At a bail hearing, a judge or justice of the peace will decide whether you should be released. They do not decide whether you are innocent or guilty of the offence. You can have a lawyer with you and everyone qualifies for Legal Aid for a bail hearing.

Bail hearings, sometimes called "show cause" hearings, are to figure out whether you can be released from custody and whether there should be conditions on your release. A bail hearing does not decide whether you are innocent or guilty of the offence you are charged with.

Bail hearings are usually held in Provincial Court. If you are charged with murder, your bail hearing will happen at the Court of King's Bench.

At a bail hearing, in most cases, the Prosecutor must convince a judge or a justice of the peace that you should stay in custody or that you should only be released on conditions. If they cannot do this, you must be released without conditions.

"Reverse Onus"

In some cases, the Prosecutor does not have to show why the accused person should be kept in jail. In these cases, the accused person must argue for their release. This happens, for example, if the accused person is charged with murder or is charged with an indictable offence while on bail for another serious offence. It also happens if the accused is charged with trafficking in illegal drugs or if the person is arrested for failing to appear in court or is charged with breaching a condition of release. In these cases (and others listed here, the accused must convince the judge that it is safe to release them.

The Hearing

In most cases, if police will not agree to your release, your bail hearing will be in court in front of a judge. You have the right to have a lawyer represent you at a bail hearing and everyone qualifies for Legal Aid for a bail hearing.

At the hearing, the Prosecutor talks about the charges against you and describes what the police say happened. They can also talk about any criminal record you may have. You or your lawyer can tell the judge about your personal circumstances, point out any weaknesses in the Prosecutor's case and explain why the judge can be confident that you can be released. This might include telling the judge where you will live and assurances that you will not be in contact with the witnesses or complainants in the case.

It is important to know that Gladue factors, your circumstances if you are an Indigenous person, should be considered at a bail hearing. For more information on Gladue and how to have these factors considered by a judge, see What are Gladue Factors and How Do I Make a Gladue Submission.

At the end of the hearing, you must be released without conditions unless the judge thinks:

you will not show up in court
the public will be in danger because you will commit another offence
the public will lose confidence in the justice system if you are released which may be the case, for example, if you are charged with a very serious offence and the evidence against you is very strong

If the judge thinks any of those things are likely, you will either be released on conditions or you will stay in custody. Sometimes a judge needs more information before deciding and may order a Bail Verification Report to get more details about release options and risks. You do not have to agree to this if you want to have your bail hearing right away, but it may mean you are less likely to be released.

Bail Verification Report

This is a report, usually written by a probation officer, that gives the judge information to help them decide whether you should be released or should stay in custody while your charge is dealt with. The writer of the report will talk to you, anyone who will be a support to you if released and sometimes other people in your life. They will also talk to any victim of the offence you are charged with. They will usually include their assessment of whether you are likely to commit another offence if you are released. Some Gladue factors will be considered in this report but it is not the same as a full Gladue Submission.

Agreements

Often, the Prosecutor and the Defence (you, likely through your lawyer) may come to an agreement about your release before the hearing and will present that agreement to the judge. However, it is still up to the judge at the hearing to decide whether and how you should be released.

Conditions

If the judge or justice of the peace releases you on conditions, they will make a release order listing those conditions. Conditions may include things like staying at a certain address, staying away from certain places, not communicating with complainants or witnesses, not drinking, etc.

Conditions must be reasonable and necessary. Conditions cannot be imposed for the purpose of punishment. They must be for the purpose of making sure you come back to court, keeping witnesses or victims safe or preventing an offence. If you are concerned about whether you will be able to follow any of the conditions, you should talk to your lawyer and ask if a condition can be made so that it fits your specific circumstance.

If you breach any of your conditions while you are released, you can be arrested and charged. You may need to convince a judge that you should be released again and the judge may be less likely to agree a second time.

Sureties

In some cases, your lawyer or the judge may think it is a good idea for you to have a surety. A surety is someone who promises that you will show up for court and agrees to pay money to the court if you do not.

The Ladder Principle

The law says that you must be released without conditions or with the fewest conditions possible to address any concerns about your release. This is often called the "ladder principle". You start at the bottom of the ladder with just a promise to appear in court and go up from there. The top of the ladder is a 24-hour curfew.

Bail Review

If you are held in custody after a bail hearing, the law says that if your trial has not started after 90 days, you must have a bail review hearing to see if you should still stay in custody. You can choose to waive your right to this hearing and the right to this hearing does not apply if you are charged with murder or a few other offences.

What Happens at a Bail Hearing?