In my experience, here are the most important principles regarding bail in Ontario:
Presumption of Innocence: In Canada, there is a fundamental presumption of innocence until proven guilty in a court of law. This means that accused individuals are entitled to be released on REASONABLE bail pending their trial. If someone is detained pending trial
Eligibility for Bail: Generally, individuals charged with a criminal offense are eligible for bail. However, there are exceptions for serious offenses, such as murder, where the onus is on the accused to demonstrate why they should be granted bail.
Bail Hearing: A bail hearing is a court proceeding where the Justice decides whether to release the accused before trial. At the hearing, the Justice considers factors like the nature of the offense, the accused's criminal history, ties to the community, and the likelihood of the accused appearing for trial.
Surety: Folks, the word is “SURETY”, not “ASSURETY”. A surety is a person who agrees to take responsibility for the accused and ensure that they comply with the conditions of bail. The surety may need to provide financial assurance and may be required to supervise the accused. The surety is essentially the eyes and ears of the Court while an accused is on release.
Conditions of Bail: The judge may impose conditions on the accused as part of their release. These conditions may include a monetary bond, reporting to a police station, staying away from certain individuals or locations, and adhering to a curfew or house arrest. In my opinion, bail is different from what we typically see in Hollywood movies. Bail in Canada is centred on the idea of a reasonable plan of release (not $) whereas in the US, bail seems to centre on the ability to pay a cash bond. There are rules and there are exceptions, of course.
Bail Variations: If the accused wishes to change the conditions of their bail, they can request a bail variation from the court. This might involve asking for changes to reporting requirements, travel restrictions, or other conditions. This is a process that takes time and the accused is very much subject to the consent of the Crown Attorney when seeking a bail variation. It is also possible to set a bail variation here wherein a Justice of the Peace would decide whether to grant a bail variation.
Breach of Bail: Failing to comply with the conditions of bail can lead to serious consequences, including revocation of bail, re-arrest, and landing back in jail pending trial.
Publication Ban: In some cases, the court may order a publication ban, which restricts the reporting of certain information related to the bail hearing to protect the accused's rights. In my experience, this pertains to anonymizing the names of witnesses and victims. Publication bans do not typically apply to the accused. However, if publishing of the accused’s name would lead to an obvious inference as to who the victim is, then in these circumstances the accused’s name should not be published.
Detention Review: If the accused is denied bail, they have the right to request a detention review to have the decision reconsidered. This occurs at the Superior Court of Justice and it does not happen overnight. There are number of items that are required to be filed before a bail review can take place.
Criminal Code and Charter Rights: The rules and procedures regarding bail are outlined in the Criminal Code of Canada and are subject to the protections provided by the Canadian Charter of Rights and Freedoms. For example, Section 11(e) of the Charter stipulates that reasonable bail is not to be denied without just cause. In addition, Section 9 of the Charter provides a guarantee against arbitrary detention and imprisonment.
The Onus: Who has to do the persuading? Typically, if the Crown seeks to detain an accused at the bail phase, the Crown would then have the onus to convince the Justice that the accused should be held pending trial. There are circumstances where a reverse onus is created, wherein an accused must persuade the Justice that they should be released. To name a few: where someone is charged with breaching their prior release order, or if someone is charged with trafficking in a scheduled substance - these would necessitate a reverse onus.