Bail Hearings and Sureties in Ontario

What Is a Bail Hearing?

A bail hearing is a court proceeding in which a justice determines whether an accused person should be released or detained while the criminal charge is before the court.

A bail hearing does not determine whether the accused is guilty. The charge has not yet been proven, and the accused remains presumed innocent.

The court may:

• Release the accused without conditions;
• Release the accused with conditions;
• Require a financial pledge;
• Require one or more sureties;
• Impose a house-arrest or curfew condition where justified; or
• Order that the accused remain in custody.

The appropriate release order depends on the charges, the accused’s circumstances and the grounds raised at the hearing.

The Principle of Restraint

Section 493.1 of the Criminal Code requires primary consideration to be given to releasing the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances.

Conditions should also be reasonably practical for the accused to follow.

This approach is sometimes described as the ladder principle. The court should not automatically impose a more restrictive form of release when a less onerous form would adequately address the identified risks.

A surety, cash deposit, house arrest or other restrictive condition is not required in every case.

When Is a Bail Hearing Required?

Police may release an accused person from the station with an appearance notice, undertaking or other release document.

A bail hearing may be required where police do not release the accused. This may occur where police allege concerns involving:

• The seriousness of the charge;
• The accused’s identity;
• Attendance in court;
• Public safety;
• An alleged breach of an existing order;
• A criminal record;
• Outstanding charges;
• Weapons or violence;
• Interference with witnesses; or
• Another factor affecting release.

A person held for bail is brought before a justice in accordance with the applicable legal requirements.

The Three Grounds for Detention

Section 515 of the Criminal Code identifies three grounds on which an accused may be detained.

Primary Ground

The primary ground concerns whether detention is necessary to ensure that the accused attends court.

The court may consider factors such as:

• The accused’s connection to the community;
• Residence;
• Employment;
• Family responsibilities;
• Previous court attendance;
• Outstanding warrants;
• Travel history; and
• The proposed release plan.

A person is not automatically detained because they are not a Canadian citizen or do not own property.

Secondary Ground

The secondary ground concerns the protection or safety of the public, including complainants and witnesses.

The court may consider:

• The nature of the allegations;
• The accused’s criminal record;
• Previous compliance with court orders;
• Allegations involving violence or weapons;
• Whether the accused was already on release;
• The relationship between the accused and complainant;
• Concerns about contacting witnesses; and
• Whether the proposed plan can manage the identified risk.

Conditions should be connected to an actual concern and should not be more restrictive than reasonably necessary.

Tertiary Ground

The tertiary ground concerns maintaining confidence in the administration of justice.

The court considers all the circumstances, including:

• The apparent strength of the Crown’s case;
• The seriousness of the offence;
• The circumstances surrounding the alleged offence;
• The potential for a lengthy term of imprisonment; and
• Whether a firearm was allegedly used, where relevant.

The seriousness of the charge alone does not automatically require detention. The statutory factors must be assessed together.

Who Has the Burden at a Bail Hearing?

In many bail hearings, the Crown must show why the accused should be detained or why particular restrictions are necessary.

In some circumstances, the accused may bear the burden of showing why release is justified. This is commonly called a reverse-onus bail hearing.

A reverse onus may apply in circumstances identified by the Criminal Code, including certain allegations involving:

• An offence allegedly committed while the accused was already on release;
• A failure to attend court;
• A breach of a release order;
• Certain firearms offences;
• Certain intimate-partner violence circumstances;
• Drug trafficking, importing or exporting in specified cases; or
• Other offences designated by legislation.

Whether a reverse onus applies depends on the precise charge and circumstances.

A reverse onus does not remove the presumption of innocence. It changes which party bears the burden on the issue of release.

What Is a Surety?

A surety is a person who agrees to supervise an accused person after release and help ensure that the accused follows the bail conditions.

A surety is not simply a character reference or someone who pays money to secure release. The surety assumes an ongoing supervisory responsibility.

A proposed surety should understand:

• The charges faced by the accused;
• The proposed release conditions;
• The accused’s personal circumstances;
• The surety’s supervisory duties;
• The financial amount pledged;
• The need to report a breach; and
• The procedure for asking to be removed as surety.

A surety should not agree to supervise unless prepared to carry out these responsibilities.

Who Can Act as a Surety?

There is no single category of person who must act as a surety. Depending on the circumstances, a proposed surety may be:

• A spouse or partner;
• A parent;
• An adult child;
• Another relative;
• A friend;
• An employer; or
• Another responsible adult.

