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When most people think of bail, they usually think of a sum of money paid to ensure a person’s release from jail. However, bail actually refers to the right of an accused individual to be released from police custody. Money may be involved, but this is only one form of bail, and if the accused complies with the conditions of release, this money is refunded.

Following arrest for a criminal offence under the Criminal Code, which applies across Canada, an accused person may simply be released until their next scheduled court appearance. However, depending on the circumstances, it is possible the person may have to remain in police custody until he or she can appear before a judge. Section 503 of the Criminal Code states that a person who has been arrested must appear before a judge within 24 hours, or as soon as possible if a judge is not available within 24 hours (s. 503(1)(a) and (b)). The purpose of this first appearance is to have the charges against the accused person read out in court and to make sure that the accused person understands the charges against him or her.

At this appearance before the judge, or at an appearance soon after, a bail hearing, or judicial interim release hearing, will be held. If the bail hearing is not held at the first appearance, it must be held within three days of the accused’s arrest, unless the accused person agrees to stay in police custody longer. This sometimes occurs so that the accused person has more time to gather witnesses and prepare for his or her bail hearing. The purpose of the bail hearing has nothing to do with assessing the accused’s guilt in relation to the alleged crime. Instead, this procedure is the legal way of determining whether the accused may be released in the public until the actual trial.

With the exception of very serious crimes, such as treason, murder, and crimes against humanity, the judge has the immediate power to release an accused until the actual court hearing, with or without conditions. However, there are certain situations where an accused person would be required to remain in custody. These situations are listed in section 515(10) of the Criminal Code:

  • When detention is necessary to ensure the accused will actually attend his or her hearing in court
  • When detention is necessary to ensure public safety, or if there is a high likelihood of the accused committing a criminal offence on release
  • When detention is necessary to maintain confidence in the administration of justice due to the seriousness and the circumstances of the alleged crime and the strength of the prosecution’s case against the accused person

The Charter includes the right that all accused are presumed innocent until proven guilty. Thus, the Crown prosecutor will need to have a strong case, involving a serious crime, in order to prove that releasing an accused person will make the public lose confidence in the criminal justice system.