- 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.