Bail Hearings and the Legal Aspects of Judicial Interim Release

Bail Hearings are arguably the most critical aspect of procedure for most individuals.  The issue of bail can often be the most stressful aspect of a criminal matter. Emotions are often charged and your concerns are amplified. Adopting a rational thought process often prevails. Worrying about the pending charges and whether or not your will be released or detained will NOT improve your likelihood of success. To receive an informed opinion, a criminal defence lawyer ought to be consulted immediately.

Contact Mr. J. S. Patel, Barrister at 403-585-1960. 

General Information about Bail Hearings and Securing Release from Police and Crown Custody

When a person is not released from custody upon being arrested or detained for a criminal, immigration or quasi criminal offence by the Calgary Police Service (CPS), Edmonton Police Service (EPS),  the Royal Canadian Mounted Police (RCMP) or the Ontario Provincial Police, this individual must be brought before a justice (of the peace) or a Judge for a bail hearing within 24 hours or as soon as possible pursuant s. 503 of the Criminal Code of Canada relating to judicial interim release. This person (the accused) must be released on an undertaking without conditions unless the prosecutor “shows cause” why detention or stricter bail is required. s. 515.Where the Crown seeks bail with conditions, or detention, the Crown Prosecutor must “show cause” to the justice why the conditions or detention is required.The court may grant this application if one or more of the three statutory grounds justify detention or the conditions sought:

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  • s. 515(10)(a): the “primary ground” — ensure the accused’s attendance at court;
  • s. 515(10)(b): the “secondary ground” — protection and safety of the public from further crime and witnesses from interference;
  • s. 515(10)(c): the “tertiary ground” — maintaining the confidence of the public in the administration of justice.
According to s.515(1), the primary duty of the justice, if the Crown cannot show that detention is justified or that some other order under s.515 should be made, is to release the accused without conditions, on his or her own undertaking to appear as required: Regina v. Pearson (1992), 77 C.C.C.(3d) 124, 17 C.R.(4th) 1 (S.C.C.). The next “rungs” on the ladder are found in s.515(2). In order, they consist of the accused being released:
  • on an undertaking with such conditions as the justice directs;
  • on a recognizance without sureties, in such amount and with such
conditions, if any, as the justice directs, but with no cash deposit;
  • on a recognizance with sureties in such amount and with such conditions, if any, as the justice directs, but with no cash deposit;
  • with the prosecutor’s consent, on a recognizance without sureties andwith or without conditions, with a cash deposit;
  • where the accused is not ordinarily resident in the province or within 200 kilometres of the place where he is in custody, on a recognizance with or without sureties and with or without conditions, with a cash deposit.
Again, the burden is on the prosecution to show the necessity for any of theseorders; s.515(3) states that the justice shall not make any of the above orders unlessthe prosecution shows why an order under the immediately preceding paragraph shouldnot be made. Finally, one comes to the highest rung on the ladder, where, if the Crownmeets the onus upon it to show that detention pending the trial is required, the accusedwill be detained in custody pursuant to s.515(10). The exception to this rule is when the onus is reversed pursuant to section 515(6)(a). This section places an onus on the accused to show cause why detention is not justified in several circumstances (i.e. being charged with an indictable offence and not ordinarily a resident in Canada, failing to comply while on release, etc.) The Rules of evidence that govern bail hearings is found under section 518 governs. That section indicates that: (a) the justice may question witnesses including the accused;(b) however, no one except counsel for the accused, may question the accused about the underlying offence itself;(c) the Crown may lead evidence of previous convictions, outstanding charges, offences under s. 145 (fail to comply with previous court orders and breaches of the same), and the circumstances and strength of the current charges (i.e. whether the Crown’s case will likely succeed((or fail);(d) the justice may accept admissions agreed on by counsel;(e) wiretap evidence is admissible; and (f) the court may accept credible or trustworthy evidence including hearsay.
In 2017, the Supreme Court reinforced the ladder principle for bail hearings in Regina v. Antic, where it stated the following useful summary of the applicable bail principles that pertain to forms of release available to those in custody: “While a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories. A central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release, which are found in s. 515(1) to (3) of the Criminal Code. Save for exceptions, an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a judge to order a more restrictive form without justifying the decision to reject the less onerous forms. A recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate. It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Cash bail should.”

