Bail Hearing in Ontario: What Happens in the First 24 Hours

When someone is arrested, families often face the next few hours with no information. Here is what the Criminal Code says about the first 24 hours and what families can do to help, in plain language.

Step 1: Arrest and possible release by police

After an arrest, the police may release the person themselves, for example on an appearance notice or an undertaking. Section 503(1.1) of the Criminal Code says that before the time limit expires, an officer who is satisfied that continued detention for an offence not listed in section 469 is no longer necessary shall release the person by issuing an appearance notice or taking an undertaking. If the person is not released, they stay in custody for the next step. Our page family member arrested in Peel explains what to do tonight.

Step 2: Before a justice within 24 hours

Section 503(1) says a person who is not released must be taken before a justice without unreasonable delay, and within 24 hours if a justice is available. If a justice is not available in that time, the person must be brought before one as soon as possible. In practice this is often the same day or the next morning. The person can appear by videoconference if the justice considers the technology satisfactory (section 515(2.2)).

Step 3: The bail hearing

The justice decides whether to release the person until trial. Under section 515, for most offences the justice must make a release order without conditions unless the prosecutor shows cause why detention is justified. The justice can also make a release order with conditions. Detention is justified only on these grounds (section 515(10)):

1. Attendance: detention is necessary to make sure the accused comes to court.
2. Protection of the public: detention is necessary for the safety of the public, including victims and witnesses, having regard to all the circumstances, including any substantial likelihood of a new offence or interference with justice.
3. Confidence in the administration of justice: considering factors such as the apparent strength of the case, the gravity of the offence, the circumstances of the offence (including whether a firearm was used), whether the accused faces a potentially lengthy prison term, and the number or gravity of any other outstanding charges.

When the accused must show why detention is not justified

For certain listed situations, section 515(6) reverses the usual approach. The accused must show why detention is not justified, and the section now says they must do so by clearly demonstrating that their proposed release plan addresses the risks. The list includes, for example, some indictable offences allegedly committed while on release for another indictable offence, some firearm-related offences and some intimate-partner violence cases where there is a prior history. This list has been amended recently, so a lawyer should check which rules apply to the charge. See our bail hearing lawyer page.

Common release conditions

Under section 515(4), a justice can order conditions such as reporting to police, staying within a territory, notifying police of an address change, staying away from named people or places, depositing passports, and other reasonable conditions. For offences involving violence or weapons, a no-weapons condition is generally required unless the justice records why it is not needed. Breaching a condition can lead to a new charge. Read our guide on breaching bail conditions.

Sureties

A surety is someone who promises to supervise the accused and report if conditions are broken. The justice must be satisfied that a surety is the least onerous form of release that will work (section 515(2.03)). A person with an indictable conviction in the last ten years generally cannot be named a surety unless the justice is satisfied no other suitable surety is available and it is in the interests of justice (section 515(2.11)). A surety completes a sworn declaration with details about themselves (section 515.1). If you may act as a surety, expect questions about your work, home, relationship to the accused and ability to supervise.

Adjournments

Either side can ask to adjourn the bail hearing. Section 516 allows the justice to adjourn and remand the accused in custody, but not for more than three clear days without the accused's consent. This is one reason it helps to have a lawyer and the family's plan ready early.

How families can help in the first 24 hours

• Find out where the person is held and the exact charges.
• Do not discuss the facts on the phone, since jail calls are recorded.
• Gather proof of address, employment and ties to the community.
• Think about who could act as a surety and whether they are available to attend or join by video.
• Call a lawyer early so a release plan can be prepared.

What the justice can hear at a bail hearing

A bail hearing is less formal than a trial. Under section 518(1) of the Criminal Code, the justice may base a decision on evidence the justice considers credible or trustworthy in the circumstances. The prosecutor can lead evidence of the accused's previous convictions, other pending charges, any previous breach of a release order under section 145, and the circumstances of the alleged offence. The justice must also consider evidence about the need to protect the safety and security of any victim or witness. The defence puts forward the release plan, including any surety.

Should the accused testify?

Section 518(1)(b) says the accused cannot be examined by the justice or anyone else except their own lawyer about the offence, and cannot be cross-examined about the offence unless they have testified about it. In practice this is one reason a lawyer will usually present the plan through the surety and documents, not by having the accused give evidence about what happened. Anything said at a bail hearing can still matter later, so what is said and by whom needs care.

Publication ban

Under section 517 of the Criminal Code, if the accused applies, the justice must order that the evidence, information and reasons given at the bail hearing not be published or broadcast until the accused is discharged at a preliminary inquiry, or the trial has ended. This protects the accused's right to a fair trial and is usually requested at the start of the hearing.

The ladder of release options

Section 515 sets out a series of release options, from least to most onerous: release without conditions, release with conditions, a promise to pay a specified amount, a surety, a cash deposit, and, in limited cases involving an accused who lives far away or outside the province, a deposit and surety. A justice must not choose a more onerous option unless the prosecution shows why a less onerous one would not be adequate (section 515(2.01)). In some serious cases involving violence, the Attorney General can ask that the accused wear an electronic monitoring device as a condition.

After release

Release comes with conditions that must be followed to the letter. Failing to comply with a release order is a separate offence under section 145 of the Criminal Code and can be prosecuted by indictment, with a maximum of two years, and it makes the next bail hearing much harder. If a condition does not work, for example because of work or family, a lawyer can ask the court or the Crown to change it rather than ignoring it. See our guide to breaching bail conditions.

Talk to us

We act at bail hearings in Mississauga, Brampton and across the GTA, and we offer a free 15-minute phone consultation for criminal matters. See our bail hearing page, read our full guide to bail hearings in Ontario, or call (289) 652-0529.

DISCLAIMER: This article is general information about Ontario and federal law, not legal advice, and no lawyer-client relationship is created by reading it. Laws change and every situation is different, so speak with a lawyer about yours.