When people think of bail, they think of this (or any other) classic scene from Law & Order.
But the bail process in Canada is very different.
This week’s question is “What happens if I can’t afford bail?” In answering this question, it is important to understand a bit about how the bail system works in Canada. Once you do, you realize it’s not like on television and the question rarely comes up.
In Canada, the concept of bail is formally referred to as judicial interim release. For the purposes of this article, we will call it bail.
There are different forms of bail including police bail, where the police release an arrested person at the scene of the crime or later the same day from the police station. When this happens, the person is released with a piece of paper that has a court date and also a date when they will have to attend a police station to give fingerprints and photographs (mug shots). The simplest type of paper a person can be released on is called an Appearance Notice, which is a blue or green slip of paper that looks like an oversized ticket. The next type of document is called a Promise to Appear, and this is given at the police station. So, for example, if you get released at the scene for Dangerous Driving you often will receive an Appearance Notice. If you are accused of impaired driving, and you are brought back to the police station, you will usually get a Promise to Appear.
When a person is released on a Promise to Appear the police have the option of giving them an undertaking—specifically, an “undertaking entered into before a peace officer or other officer in charge.” An undertaking is a promise to follow certain conditions. These conditions may include notifying the investigating officer of any change of address. The conditions can also include things like staying away from an alleged victim, staying away from a certain location, no alcohol, no weapons etc. Also, the police have the authority to require a person to deposit money or other valuables in the amount of $500 or less for certain persons. Section 498 of the Criminal Code suggests that they can only require this money in circumstances where:
the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody
Now, where the person doesn’t have a way of satisfying the conditions set by the police, or if the person does not want to agree to the conditions, or if the police have reasonable grounds to believe that any of the following conditions apply, they can detain the person and take them to court for a real bail hearing (or show cause hearing). Those conditions are:
the person won’t attend court,
the person’s identity is in question,
it is necessary to secure evidence,
to prevent the continuation or repetition of the offence,
to ensure the safety or security of a victim or witness.
Bail in Canada
Although forms of police bail fall within the realm of judicial interim release, broadly speaking, when we think of bail we really think of a courtroom scene.
This article is addressing the question of affording bail; however, this is rarely ever a question in Canada. Why?
First, money does not come into play in Canada as much. Now a recent Supreme Court decision has put some question into this practice, but bail in Canada often places a greater emphasis on sureties as opposed to money. A surety (not pronounced “assurety,” as many people do) is a person who is responsible for the supervision of a person released. Although money is often pledged by the surety or even by the accused person, this is commonly done in the form of a bond (a promise to pay money if the conditions are broken) and not actual cash.
Now, how much is the right amount, what to do if an amount is set too high, and the setting of other conditions in bail are things too complicated to discuss in this one article, but bail hearings are NOT like they are on television.
The fact remains that bail hearings in Canada are not like the video clip at the top of this article. They usually take a few hours and can even last a few days. You only get one shot at bail and if you are unsuccessful, you can only apply for bail through a challenging bail review process.
Make sure you have a professional in your corner for your family member’s bail hearing. Please contact us for a free consultation.