8/16/23, 1:23 AM Fact Sheet: The Bail Process

Home > Criminal Justice > Fact Sheet: The Bail Process

Fact Sheet: The Bail Process

Fact Sheet: The Bail Process

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 1/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

PDF Version

 Proposed reforms to Canada’s bail system were introduced on May

16, 2023. Learn more about the proposed changes here: Proposed
changes to strengthen Canada’s bail system

Canada’s bail system promotes public safety, maintains confidence in

the administration of justice, and ensures respect for the Canadian
Charter of Rights and Freedoms. It is an important component of the
criminal justice system.

Learn more about how our bail system works below.

1. What is bail and what is its purpose?

Bail is when a person charged with a criminal offence is released from
custody while awaiting their trial. An individual can be released with or
without conditions that they must follow during their release. Not
everyone who is charged with a crime receives bail.

The Charter of Rights and Freedoms recognizes reasonable bail as a

constitutional right. The law of bail must be understood in that context.

Today, the law of bail, as outlined in the Criminal Code, has three main
purposes:

1. to ensure those charged with an offence appear in court when

required;
2. to maintain public safety by assessing and managing any potential
risks if an accused person is released; and
3. to maintain the public's confidence in the justice system.

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 2/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

When police detain an accused person, the decision to grant bail is made
by a judge or justice of the peace at a bail hearing. These are legal
proceedings where the court (judge or justice of the peace) determines
whether a person should be granted bail or detained in custody until
their trial, based on the considerations set out above.

Persons who are released on bail are usually subject to conditions of

release that are tailored to their specific situation and/or case.  This is
done to address any specific risks that they pose to the public or to
specific individuals. For example, one condition could be “house arrest”,
which could require the accused to remain in their home at all times
except in limited circumstances while awaiting trial.

2. What the Charter of Rights and Freedoms

says about bail
Under the Charter, all accused persons have the right to liberty and are
presumed innocent until they are proven guilty. This means that an
individual charged with an offence has the right not to be denied
reasonable bail without just cause.

Canada’s criminal laws reflect this. “Just cause” requires consideration of

whether detention is required to make sure the accused comes to court,
or to keep the public, including victims, safe or to maintain the public’s
confidence in the administration of justice

3. Bail is a shared responsibility

Canada’s criminal justice system is a shared responsibility between the
provinces and territories and the federal government. The federal
government is responsible for enacting criminal law and procedure,
including the Criminal Code provisions that govern the law of bail,

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 3/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

criminal prosecutions of all federal offences (other than the Criminal

Code) and certain specified offences in the Criminal Code, and
prosecution of all offences in the territories.

The provincial and territorial governments are responsible for the

administration (management) of justice. The provinces are responsible
for prosecuting most criminal offences in their jurisdictions, conducting
bail hearings in relation to those offences and enforcing any conditions
attached to a person who has been released on bail, including if there is
a breach of bail conditions

4. What the Supreme Court of Canada says

about bail
The Supreme Court of Canada (SCC) is the highest court in Canada. Its
decisions have the utmost importance in Canadian law and ensure that
laws enacted by Parliament, including the Criminal Code, respect the
Charter.

The SCC has provided significant recent guidance on bail and relevant
Charter considerations.

The SCC noted in the St-Cloud (2015) decision that “in Canadian law, the
release of accused persons is the cardinal rule and detention, the
exception.”

In the Antic (2017) and Zora (2020) decisions, the SCC ruled that for most
alleged crimes, release on bail at the earliest reasonable opportunity
with minimal conditions is the default position.

These decisions make clear that the principles operate alongside the
grounds for detention and do not replace them. This means that
detention is still permitted where it can be established that there is “just
cause” for it and there are no appropriate other ways of addressing risk

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 4/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

if the accused is released, such as risk of flight or public safety risk, or

where public confidence in the administration of justice would be
undermined.

5. How bail functions under the Criminal

Code
What is the procedure for bail following arrest?
Role of Police

After initially arresting an individual for a criminal offence, police officers

also have the power, in most cases, to either detain or release an
accused person charged with an offence.

A police officer may release an accused person with or without

conditions, so long as the accused person is aware that they must
appear in court at a later date to respond to their charges.

