After you are arrested and brought into custody prior to trial, a bail hearing will occur within within 24 hours of your arrest. The bail hearing is where it will be determined whether you should be kept in custody, released, or if the hearing should be adjourned. Unless the Crown shows cause why you should be held in custody or given strict bail conditions, at the first hearing you should be released.
What to expect at a bail hearing?
Typically, at a bail hearing the Crown will provide a summary of the allegations against you and explain whether they are seeking your detention or consenting to your release on conditions, and what grounds they rely on for their application. When making their application, the type of evidence that the Crown will usually rely on includes the full circumstances of the offence, your existing criminal record, whether you are in a position of reverse onus (see below for further explanation), and what conditions should be imposed on you if you are released.
If you can afford bail, the defence will then typically present arguments as to why detention or strict bail conditions are not warranted in the circumstances. In doing so, defence counsel will likely suggest bail conditions that will result in minimal restriction, but that will also try to address the concerns of the court.
Show cause and why bail can be refused
One term that is often used in the context of bail hearings is ‘show cause’. Show cause refers to the burden placed on the Crown at a bail hearing to show justifiable reasons why an accused should be kept in custody.
In order to show cause, the Crown Prosecutor must demonstrate that your detention is justified on the basis of one or more of the following three grounds. The three grounds that are considered include:
- Primary Ground: the detention of the accused is necessary to ensure the accused’s attendance at court;
- Secondary Ground: the detention of the accused is necessary for the protection and safety of the public from the risk of further crime and to protect witnesses from interference or intimidation; and
- Tertiary ground: the continued detention of the accused is necessary to maintain the confidence of the public in the administration of justice.
While the burden to show cause for continued detention is placed on the Crown at a bail hearing, there are some circumstances where the burden is reversed and you will have the onus of justifying your release. The conditions that trigger this “reverse onus” are:
- Where the Crown Prosecutor is in the process of making an application to have bail revoked because the accused was already released on bail, but breached his or her conditions while on bail;
- Where the accused is charged with breaching bail granted by a judge or justice;
- Where the accused is charged with breaching a conditional sentence order;
- Where the accused is charged with an indictable offence while released on bail for another indictable offence;
- Where the accused is charged with drug trafficking, a serious firearms or weapons offence, a criminal organization offence, a terrorism offence, or a Security of Information Act offence.
The existence of one or more of these conditions will make it significantly more difficult for you to be granted bail prior to trial. It is therefore vital that you seek the assistance of a skilled and experienced criminal defence lawyer to avoid being kept in custody.
What happens after a bail hearing?
If you are granted bail, you will be released on a notice to appear or a recognizance which will stipulate conditions that you must comply with until your matter is resolved. For a detailed discussion on release conditions please see “What conditions will I have if I am released on bail?”
If bail is not granted or the bail conditions that are imposed are found to be too onerous, you can apply for a review of your conditions every 30 days, or more frequently if you are granted permission by the Court to do so. If the Crown Prosecutor and defence are able to reach a mutual agreement with respect to the release conditions, the previous order may be reviewed by the court and replaced.