For a recent article on the requirements for the use of sureties and the “crown onus” circumstances where the Crown needs to establish the basis for the detention for an accused person see:

A Broken Bail System in Canada due to a Crown/Judicial Culture of Risk Aversion through an excessive use of Sureties: In Regina v. Tunney, 2018 ONSC 961, the Ontario Superior Court of Justice at a bail review considered Crown-onus bail hearings and held as follows:

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What decisions are made at the bail hearing

This bail hearing involves a procedure wherein a Provincial Court Judge or a Justice of the Peace will make an informed decision about whether to release the accused individual(s) or hold them in custody pending their trial. By way of general legal information, a detained person, through counsel, ought to consider: (a) the strength of the Crown’s case against the accused or lack thereof;

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(b) the past record of the accused; (c) prior allegations of breaching court orders (including failing to appear for court); (d) the ties to the community; (e) and potential bonds persons (sureties); and (f) the “plan for release”. Each case is different; and accordingly a tailored legal approach is involved in creating any successful plan for release.Upon the entry of a conviction for first degree murder, one is automatically sentenced to a life sentence with no option for parole for 25 years.

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Bail Team – Mr. Patel – Barrister’s Chambers: 403-585-1960

The enclosed article contains general legal information about applications for judicial interim release in Alberta, namely Calgary and Edmonton. Those looking for specific information about a matter that is or about to be brought before the Courts should consult with a criminal defence lawyer immediately.

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This article provides legal information about the above captioned area for offences in Alberta. It is not intended to be used as a substitute for proper legal advice.  To secure such advice on a consultative basis you may contact our offices.

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Can I speak to the Police myself to negotiate my release?

While you may absolutely represent yourself, we do not recommend it. We appreciate thisis often cost driven consideration (i.e. legal fees).Judicial Interim Release Applications (bail hearings) are of paramount importance in the criminal justice system. Studies have revealed, simply put, that those denied bail tend to gravitate towards guilty pleas resulting in deleterious consequences and unwarranted prison terms

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(see: and It is simply not worth undertaking such a risk. Moreover, accused persons often feel that they need to communicate to the police with a view to pleading to their own innocence. We do not advocate this approach. Subject to the rules of admissibility and voluntariness of statements; or the application of the Canadian Charter of Rights and Freedoms (the “Charter“), statements made by an accused person to the police or others in a position of authorities while being detained prior to such a bail hearing will often be used by the prosecution in furtherance of establishing guilt. Moreover, an experienced criminal defence lawyer will be able to assess the strengths and weakness of a crown case at first glance. As this is a factor that the judge would consider when releasing an individual, it is prudent to allow a lawyer to make such submissions. Thus, it is important that you or a family member to contact a Criminal Defence Lawyer immediately to be advised of you rights.

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Recent Developments in the Law concerning Bail

The Supreme Court of Canada in Regina v. St. Cloud wherein the Court considered the scope of the territory Court  to consider  bail eligibility in light of current bail principles (as delineated above).   As stated above, there are three (3) grounds that are potentially considered in a bail application.   The first ground, referred to as primary ground, which is focused on compelling the attendance of an accused person to appear in court.

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The seminal query is whether a person is a flight risk.   The secondary ground focuses on public safety, including the likelihood the accused may reoffend whilst on bail.  The case-law suggest that the standard to be levied by the Court is whether there is a substantial danger that the accused person will re-offend.  The third ground is the  the tertiary ground.  The tertiary ground considers whether  or not the release of the accused will compromise confidence in the administration of justice.  This is a contentious issue.  Prior Supreme Court of Canada jurisprudence had, with respect, created some unclarity consider the scope of it’s application.  In Regina v. Hall, [2002] 3 SCR 309, yielded multiple interpretations, i.e.. that it should only be applied in exceptional circumstances such as a homicide or major sexual assault.  Another view was the the third ground should be accorded equal weight as the other two (2) grounds.  In Regina v. St. Cloud, the Supreme Court of Canada agreed that with this second approach. In terms the it’s ramifications on an application for Bail Review, the Court in  St. Cloud ruling states that in reviewing a bail appeal, a judge cannot exercise unbridled discretion.  The Court can only  intervene relative to an underlying bail decision in circumstances where: (a) new evidence is tendered, (b) an error of law was made, or (c)  where the decision of the previous judge was inappropriate. The St.-Cloud decision may be read in full at the Court’s site:  
2017 SCC 27 (CanLII)
be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. The judge is under a positive obligation to inquire into the ability of the accused to pay. Terms of release under s. 515(4) should only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must not be imposed to change an accused person’s behaviour or to punish an accused person. Where a bail review is requested, courts must follow the bail review process set out in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

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Contact a Criminal Defence Lawyer to assist you with your bail hearing immediately: 403-585-1960

To receive a free telephone consultation, call Mr. J.S. Patel, Barrister at our emergency numbers: 403-585-1960 or 1-888-695-2211 and leave a confidential voice message. Someone will return your call as soon as possible to discuss your options. If we are unable to assist you, we will direct you to our network of criminal defence lawyers (who specialize in bail) who may be in a position to assist and act, if retained.  

Criminal bail hearings, Bail at Appeal,
Bail Hearings, Bail Pending Appeal, Criminal Bail Hearings, Urgent Criminal Defence Lawyers, call Mr. J.S. Patel, Calgary Criminal Lawyer at 403-585-1960.

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