Bail is written permission from a court, allowing a person charged with a criminal offence to be out of jail while they wait for their trial, or some other result in their case (such as a guilty plea or a withdrawal of their charges).
First, the Crown presents the allegations to the court. Most of the time, the Crown will do this by reading out the allegations found in the police synopsis. In some cases, the Crown will present the allegations by calling a witness (or witnesses) to testify in court. This witness will usually be the police officer in charge of the investigation.
After the allegations have been presented by the Crown, the accused’s lawyer or duty counsel has a chance to present evidence. In most cases, the accused’s lawyer or duty counsel does this by having the accused or a potential surety (or both) testify. In some cases, there will be more than one potential surety called as a witness. The accused’s lawyer or duty counsel will try to convince the court that, if released on bail, the accused will obey their bail conditions, either on their own or with the assistance of a surety (or sureties) to supervise them.
When both sides are finished giving their evidence, they make arguments to the judge or justice of the peace. The judge or justice of the peace then decides to either release the accused on bail or keep them in jail while they wait for their trial or some other result (such as a guilty plea or a withdrawal of their charges).
The police look at different factors in deciding whether to release an accused or bring them to bail court. For example, they might look at whether the accused has a criminal record, how serious the charges are, if the accused is already facing other charges at the time of their arrest, or whether there are reasons to believe the accused won’t show up for their court date. The police will consider these things when deciding whether to release the accused or take them to bail court. If the police decide to take the accused to bail court, this is usually called “holding them for bail” or “holding them for show cause.”
No. In some cases, the Crown will have to show why the accused should not be released on bail. It depends on what the accused is charged with, and other factors, such as whether they were out on bail for other charges at the time of their arrest.
A surety’s basic responsibilities are to:
Make sure the accused attends court when they are supposed to
Make sure the accused follows the conditions of his or her bail
Read more about the responsibilities of a surety.
In some cases, the accused will have to deposit money with the court in order to get out on bail. If the accused:
does not live in Ontario
or lives 200 km or more from the place they are in jail;
it is likely that they will need to deposit cash with the court in order to get out on bail.
However, in most courthouses, it is more common for the accused and/or his or her surety to promise an amount of money to the court without actually depositing it. This promise of money is called a “recognizance.” If the accused breaks one of his or her bail conditions, or doesn’t show up to court when they’re supposed to, the accused and/or his or her surety can lose some or all of the money they promised to the court by signing the recognizance.
Bail conditions are rules that the accused has to follow while they are out on bail. The conditions will vary, but they will be related to the charges the accused is facing.
For example if the accused is charged with assault, the conditions will likely include:
Not to contact the alleged victim;
Not to go to the alleged victim’s home, workplace or school;
Not to have any weapons (e.g. guns, knives etc.)
If the accused is released on bail with a surety to supervise them, they sometimes have to live with their surety.
Every accused who is released on bail will have a condition that they must attend court when required.
Yes. This is what is called a “bail variation”. However, variations can only be done if the Crown agrees to the change, or if the accused applies to a higher court for a review and that court orders the change. An accused should speak to his or her lawyer or duty counsel if they want to have bail conditions changed.
What are some of the things that a judge or justice of the peace will look at in deciding whether to let an accused out on bail?
The decision of whether or not an accused gets out on bail will be based on all relevant facts, but most times the court will look at things like:
The accused’s criminal record (if any)
The seriousness of the charges
The ability of the surety to supervise the accused (if applicable)
Protection of the public or the alleged victim
The likelihood that the accused might commit further offences if released
The age and personal life situation of the accused
This is not a complete list. Not all factors will be looked at in each case. Different things will be important in each individual case.
An accused is allowed to seek a review in a higher court if they are not successful in getting out on bail. This is called a bail review. The accused’s lawyer or duty counsel can explain this process.
Generally speaking, with a few important exceptions, the same process applies.
However, there are some important differences, including:
If a youth accused is not granted bail, the court can place them in the custody of a “responsible person” if one is available. This option is not available to adults.
If a youth accused is not released on bail by a justice of the peace, they can have a new bail hearing in front of a judge. If they also fail to get bail from that judge, then, just like the adults, they may go to the higher court for a review of the decision.
This is not a complete list of differences between bail for youth and adult accused persons. Youth accused should speak to a lawyer or duty counsel about their bail options. Or for more information about youth bail, see the Government of Canada's Justice site.
Yes. The Crown is also allowed to ask a higher court to review the decision of a judge or a justice of the peace to release an accused on bail.
If an accused is released on bail, the bail conditions are not just in place until they make their first appearance in court. The conditions are in place until the case comes to an end, either by a trial or by some other result. This may take several months or longer.
Yes. In some cases an accused can get out on his or her “own bail” without a surety. For this to happen, the accused may be have to report regularly to the police, or to another organization, such as:
These organizations can offer an accused supervision in situations where they might not be able to find a family member or a friend to be a surety. There may also be other organizations in the courthouse that offer similar services.
The role of the accused’s lawyer or duty counsel is to protect the accused’s rights and interests. In most cases, this means trying to convince the Crown to recommend a “consent release” to the court.
If there is no “consent release” and a bail hearing is held the accused’s lawyer or duty counsel will present evidence and make arguments to the court about why the accused should be released on bail.
The Crown’s role is to represent the interests of the general public. They will tell the judge or justice of the peace what the allegations and charges against the accused are, and they will either recommend that the accused be released on bail, or they may oppose his or her release. If they recommend relase, this is usually called a “consent release,” and the judge or justice of the peace will usually release the accused on the conditions recommended by the Crown. However, the judge or justice of the peace always has final say. If the Crown opposes releasing the accused, then there will be a bail hearing.
The judge or justice of the peace will listen to the evidence and arguments presented by both the Crown and the accused (through his or her lawyer or duty counsel), and then make a decision on whether the accused should be let out on bail or not. In bail court, as in other courts, the judge or the justice of the peace is often called “the court.”
In some cases, the Crown will recommend to the judge or justice of the peace that the accused should be released on certain terms or conditions. This is usually called a “consent release.” In other cases, the Crown will not recommend a release and a bail hearing will be held. In all cases, the judge or justice of the peace has the final say on whether an accused is released on bail or not.
When someone is arrested and charged with a criminal offence , they may be released if they sign a form saying they promise to attend court on the date given to them by the police.
If the police do not release them, the person who has been charged (who is called the accused) will be taken to court where a decision to release them or not will be made. In some cases, a bail hearing, which is like a short trial, is held and a judge or a justice of the peace decides whether the accused will get out on bail.