Bail Hearing

When an individual is charged with a criminal offence, they are presumed innocent until proven guilty. This fundamental presumption of innocence safeguards the liberty of the accused throughout the pretrial process and remains in effect unless and until the person is found guilty either through a trial or a plea agreement.

“We Stand With Individuals Facing Criminal Charges Who Deserve A Fair Chance At Freedom. At Csn Law, We Act Fast, Build Strong Arguments, And Fight For Your Release—because Every Moment Of Liberty Matters.”

Section 11(e) of the Canadian Charter of Rights and Freedoms specifically addresses the right to reasonable bail. It provides that: 

11. Any person charged with an offence has the right:

(e) not to be denied reasonable bail without just cause. 

One of the most important initial steps in the criminal justice process is determining whether and how they will be released from custody while awaiting trial.  In Canadian law, the general principle is that an accused person should be released on bail, and pretrial detention is considered the exception rather than the norm. Section 11(e) of the Charter ensures that bail conditions must be individualized, proportionate, and directly related to the risks posed by the accused. Overly broad or unreasonable bail conditions undermine this right and may be subject to judicial scrutiny. 

The Criminal Code of Canada, under Section 515(10), outlines the three grounds on which bail may be denied:

• Primary Ground: To ensure the accused’s attendance in court.
• Secondary Ground: For the protection or safety of the public, including potential witnesses.
• Tertiary Ground: To maintain confidence in the administration of justice, considering factors such as the gravity of the offence, the strength of the Crown’s case, and the potential for a lengthy term of imprisonment.

In most bail hearings, the burden is on the Crown to justify why an accused should either be denied bail or subjected to specific conditions. However, in certain prescribed circumstances, known as reverse onus situations, the roles are reversed: the accused must demonstrate why they should be granted bail. These situations are enumerated under Section 515(6) of the Criminal Code and typically involve more serious offences, such as those involving firearms, drug trafficking, or breaches of previous court orders. 

Generally, first-time offenders are released on bail with the least restrictive conditions necessary. However, where the nature of the alleged offence is more serious or the risk factors are heightened, the conditions imposed may become more stringent. This graduated approach to bail conditions is governed by the “ladder principle”, which requires that the least restrictive form of release be considered first. More onerous conditions should only be imposed if the Crown can show that lesser conditions are inadequate. 

This principle was affirmed by the Supreme Court of Canada in R. v. Zora, 2020 SCC 14, where the Court emphasized that bail conditions must be carefully tailored and minimally impairing. Section 515 of the Criminal Code codifies this approach by instructing judicial officers to use restraint and to impose only those conditions that directly address the risks identified in Section 515(10). As further clarified in R. v. Antic, 2017 SCC 27, a more restrictive form of release should only be ordered if the Crown demonstrates that less restrictive forms are inappropriate.