Bail Hearings

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Bail Hearings

Judicial interim release hearings, also known as “bail hearings” or show-cause hearings are hearings where a person detained pending a determination of their case, is given an opportunity to be released.

Section 11(e) of the Canadian Charter of Rights and Freedoms states that:

Any person charged with an offence has the right not to be denied reasonable bail without just cause.

In practice what this means is that for minor offences, or even offences of medium-seriousness but where the person has no significant prior record, the police will release a person after being accused of a crime. The person accused of the crime will “promise to appear” in Court.

Where, however there is a concern the person won’t come to court (primary ground), or where there is a substantial likelihood that the person will endanger the public or interfere with how the justice system works (i.e. telling a witness to change their story) (this is known as the secondary ground), or where the public would be shocked to learn that a person, in all of the circumstances of the case, were released, the police may detain the person and the person is brought to Court where a judge or justice of the peace will determine bail by considering those 3 “grounds”.

Unless the Crown can “show cause” why one of those grounds is sufficiently applicable, the person will be released. Even if any of the grounds raises a concern, often there are conditions in place that can alleviate the concern (for example a condition that the person check in with the police and attend Court in person; or a condition that the accused not communicate with certain witnesses).

You only get one crack at bail and if you are denied, then your only recourse is a bail review which can often require a change of circumstances unless an error of law is discovered in the Court below.

The right to reasonable bail was examined in 1992 in a case called R. v. Morales when a person was denied bail under section 515 of the Criminal Code, which allowed detention where it “is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will … commit a criminal offence or interfere with the administration of justice”. Speaking for a majority of the Supreme Court of Canada, Chief Justice Lamer wrote that the “public interest” component violated the accused right not to be denied reasonable bail under section 11(e) of the Charter. This Charter violation could not be saved under section 1.

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