On Bail Hearings

Excerpts from The Criminal Code

The bail process is perhaps the most important part of the criminal justice process; at a bail hearing it is determined whether or not an individual accused person will be released from custody or held in jail until his or her trial date.

Section 515 (10): For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) Primary Ground: where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) Secondary Ground: where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) Tertiary Ground if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) 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.

At a bail hearing it is either up to the crown attorney to show why an individual should be detained (this is called a crown onus bail hearing) or it up to an accused person to show why they should be released (this is a reverse onus bail hearing).