding Judicial Interim Release (Bail)

Understanding Judicial Interim Release (Bail)

A plain-language guide to your rights, how bail works in Canada, when it can be denied, and what to expect at a bail hearing.

If you are held in custody after being charged with a criminal offence in Canada, one of two things can happen. Police can release you on either a promise to appear in court or a recognizance. However, if investigators believe there is a reason for you to be held in jail pending your trial, you can expect to appear for a bail hearing.

Bail is officially known as a judicial interim release, which is an order that releases you from custody until your trial. You have the right to a bail hearing under the Canadian Charter of Rights and Freedoms. Just as significantly, provisions in the Criminal Code state that you are entitled to a bail hearing within 24 hours of being arrested or “as soon as possible” if a justice is not immediately available.

It is important to remember that anyone accused of a crime in Canada is presumed innocent until proven guilty. That presumption begins with your arrest and carries through to the conclusion of your case.

The Department of Justice notes that the Supreme Court of Canada has ruled that “the release of accused persons is the cardinal rule and detention, the exception. To automatically order detention would be contrary to the ‘basic entitlement to be granted reasonable bail unless there is just cause to do otherwise.’” Further, section 11(e) of the Charter protects accused persons from unreasonable terms and conditions of bail.

Your Right to Reasonable Bail 

Canada’s top court has stated “the right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system.”

In R. v. Antic (2017), the Supreme Court reshaped bail practices across Canada. The Court directed judges to apply a ladder principle, starting with the least restrictive release (such as an undertaking without conditions) and only moving to stricter conditions if necessary to address risks. One of the guiding principles of this decision is that monetary conditions like cash bail should be a last resort.

When Bail Can Be Denied 

An interim release can still be denied. Section 515(10) of the Criminal Code outlines three grounds:

• Detention is necessary to ensure attendance in court
• Detention is necessary for public safety, considering risk of reoffending or interference with justice
• Detention is necessary to maintain confidence in the administration of justice, considering the seriousness of the offence and potential penalties

What Is a Reverse Onus Bail Provision? 

Typically, the Crown must show why an accused should not be granted bail. However, in certain cases the burden shifts to the accused — this is called reverse onus.

Reverse onus applies to situations such as:

• Murder or attempted murder
• Committing an indictable offence while already on bail for another indictable offence
• Drug trafficking, importing, or exporting
• Weapons trafficking or serious firearm-related offences
• Terrorism and organized crime charges
• Re-offending while already on bail
• Offences involving violence against an intimate partner with prior convictions
• Other serious indictable offences punishable by 10+ years’ imprisonment with use of a weapon

What to Expect at a Bail Hearing 

A bail hearing is not a trial. No determination of guilt or innocence will be made. Instead, the purpose is to decide whether you should be released pending trial.

Bail hearings may take place in person, by videoconference, or by telephone. You will appear before a provincial court judge or a justice of the peace. 

Unless it is a reverse onus situation, the Crown must show cause why you should remain in custody. They may introduce evidence such as:

• A summary of the allegations
• Your prior criminal record (if applicable)

You will also have the chance to present evidence. If denied, you will remain in custody until your trial unless you appeal and are granted another hearing.

Conditions of Release 

If bail is granted, the court may impose conditions under the ladder principle. Examples include:

• Attending court as directed
• Reporting to a peace officer
• Remaining within a certain jurisdiction
• Staying away from specific locations or individuals
• Surrendering a passport
• House arrest or curfew
• No contact with victims or witnesses
• Electronic monitoring
• Having a surety (a person who supervises your release)

The more risk the court perceives, the stricter the conditions may be.

Why Legal Representation Matters 

You are not legally required to have a lawyer at a bail hearing, but it is strongly recommended. You only have one opportunity to convince the court you deserve release.

A criminal defence lawyer can:

• Protect your rights during the hearing
• Argue for fair and reasonable release conditions
• Help you avoid conditions that may be difficult to follow
• Advise you on how to comply with your release terms

We Will Protect Your Rights 

At Cambria Law, we stand by our clients in bail hearings across Edmonton and Northern Alberta. We work to protect your liberty and ensure you are treated fairly under Canadian law.