Police are required to detain an accused person if they believe it is

necessary to protect the safety of the public or that there is a risk of the
accused person re-offending.

There are also a number of offences, such as murder, where a police

officer cannot release an accused but rather must bring them before a
court for a bail hearing.

Bail hearing

If an accused person is not released by police, the accused must be

brought before the court for a bail hearing. The court (judge or justice of
the peace) decides, based on the evidence and submissions of the
parties, whether to detain or release the accused, with or without
conditions.

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 5/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

The Court considers any evidence brought forward by the prosecution in

order to ensure public safety, as well as the safety of victims or
witnesses. This can include information on the seriousness of the charge,
whether it involved violence, weapons or firearms, and details about the
past criminal behaviour of the accused.

Police and courts must also take into account, before making any bail
decision, whether the accused person is Indigenous or belongs to a
group that is overrepresented in the criminal justice system and faces
disadvantages in obtaining bail due to systemic discrimination, the
consequences of such discrimination, or other factors. This consideration
reflects Supreme Court of Canada decisions about the
overrepresentation of certain groups in the criminal justice system,
particularly Indigenous persons, who are also more likely to be refused
bail.

Denial of Bail

The Criminal Code sets out the three grounds upon which an accused
may be denied bail:

1. To ensure the accused will attend court when required (referred to

as the “primary ground”);
2. To protect the public, victims and witnesses by considering whether
there is a likelihood that the accused will commit another offence or
interfere with the administration of justice if released from custody
(referred to as the “secondary ground”); and
3. To maintain confidence in the administration of justice, bearing in
mind specific circumstances such as the strength of the
prosecution’s case, the gravity of the offence, the sentencing range
for the offence, and whether a firearm was used (referred to as the
“tertiary ground”).

The burden of proof or “onus” in bail proceedings

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 6/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

The general rule is that when a Crown prosecutor seeks the detention
(denied bail) of an accused person, they must demonstrate to the Court
that there is just cause (i.e., sufficient reasons) to detain the accused.

This is referred to as the “onus”, meaning that the Crown has the
responsibility to show that the accused should not be granted bail. The
Crown is only required to show cause under one of the three grounds
mentioned above for an accused to be denied bail.

However, the Criminal Code also provides that in some circumstances,

such as where an accused is charged with more serious offences like
murder or sexual assault with a firearm, the burden of proof shifts from
the prosecution to the accused. This is referred to as a “reverse onus”.
In a reverse onus situation, the presumption is that the accused ought to
be detained while awaiting their trial unless they can demonstrate to the
court that they should not be denied bail by showing that there is no just
cause for their detention. It is a judge or justice of the peace who makes
the decision on whether to grant bail or not.

A reverse onus occurs when the accused is charged with offences that
involve serious conduct and that are of a particular concern for the
public, such as:

murder or attempted murder;

an indictable offence committed while they were released on bail for
another indictable offence (an indictable offence is the most serious
category of criminal offence);
an indictable offence (if the accused is not ordinarily resident in
Canada);
drug trafficking, importing or exporting;
weapons trafficking, possession of weapons for the purpose of
trafficking, unauthorized import/export of a firearm or weapon,
discharging a firearm with intent, reckless discharge of a firearm;

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 7/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

offences alleged to have been committed with a firearm, such as

sexual assault, while threatening a third party or while causing
bodily harm, aggravated sexual assault, kidnapping, hostage taking,
robbery or extortion;
indictable offences alleged to involve firearms or other weapons
where the accused is subject to a weapons prohibition order;
offences relating to criminal organizations and terrorism;
certain types of re-offending, such as where the accused is charged
with failing to attend court or to comply with a previous bail order or
summons;
an offence involving violence against an intimate partner where the
accused has a prior conviction for an offence involving violence
against an intimate partner (introduced in former Bill C-75).

6. Bail conditions upon release

When an accused person is released on bail, the court can impose
conditions that they must follow. The goal of imposing conditions is to
address risks posed by the accused and ensure they do not commit new
criminal offences while awaiting trial.

a. What types of bail conditions can be imposed?

