The Right to Reasonable Bail

According to Section 11(e) of the Canadian Charter of Rights and Freedoms, “Any person charged with an offence has the right not to be denied reasonable bail without just cause.” This right is one of the most important and crucial steps used for criminal proceedings. In the event bail is denied, the person is detained in custody, either pending an appeal for bail, or until their case is completed.

Being released on bail or being denied bail often makes a big difference in how one can prepare their defence to their criminal charges. If you, a loved one, or family member has been arrested and needs immediate assistance in obtaining bail, Passi & Patel’s criminal lawyers are available 24 hours a day to provide help and will take all the necessary steps required to ensure the person is released.

What Is a Bail Hearing?

In some cases, the bail hearing will not occur in court, but at a police station, where the police have been given authority to offer bail based upon the type of criminal offence. Otherwise, if the police lack the authority to offer bail, the bail hearing is conducted in front of a justice of peace or judge to determine whether an accused should be released from custody, pending the outcome of their case. For most criminal offences, the bail hearing is a mandatory process.

The Crown prosecutors must demonstrate and show reasonable cause to the judge and court why the accused should not be released and held in custody. For more serious offences, and in cases where the accused was already released on bailed, the hearing could be considered a “reverse onus” bail hearing. This type of hearing is where the accused has to demonstrate to the court why the judge should grant them bail and release them from custody.

The Criminal Code of Canada and Bail

Section 515 of the Criminal Code of Canada contains a host of relevant considerations in regards to bail and the bail hearing process. Before a person, who is currently being held in custody, can be released, there are numerous factors which are taken into consideration.

First, the court has to determine whether the Crown or the accused is considered the “onus.” The “onus” is the party, who is responsible for demonstrating why or why not bail should be granted. In the majority of cases, the Crown will be tasked with carrying the “onus.” However, as mentioned above (“reverse onus”), there are situations where the accused will be tasked with the “onus” and have to demonstrate and justify to the court why they should be released.

Section 515 (10) details three specific ground under which the accused could potentially be detained and not granted bail. These three grounds are referred to as the Primary, Secondary, and Tertiary Grounds.

Primary Ground

The Criminal Code of Canada, Section 515 (10a) allows the detention of a person is justified, “where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to the law.” What this means is a person can be denied bail if the court feels the person could potentially be a flight risk and attempt to leave the court’s jurisdiction, Ontario, or Canada.

Secondary Ground

The Criminal Code of Canada, Section 515 (10b) states detaining a person might be justified, “where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstance including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.”

In other words, the Secondary Ground evaluates the likelihood of whether a person will potentially commit additional criminal offences if they are released on bail, or if they could potentially tamper with evidence or witness related to their current criminal charges.

Tertiary Ground

The Criminal Code of Canada, Section 515 (10c) provides justification to detain a person, “where the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

  1. The apparent strength of the prosecution’s case,
  2. The gravity of the offence,
  3. The circumstances surrounding the commission of the offence, including whether a firearm was used, and
  4. The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.”

It is worth noting Tertiary Ground is not used that frequently and is only used in a specific set of circumstances, such as in more serious criminal offences, like firearms, large scale drug enterprises, and homicides. Cases which invoke Tertiary Ground, are considered very serious, as defined by the law, and require the prompt assistance of an experienced and skilled criminal defence lawyer.

What Is a Surety and Why Is One Required for Bail?

When the court grants an accused person bail, the court often requires a surety. A surety is normally a family member or friend, with a close relationship with the accused person. The surety is required to undertake the supervision of the accused person while they are released on bail. In addition, the surety can be required to provide the court with a specified amount of money or equivalent cash surety as collateral for the accused person’s release.

The main reason a cash surety or monetary deposit is required is to further enforce the terms and conditions of being released on bail are adhered to, such as attending all court hearings. The surety is also tasked with reporting to the police if the accused person fails or violates and of the terms and condition of their release while out on bail. Sureties are often the determining factor, as to whether the accused is granted bail, and play a rather important role in the bail hearing process.

Can I Be a Surety?

In order to be a surety for an accused person, there a specific requirements you must satisfy, including:

You may not be a surety for more than one person at a time.

You have to be either a landed immigrant or a Canadian citizen.

You should not have a criminal record.

For more information about being a surety, please review the following information, provided by the Ontario Ministry of the Attorney General:

http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/sureties.php

What Are the Terms and Conditions for Bail?

The terms and conditions for bail can vary from one case to the next. They are essentially the rules one must adhere to once they are released on bail. Some of the more common terms and conditions for bail are:

  • Not leaving the court’s jurisdiction, Ontario, or Canada.
  • Maintaining residence at a specific address.
  • Surrendering your passport.
  • Not communicating with specific individuals, such as witnesses and/or victims
  • Reporting to the police as required – weekly, monthly, and so on.
  • Abiding by a curfew.
  • Keeping the peace and adhering to all laws.
  • Being on good behaviour and not committing any further criminal offences.
  • Not possessing any weapons.
  • Refraining from the consumption of alcohol and/or drugs.
  • Not sitting in the front seat of a motor vehicle.
  • Staying away or not attending certain places and specific addresses.

If an accused person fails to follow one or more of the terms and conditions of their release from custody, they could be arrested and charged with “Failure to Comply.” Then, they are brought back to court for a new bail hearing. A “Failure to Comply” offence is a serious matter, and the courts view this offence as a breach of a court order.


At this point, the court reserves the right to revoke their prior bail and detain them in custody pending the outcome of their case. As an alternative, the court could decide to grant a new release, but impose much stricter terms and conditions. In addition, the surety could potentially lose the cash surety or monetary deposit they provided the court for the initial bail release.

Why Should You Retain Passi & Patel Criminal Lawyers for Bail Hearings?

As experienced Mississauga criminal lawyers, Passi & Patel recognize and understand the bail process is the most important step in defending against criminal charges. If a person is currently being held in custody, we will ensure we will obtain a bail hearing for the person, as soon as possible, in order to minimalize the amount of time they spend in jail.

Additionally, after an accused person is released, we attempt to mitigate the number of unnecessary and strict terms and conditions for bail by either getting them omitted or kept to a minimum. Strict conditions restricting a person’s movements, like curfews, house arrest, and reporting to the police, often impact their family life and employment. Our Mississauga criminal lawyers, here at Passi & Patel, will do whatever they can to ensure your release from custody is not overly burdened with restrictive and unnecessary terms and conditions.

Preparation of the surety is key to achieving the best results for a bail hearing. Our Mississauga criminal lawyers help prepare your surety prior to the bail hearing, by making them aware of the types of questions the Crown and judge might ask them and how to respond. We realize the courtroom can be rather intimidating, not only for the accused, but also their surety. Our goal is to minimize and reduce anxieties and fears with extensive preparations.

As experienced and skilled Mississauga criminal lawyers, we will guarantee your bail hearing proceeds as smoothly and with the best results possible. Contact our Mississauga law firm today at 647-898-8018 for a free, no obligation consultation.

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