Often, the first contact we have with a new client is a call from that client, or his or her relative or friend, stating that the person is in police custody, having been arrested and charged with an offence. Two issues are certain to arise. First, advising the client that they have the right to remain silent and that anything they say will likely end up being used against them at trial. The second is a discussion about what will happen in the immediate aftermath of the arrest. Will the police be releasing them without charge? Will they release the accused on a promise to appear in court on a future date? Or will the police hold the accused over until they can be brought before a judge for a "show cause" hearing?
The law of bail in Canada, formally known as " judicial interim release," is governed by section 515 of the Criminal Code. This section provides that the Court shall release the accused without conditions unless the prosecutor shows that the detention of the accused in custody is justified or that the accused only be released on appropriate conditions to ensure his or her good behaviour in the community and to ensure his future attendance in court. Typical bail conditions include that the accused report to a bail supervisor; that they remain within the province or city in which the court is located; that they refrain from communicating directly or indirectly with the complainant or witnesses; that they not attend at certain addresses; that they not posses any weapons or firearms etcetera. So, for most offences and in most situations, it is the Crown counsel that has the burden of proving that the accused's detention is justified. There is usually a presumption (that is linked to the overall presumption of innocence throughout the trial process) that the accused is entitled to be released. It is only where the Crown can satisfy the court under s. 510 (10) that there are Primary, Secondary, or Tertiary grounds to detain the accused that the court will make a detention order, causing the accused to be held in custody until the completion of trial.
Primary ground concerns involve the likelihood of the accused coming back to court out of custody, The Crown's concerns are typically linked to an accused's history of failing to attend court or breaching court orders. Other considerations include the accused's housing situation and family/ community support to aid in getting him/her to court. Secondary ground concerns involve the likelihood that, if released, the accused will commit further offences. The Crown is permitted to allege prior convictions at a show cause hearing. Clearly, a recent and related record for offences of the type the accused is presently charged with will be referred to by Crown in submissions for detention. Tertiary grounds involve the concept of the public having confidence in the administration of justice. Tertiary ground bail cases typically involve the most serious crimes such as murder, aggravated sex assault and the like. In these cases, the court must consider the serious circumstances and strength of the Crown's case, whether a firearm was used and the potential for a lengthy prison term upon conviction.
In the more serious cases, accused persons are often released upon depositing cash with the court or, alternatively, upon a surety coming forward to, essentially, act as a guarantor of the accused's good behavior in the community. The surety might be the person that posts the cash or a charge against his or her real estate holdings in some cases. Should the accused fail to attend court, the prosecutor will institute "estreatment" proceedings where they will apply to the court for the deposited cash or property to be forfeited to the Crown. In order to qualify as a surety, the person coming forward will have to satisfy the court they are a person of good character that can be trusted to monitor the accused's good behaviour in the community.
As criminal defence lawyers, our role is to defend our client's right to be presumed innocent. We firmly believe that innocent people should not be held in custody. Should you, a relative, or friend be arrested, our best advice is to consult with experienced counsel so as to develop and advance an appropriate release plan.