The “ladder principle” is a longstanding principle of bail which has been

repeatedly recognized by the courts, including the Supreme Court of
Canada. It is an approach that guides how a judge or justice determines
the level of restrictions that should be placed on an accused person if
they are released while awaiting trial. The starting point is that courts
must impose the least restrictive conditions necessary to address the
specific risks posed by the accused. The greater the risk that an accused
poses to society, the more their freedom will be restricted (and the
higher they will go on the ladder).

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 8/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

Examples of conditions that may be imposed include:

Attend court as directed.

Report to a peace officer.
Remain within a particular territorial jurisdiction.
Notify any change of address and employment.
Deposit a passport to prevent travel.
Have a surety (a person who agrees to act as the accused’s
supervisor while they are released in the community, and a person
they may be required to reside with at a certain address).
Do not possess or use a device capable of accessing the internet.
Be under house arrest and/or keep a curfew, except with written
permission from a designated person, such as a probation officer or
a surety, who is tasked with supervising the accused while out on
bail.
Wear electronic monitoring equipment, such as an ankle bracelet.

To address public safety concerns, there are certain circumstances when

the court must impose, or consider imposing, specific conditions,
including:

a condition prohibiting the accused from possessing a firearm,

cross-bow, prohibited weapon, restricted weapon, prohibited device,
ammunition, or explosive substance, or all those things, unless the
court considers that such a condition is not required in the interests
of safety of the accused or the safety and security of a victim or any
other person;
whether it is desirable or not to order that the accused not
communicate with any victim, witness or other person identified in
the order;
whether it is in the interests of the safety and security of a victim,
witness, justice system participant, or any other person, to include a
condition that the accused refrain from going to any place specified

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 9/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

in the order (e.g., where the offence occurred and/or a victim is

living).

b. What are the consequences of not following bail conditions (i.e., a

breach of conditions)?

An accused person who breaches their bail conditions can have their bail
revoked. If an accused breaches their conditions, they may be detained
and then have to return to court to establish why they should not remain
in custody until their trial. A bail breach can often result in a new criminal
charge for that breach and make it more difficult for that person to
receive bail in the future.

7. Why were changes made to our bail

system in 2019?
Former Bill C-75 – Bail Amendments
The Criminal Code was amended in 2019 to clarify the law of bail and to
make bail proceedings more efficient. These amendments were debated
in and voted on in Parliament and the changes were informed by
extensive consultation with the provinces and territories. In these
consultations, the provinces and territories raised issues of delays in the
criminal justice system and agreed on the need for targeted criminal law
reform.

The amendments also respond to the Supreme Court of Canada’s

guidance on bail. The Criminal Code was changed to modernize the bail
regime, while ensuring public safety, and to help maintain public
confidence in the criminal justice system.

These Criminal Code reforms were designed to: 

streamline the bail process by increasing the types of conditions

police can impose on an accused to avoid sending unnecessary
https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 10/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

cases to court;
provide guidance to police on the need to impose reasonable,
relevant and necessary conditions that are related to the offence
and consistent with the principles of bail;
codify a “principle of restraint” that exists in common law for
police and courts to ensure that release at the earliest opportunity is
favoured over detention, when appropriate, and that bail conditions
are reasonable, relevant to the offence and necessary to ensure
public safety; and
clarify that circumstances of Indigenous accused and accused from
other vulnerable populations should be considered at bail, in order
to address the disproportionate impacts that the bail system has on
these populations.

Addressing intimate partner violence and repeat offenders:

The Criminal Code was also amended to address bail in the context where
an accused is charged with an offence involving intimate partner
violence and to ensure courts have the accused’s criminal history before
making a bail decision. Specifically, the amendments:

created a reverse onus at bail for accused charged with a violent

offence involving an intimate partner, where they have a prior
conviction for an offence involving violence against an intimate
partner; and,
require courts to consider when determining whether to release the
accused or impose bail conditions: (a) whether the accused is
charged with an offence in which violence was used, threatened or
attempted against their intimate partner; and (b) whether the
accused has been previously convicted of a criminal offence.

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 11/12
8/16/23, 1:23 AM Fact Sheet: The Bail Process

Date modified:
2023-05-16

https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html 12/12