Backgrounder: The Bail Process

Canada’s bail system promotes public safety, maintains confidence in the administration of justice, and ensures respect for the Canadian Charter of Rights and Freedoms. It is an important component of the criminal justice system.

Learn more about how our bail system works below.

On this page

• What is bail and what is its purpose?
• What the Charter of Rights and Freedoms says about bail
• Bail is a shared responsibility
• What the Supreme Court of Canada says about bail
• How bail functions under the Criminal Code
• Bail conditions upon release

1. What is bail and what is its purpose?

Bail is when a person charged with a criminal offence is released from custody while awaiting their trial. An individual can be released with or without conditions that they must follow during their release. Not everyone who is charged with a crime receives bail; some must remain in custody until a court determines if they are guilty of a crime.

The Charter of Rights and Freedoms includes a right to reasonable bail, unless there is just cause.

Today, the law of bail, as outlined in the Criminal Code, has three main purposes:

1. to ensure those charged with an offence appear in court when required
2. to maintain public safety by assessing and managing any potential risks if an accused person is released
3. to maintain the public's confidence in the justice system

When police detain an accused person, the decision to grant bail is made by a judge or justice of the peace at a bail hearing. These are legal proceedings where the court (judge or justice of the peace) determines whether a person should be granted bail or detained in custody until the conclusion of their trial, based on the considerations set out above.

Persons who are released on bail are usually subject to conditions of release that are tailored to their specific situation and/or case.

2. What the Charter of Rights and Freedoms says about bail

Under the Charter, all accused persons have the right to liberty and are presumed innocent until they are proven guilty. This means that an individual charged with an offence has the right not to be denied reasonable bail without just cause.

Canada’s criminal laws reflect this. “Just cause” requires consideration of whether detention is required to make sure the accused comes to court, or to keep the public, including victims, safe or to maintain the public’s confidence in the administration of justice.

3. Bail is a shared responsibility

Canada’s criminal justice system is a shared responsibility between the provinces and territories and the federal government. The federal government is responsible for enacting criminal law and procedure, including the Criminal Code provisions that govern the law of bail. The Public Prosecution Service of Canada prosecutes criminal offences in the three territories.

Provincial governments are responsible for the administration of justice. The provinces are responsible for prosecuting most criminal offences, conducting bail hearings, enforcing any conditions attached to a person who has been released on bail, including if there is a breach of bail conditions and administering remand facilities, where accused persons are held when denied bail.

Federal, provincial and territorial governments continue to collaborate on ways to strengthen the bail system, including through the collection and analysis of bail data.

4. What the Supreme Court of Canada says about bail

The Supreme Court of Canada (SCC) is the highest court in Canada. Its decisions have the utmost importance in Canadian law and ensure that laws enacted by Parliament, including the Criminal Code, respect the Charter.

The SCC has provided significant guidance on bail and relevant Charter considerations.

The SCC noted in the St-Cloud (2015) decision that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.”

In the Antic (2017) and Zora (2020) decisions, the SCC ruled that for most alleged crimes, release on bail at the earliest reasonable opportunity with minimal conditions is the default position.

Canada’s bail laws do not mandate release, however, and detention is still allowed where it can be established that there is “just cause” for it and there are no appropriate other ways of addressing risk if the accused is released, such as risk of flight or public safety risk, or where public confidence in the administration of justice would be undermined.

5. How bail functions under the Criminal Code

What is the procedure for bail following arrest?

Role of Police

After arresting an individual for a criminal offence, police officers also have the authority, in most cases, to either detain or release an accused person charged with an offence.

In cases where it is permitted, a police officer may release an accused person with or without conditions, so long as the accused person is aware that they must appear in court later to respond to their charges.

Police are required to detain an accused person if they believe it is necessary to protect the safety of the public or that there is a risk of the accused person re-offending.

For a number of serious offences, such as murder, a police officer cannot release an accused but rather must bring them before a court for a bail hearing.

Bail hearing

A bail hearing is where a judge or justice of the peace decides, based on the evidence and submissions of the parties, whether to detain or release the accused, with or without conditions.

The court considers available information against the three grounds of detention: (1) to prevent flight risk; (2) to protect public safety; or, (3) to maintain confidence in the administration of justice.

Relevant information can include the seriousness of the charge, whether it involved violence, weapons or firearms, and specific details about the accused, including their past criminal behaviour.

Denial of Bail

The Criminal Code sets out the three grounds upon which an accused may be denied bail:

1. To ensure the accused will attend court when required (referred to as the “primary ground”)
2. To protect the public, victims and witnesses, including by considering whether there is a likelihood that the accused will commit another offence or interfere with the administration of justice if released from custody (referred to as the “secondary ground”)
3. To maintain confidence in the administration of justice, bearing in mind specific circumstances such as the strength of the prosecution’s case, the seriousness of the offence, the potential for a lengthy sentence if convicted, and if the case involved a firearm was used (referred to as the “tertiary ground”)

The burden of proof or “onus” in bail proceedings

The general rule is that when a Crown prosecutor seeks the detention (denied bail) of an accused person, they must demonstrate to the Court that there is just cause (sufficient reasons) to detain the accused.

This is referred to as the “onus”, meaning that the Crown has the responsibility to show that the accused should not be granted bail. The Crown is required to show cause under one of the three grounds mentioned above for an accused to be denied bail.

However, the Criminal Code also provides that in some cases, such as in organized crime, terrorism, certain offences involving firearms and cases involving repeat violent offending, the accused must show why they should be granted bail. This is referred to as a “reverse onus”. In a reverse onus situation, an accused must be detained while awaiting their trial unless they can demonstrate to the court that they should not be denied bail by showing that there is no just cause for their detention. A reverse onus demonstrates Parliament’s intention that bail should be more difficult to obtain.

6. Bail conditions upon release

When an accused person is released on bail, the court can impose conditions that they must follow. The purpose of imposing conditions is to address risks posed by the accused, including to ensure they do not commit new criminal offences while awaiting trial.

a. What types of bail conditions can be imposed?

Examples of conditions that may be imposed include:

• Attend court as directed
• Report to a peace officer
• Remain within a particular territorial jurisdiction
• Notify any change of address and employment
• Deposit a passport to prevent travel
• Have a surety (a person who agrees to act as the accused’s supervisor while they are released in the community, and a person they may be required to reside with at a certain address)
• Do not possess or use a device capable of accessing the internet
• Be under house arrest and/or keep a curfew, except with written permission from a designated person, such as a probation officer or a surety, who is tasked with supervising the accused while out on bail
• Wear electronic monitoring equipment, such as an ankle bracelet

To address public safety concerns, there are certain circumstances when the court must impose, or consider imposing, specific conditions, including:

• a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, or all those things, unless the court considers that such a condition is not required in the interests of safety of the accused or the safety and security of a victim or any other person
• whether it is desirable or not to order that the accused not communicate with any victim, witness or other person identified in the order
• whether it is in the interests of the safety and security of a victim, witness, justice system participant, or any other person, to include a condition that the accused refrain from going to any place specified in the order (for example, where the offence occurred and/or a victim is living)

b. What are the consequences of not following bail conditions (a breach of conditions)?

An accused person who breaches their bail conditions can have their bail revoked. If an accused breaches their conditions, they may be detained and then must return to court to establish why they should not remain in custody until their trial. A bail breach can often result in a new criminal charge for that breach and make it more difficult for that person to receive bail in the future. The provinces and territories are responsible for monitoring compliance with bail conditions, as part of their responsibility for the administration of justice.