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If you were charged with a crime and not released you will have a bail hearing. Understanding the factors that the court considers when deciding whether to release you, and what conditions to impose, can help you prepare to argue for your release.

Bail (Show Cause) Hearing

When making decisions about release judges and Justices of the Peace must pay particular attention to the circumstances of an accused who is Indigenous or from a vulnerable population that is over-represented in the justice system.

If are in police custody you must be brought before a Justice of the Peace (JP) or a judge within 24 hours or as soon as reasonably possible. The judge or JP will release you unless the Crown Prosecutor does not agree to your release.

If the Crown prosecutor does not agree to your release there will be a bail hearing. You can have a lawyer represent you at this hearing. In Saskatoon, Regina and many other locations Legal Aid will represent anyone, regardless of their income, at their bail hearing. Most bail hearings take place in Provincial Court. Bail hearings for a few serious offences, such as murder, go to the Court of King's Bench.

At the hearing the Crown Prosecutor must show that there is a good reason to keep you in custody. The Crown Prosecutor will tell the judge about the crime that you are accused of committing and any criminal record you have. You or your lawyer can tell the judge about your personal circumstances, including information about your home life, employment, family and other factors that you think the judge should consider.

The judge or JP will consider...

  • whether you are charged with an offence that involved violence, attempted violence or threats of violence towards someone who is your intimate partner
  • whether you have a past criminal record or other charges against you
  • whether you have a steady occupation
  • what your family life or community life is like
  • information about your character
  • how serious the charge is and whether you were violent

The judge or JP must release you unless they believe that...

  • you will not come back for your court date
  • you could be dangerous to the public
  • keeping you in jail is necessary to maintain public confidence in the administration of justice (the court will consider whether the offence was serious, the strength of the prosecution’s case, the circumstances of the offence, and the potential for a long jail sentence)

Even if the judge or JP has reservations about your release, if conditions can address those concerns you should be released on conditions

In some cases the Crown Prosecutor does not have to show why the accused person should be kept in jail. In these situations the accused person must argue for their release. This happens if the accused person is not a resident of Canada. This also happens if the accused person is charged with murder or with an indictable offence while on bail for another serious offence, or if the accused person is charged with trafficking in narcotics. In these cases, and a few other situations, the accused person must satisfy the judge that it is safe to release them.

Bail Conditions

The crown must show that the conditions they are asking for are necessary and why less severe conditions are not appropriate.

At the end of the bail hearing the JP or judge decides whether to release you. If you are released after a bail hearing, you may have to agree to pay a sum of money if you do not appear in court as required. You may or may not be required to actually deposit the sum of money with the court. The JP or judge has to favour a promise to pay over you actually depositing money if you have assets that could be seized if you fail to appear.

The JP or judge can also impose conditions on your release such as...

  • reporting to a police officer
  • staying within or away from a specified geographical area
  • not communicating with any victims or witnesses
  • depositing you passport
  • any other reasonable condition

If you promise to pay money, you may have to get a surety. A JP or judge can only require this if less severe release conditions would not be enough. A surety is someone who promises to pay money to the court if you do not do the things you promised. If you breach a condition of your release, the surety may not have to pay anything if they can convince the judge that they took all reasonable steps to get you to comply with the conditions.

If you have to pay money to the court you cannot use a personal cheque. The court only accepts...

  • cash
  • a certified cheque
  • a money order
  • a trust cheque from your lawyer

If you do not have any money...

  • someone else can put up money
  • someone may be your surety

If you pay money to the court, the money is kept by the court to help make sure you go to court on all your court dates. The money is paid back to you if you make all your court appearances as required.

Release on Bail

After you are released on bail you must…

  • go back to court on all your court dates
  • keep the promises you made in your undertaking or recognizance

If you do not go to court on all your court dates or you break your promises …

  • you can be arrested with or without a warrant
  • you can be charged with another criminal offence
  • you will be brought back before the court
  • you may be released on new conditions
  • you may lose any money you left with the court
  • you may be kept in jail until your court date

If any of these things happen it will be up to you to convince the court that you should be released on bail again.

After the bail hearing, whether you are released or not, your case will be adjourned to a later date for what is called your first appearance. Earlier court dates are available for people who are held in custody while they are waiting for court.

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