What Happens at a Bail Hearing?

In Canada, under the Canadian Charter of Rights and Freedoms, individuals arrested and charged with a criminal offence have the constitutional right not to be denied reasonable bail without just cause. This is grounded in the principle of presumption of innocence—until proven guilty, a person charged with criminal offences should not be automatically detained. However, this doesn’t mean every arrested person is automatically released. Most bail hearings happen within 24 hours of an arrest, where the judge or justice of the peace will weigh the Crown prosecutor’s concerns about the risks of releasing the accused.

The hearing begins with a Crown counsel or police officer presenting details about the alleged crime to the court. The judge or justice will consider whether the individual can be released on bail or should be held in custody. This is called a judicial interim release, the formal legal term for bail.

At the heart of every bail hearing is the balancing of potential competing interests—the rights of the accused and the protection of the public. The Crown prosecutor must argue why the accused should remain in custody or suggest bail conditions to mitigate any risks. On the other hand, the defense, usually a criminal defence lawyer, presents reasons why their client should be granted bail and outlines a bail request with conditions that protect public safety and ensure the accused will attend future court dates.

There are three grounds on which a person can be denied bail and held in custody rather than being released, with or without court ordered conditions:

• Primary Ground: Will the accused attend court as required? If the person has a history of skipping court or breaching court orders, the judge may consider them a flight risk and deny bail.
• Secondary Ground: Does the accused pose a risk to public safety? This comes into play when the person charged has a criminal record or the alleged offence is severe, such as sexual assault or aggravated assault.
• Tertiary Ground: Is releasing the accused detrimental to public confidence in the justice system? In cases involving serious crimes or when the evidence presented by the Crown is strong, bail may be denied to maintain confidence in the administration of justice.

The Crown prosecutor represents the public’s interests, often arguing against releasing the accused if they are considered a risk. They may point to criminal history, the nature of the alleged crime, or even community outrage to justify their concerns. The prosecution’s case aims to show just cause why the person should be detained or released under restrictive conditions. This might include presenting further evidence to suggest the accused could reoffend or fail to appear in court.

Conversely, the criminal defence lawyer works to secure release for the accused. They may propose a plan to address the Crown’s concerns while reassuring the court that the accused will follow the rules if released. Part of this plan could involve a surety—an individual who agrees to supervise the accused and ensure compliance with bail conditions, such as a curfew or house arrest.

If the judge decides to grant bail, they issue a release order detailing the specific conditions that must be followed. These can range from simple conditions like reporting regularly to a bail supervisor, to more serious ones like surrendering a passport to prevent leaving the country. The accused person must strictly comply with these terms to avoid being charged with breaching bail conditions, which can lead to a new arrest and bail being revoked.

The consequences of breaching bail conditions in BC are significant. If an accused breaches the conditions imposed upon them—whether it’s failing to attend court, violating curfew, or contacting someone they were ordered not to—there are severe repercussions. The bail order canbe revoked, leading to re-arrest. Breaching conditions is itself a criminal offence, and the accused person may face additional charges. This can also damage the individual’s ability to obtain bail in the future, as the court will be far less inclined to trust them.

Breaching bail conditions can have immediate consequences for any financial resources tied to bail. If a surety was involved, that person might lose the money they pledged or face other legal consequences. This makes it essential to adhere to every condition set by the court.