2. Questions and Answers

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Bail Law in Canada

• Q1 What is the bail ladder?
• Q2 What are bail conditions and who can impose them?
• Q3 How does a reverse onus at bail work?
• Q4 Can we change the law to guarantee that violent offenders will not get bail?
• Q5 Does the current bail regime under the Criminal Code favour the release of Indigenous and/or Black and/or marginalized people charged with a violent offence?
• Q6 What is the principle of restraint and how is it supposed to apply?
• Q7 Why was the principle of restraint legislated?
• Q8 Does the principle of restraint require those charged with a violent offence to be released?
• Q9 What are some differences between the Criminal Code bail rules and those found under the Youth Criminal Justice Act?

Q1 What is the bail ladder?

• Subsection 515(1) of the Criminal Code sets out a presumption for most bail hearings that an accused should be released without conditions unless the Crown can justify why detention or a more restrictive form of release is necessary.
• The “bail ladder” is found in subsection 515(2) of the Criminal Code. It refers to the progressively more restrictive forms of release that a judge or justice can order for an accused person when granting bail. For example, paragraph 515(2)(e) is the most restrictive form of release, which involves a mandatory cash deposit and an optional surety in certain circumstances.

Q2 What are bail conditions and who can impose them?

• Bail conditions may be imposed by the police or the courts and must be followed by an accused when released from custody while awaiting their trial. For example, an accused may be required to follow a curfew, not to possess weapons and not to communicate with a victim or witness.
• The bail conditions must be appropriate and reasonable. If an accused person breaches their bail conditions, they can be charged and convicted of a new criminal offence under section 145 of the Criminal Code and could be sentenced to up to two years in prison.

Q3 How does a reverse onus at bail work?

• A reverse onus at bail presumes that the accused should be detained pending trial and requires them to demonstrate why they should be released, having regard to the grounds for detention under subsection 515(10) of the Criminal Code (i.e, flight risk, public safety and confidence in the administration of justice).
• A reverse onus does not mean that an accused will not be able to obtain bail, or that they need to disprove the commission of the offence. It means that the onus of proof has shifted to the accused, reflecting Parliament’s intent that it ought to be more difficult to obtain bail in these circumstances.
• A reverse onus at bail exists for certain situations, such as, where the accused is charged with breaching a bail condition or with an indictable offence involving a firearm while the accused was under a prohibition order.

Q4 Can we change the law to guarantee that violent offenders will not get bail?

• Any law that is to be applied using discretion will result in unpredictable situations. We cannot legislate away any and all risk, unless you detain all accused persons all of the time, which would not be consistent with the Charter of Rights and Freedoms which guarantees accused persons the right not to be denied reasonable bail without just cause.
• While the law provides an important framework, we also depend on its effective implementation by those responsible for the administration of justice to ensure that it operates as Parliament intends it.

Q5 Does the current bail regime under the Criminal Code favour the release of Indigenous and/or Black and/or marginalized people charged with a violent offence?

• No. Under section 493.1, police and courts are required to give primary consideration to the release of all accused, where appropriate and consistent with the grounds for detention (under subsections 498(1.1) or 515(10)).
• Under section 493.2, police and courts are required to consider the particular circumstances of Indigenous accused and members of vulnerable populations when making a decision about bail.
• These principles do not change the rule that an accused must be detained if detention is deemed to be necessary for public safety, to ensure their attendance in court, or to maintain confidence in the administration of justice.
• These principles remind those responsible for the enforcement of our bail regime that they must consider a number of factors when making a decision on bail.

Q6 What is the principle of restraint and how is it supposed to apply?

• The “principle of restraint” under section 493.1 is intended to ensure that release at the earliest opportunity is favoured over detention, where appropriate, and that only reasonably necessary bail conditions are imposed on an accused person. The principle of restraint is a guiding principle and does not dictate a specific outcome.
• This principle does not change the basis upon which someone can be detained at a bail hearing. The grounds for detention referred to under subsection 498(1.1) for police and subsection 515(10) for courts continue to apply, meaning that an accused still has to be detained if it is necessary to prevent flight, for the protection of the public or to maintain confidence in the administration of justice.
• The principle of restraint is embedded within the structure of the existing bail provisions, which date back to the Bail Reform Act of 1972. The Supreme Court of Canada has mandated its application on many occasions, including in the decisions of St-Cloud (2015), Antic (2017), Myers (2019), and more recently, Zora (2020).

Q7 Why was the principle of restraint legislated?

• When former Bill C-75 was introduced, there was information to suggest that bail conditions were being routinely imposed by both police and courts that were neither related to the offence nor consistent with the principles of bail. Minor bail breaches were diverting resources away from more serious offences, with disproportionate effects on Indigenous people and vulnerable populations. These issues were discussed in detail by the Standing Senate Committee on Legal and Constitutional Affairs in their comprehensive report, Delaying Justice is Denying Justice from 2017.
• The principle of restraint responds directly to Recommendation 31 of that report, which called on the Minister of Justice to “prioritize reducing the number of persons on remand across Canada”.
• The reforms also codified common law principles set out in a series of Supreme Court of Canada decisions on bail, notably St-Cloud (2015), Antic (2017), Myers (2019) and more recently, Zora (2020).

Q8 Does the principle of restraint require those charged with a violent offence to be released?

• No. The principle of restraint is intended to guide police and courts in applying the provisions under Part XVI (compelling appearance of an accused and interim release) of the Criminal Code dealing with bail, but does not mandate the release of any person, including accused persons from Indigenous or vulnerable populations.
• The principle does not change the grounds for detention that currently exist under subsection 498(1.1) for police and subsection 515(10) for courts. The principle of restraint specifically makes reference to those grounds, and reaffirms that detention will continue to be necessary for public safety, to ensure the accused attends court, or to maintain confidence in the administration of justice.
• This principle as well as the principle requiring that police and bail courts consider the circumstances of an Indigenous accused or accused from vulnerable populations seeks to ensure that a full range of considerations inform a decision on whether or not someone should be released on bail.

Q9 What are some differences between the Criminal Code bail rules and those found under the Youth Criminal Justice Act?

• Part XVI (compelling appearance of an accused and interim release) of the Criminal Code applies to the detention and release of young persons, except when those provisions are inconsistent with or excluded by the Youth Criminal Justice Act (YCJA).
• The YCJA contains its own grounds for the detention of a young person in sections 28 to 31. The reasons for detention in custody differ from those found in the Criminal Code, and the release order conditions that may be imposed on a young person pursuant to subsections 515(4) to (4.2) of the Criminal Code are also defined by the YCJA. Section 30.1 of the YCJA contains a shorter applicable time period for a detention review compared to section 525 of the Criminal Code.
• In addition, in certain cases when certain requirements are met, a young person can be placed in the care of a responsible person instead of being detained in custody. Detention in custody is not permitted as a substitute for appropriate child protection, mental health or other social measures.

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