Bail Hearing Law: The Basics

May 1, 2021

A person charged with a criminal offence (who is not released from the police station) will be brought to court for a bail hearing (also called a “show cause” hearing). At that time the Crown attorney will inform the court whether it is agreeing to bail (referred to as a “consent release”) or seeking detention. If the request is to keep the accused in custody, the Crown will indicate on what grounds (primary, secondary or tertiary). A bail hearing will then be scheduled. At the conclusion of the hearing, a justice decides whether the accused will be released on bail or held in custody.

Show Cause Hearing

The term “show cause” is the legal term for a bail hearing, which refers to the burden to “show cause” why the accused should be detained or released from custody. The burden is normally on the Crown to establish why the accused should be detained in custody. However, in some instances (for example, where the accused is charged with certain serious offences or was already released on bail) the burden is reversed. In these “reverse onus” hearings, the task is now on the accused (not the Crown) to convince the court why he/she should be released from custody. In either case, the standard of persuasion is on a “balance of probabilities”, meaning more probably than not that the accused should be released or detained in custody.

 

wooden gavel on table

 


Three Grounds of Detention

In deciding whether an accused should be detained in custody or released on bail, the court considers the following three grounds:

1. Primary Grounds

The “primary ground” is concerned with whether the detention of the accused is necessary to ensure his or her attendance at future court appearances.

The primary factor a court will consider in determining the primary grounds are the accused’s roots in the community. If the accused’s family, residence and place of employment are in same local where the arrest took place, the primary grounds will not be an issue. In that situation, the Crown will typically state at the beginning of the hearing, “The Crown has no concerns with the primary grounds”. Meaning, that the Crown believes the accused will attend court when required. The exception is if the accused has a criminal record for not attending court or does not ordinarily reside where case is proceeding. (For example, if the accused is visiting from out of town). In these circumstances, the Crown may be concerned that the accused will not attend court and ask for the accused’s detention under the primary ground.

2. Secondary Grounds

The “secondary ground” is concerned with whether the detention is necessary for the protection and safety of the public, including the substantial risk that the accused will commit further offences or interfere with the administration of justice.

In deciding whether detention is justified under the secondary grounds, the Court will ask the following questions:

  1. If the accused is released on bail, is there a risk the accused will commit further offences that relates to the safety of the public?
  2. If there is a risk, is the risk substantial?
  3. If the answer is “yes”, does the plan of release and bail conditions reduce the risk to an acceptable level?

Practically speaking, if an accused has been arrested for the first time, then the “secondary grounds” will rarely be of a concern. On the other hand, if the accused has a criminal record or is already out on bail, the Crown will likely be seek detention, particularly if the new charges are the same or similar. In that case, a well thought out plan of release will be critical to convincing the Crown and court that the accused can be released on bail because the danger to public safety is no longer substantial.

3. Tertiary Grounds

The “tertiary grounds” asks whether the detention of the accused is necessary to maintain the public’s confidence in the administer justice. Under this ground, the court must consider all the circumstances, including, but not limited to (i) the apparent strength of the Crown’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 potential length of imprisonment. In addition, the court will consider the circumstances of the accused (age, background, whether there is a criminal record), and the quality of the surety and plan of release.

The tertiary grounds will be raised by the Crown whenever the charges are serious, even if the accused has no criminal record. For example, if the charges involve firearms or an alleged criminal organization, the Crown will most certainly raise it as a basis to deny an accused bail. However, importantly, the court, in making a decision whether detention is “necessary” under the tertiary grounds, takes the perspective of the public not from the lowest common denominator, but rather from the standpoint of someone who is fair minded, and believes in our fundamental values as a society, including the presumption of innocence and the right to reasonable bail. As a result, detention under the tertiary grounds should occur only in rare cases.

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Richard Fedorowicz is a Criminal Lawyer Serving Toronto, Brampton, Newmarket, Hamilton, and Oshawa