The court may consider:

• The surety’s relationship with the accused;
• How well the surety knows the accused;
• The surety’s ability to supervise;
• The surety’s residence and schedule;
• Whether the surety understands the allegations and conditions;
• The surety’s criminal record, if any;
• Whether the surety can resist pressure from the accused;
• The suitability of the proposed residence; and
• The amount the surety is able to pledge.

Owning a home or having substantial wealth does not automatically make someone a suitable surety.

What Are a Surety’s Responsibilities?

A surety may be expected to:

• Know the accused’s release conditions;
• Supervise the accused as required by the release order;
• Ensure the accused attends court;
• Monitor compliance with house arrest or curfew, where applicable;
• Prevent prohibited contact;
• Address concerns before they become breaches; and
• Contact police if the accused violates or is about to violate a condition.

The exact responsibilities depend on the release plan and the court order.

A surety should not promise a level of supervision that cannot realistically be provided.

Does a Surety Have to Pay Money Upfront?

A surety may be required to pledge an amount of money. A pledge is not necessarily the same as depositing cash with the court immediately.

The amount should relate to the circumstances and should be meaningful to the surety without being unattainable.

If the accused breaches the release order, the Crown may begin proceedings seeking forfeiture of the pledged amount. Forfeiture is not necessarily automatic, and the surety may have an opportunity to respond.

The exact form of release determines whether a pledge or deposit is required.

Preparing a Bail Plan

A bail plan should respond to the specific concerns raised by the allegations and the accused’s circumstances.

A proposed plan may address:

• Where the accused will live;
• Who will supervise the accused;
• How the accused will attend court;
• Separation from the complainant or witnesses;
• Employment or education;
• Treatment or counselling, where appropriate;
• Weapons;
• Communication devices;
• Travel;
• Substance-use concerns;
• House arrest or curfew, if necessary; and
• Other practical arrangements.

A plan should be realistic. Conditions that the accused cannot reasonably follow may increase the risk of an unintentional breach.

The most restrictive possible plan is not automatically the best plan. The proposed conditions should be necessary, appropriate and connected to the risks identified in the case.

Evidence at a Bail Hearing

Information considered at a bail hearing may include:

• A summary of the allegations;
• The accused’s criminal record;
• Outstanding charges;
• Previous compliance with court orders;
• The accused’s personal and community circumstances;
• The proposed residence;
• Employment or educational information;
• The proposed surety’s evidence;
• The accused’s release plan;
• Information concerning the complainant or witnesses; and
• Other evidence relevant to the statutory grounds.

The evidentiary rules at a bail hearing differ from those at trial. The court may receive information that would not necessarily be admitted in the same manner at trial.

The bail hearing does not determine the accused’s guilt or innocence.

What Happens During a Bail Hearing?

The Crown may consent to a proposed release or oppose release.

Where release is contested:

1. The Crown presents the allegations and reasons for seeking detention or restrictive conditions.
2. The defence presents the proposed release plan.
3. A proposed surety may testify and be questioned.
4. The lawyers make submissions concerning the applicable law and evidence.
5. The justice decides whether the accused will be released or detained.
6. If release is ordered, the justice determines the form of release and conditions.

The process may vary depending on whether the Crown or accused bears the burden.

Common Bail Conditions

Release conditions may include:

• Reporting to police or another supervisor;
• Residing at an approved address;
• Remaining in the residence during specified hours;
• Following house-arrest conditions;
• Having no contact with named people;
• Staying away from specified locations;
• Not possessing weapons;
• Not consuming alcohol or non-prescribed drugs;
• Not possessing specified electronic devices;
• Surrendering a passport;
• Remaining within Ontario or another geographic area; or
• Following the supervision of a surety.

Conditions must be followed exactly unless they are formally varied or removed.

No-Contact Conditions

A no-contact condition may prohibit both direct and indirect communication.

Indirect communication may include sending a message through:

• A family member;
• A friend;
• A child;
• Social media; or
• Another third party.

The complainant cannot personally give the accused permission to ignore a no-contact order.

If communication is necessary for children, property, employment or another important reason, a lawyer can assess whether a formal variation should be requested.

Changing Bail Conditions

Release conditions do not automatically change because the accused and complainant agree to different arrangements.

Depending on the type of order and circumstances, a change may require:

• Written consent from the Crown;
• Approval by a justice;
• A formal application; or
• A bail review in a higher court.

Until the change is legally approved, the existing conditions remain in effect.

An accused person should not test or ignore a condition while waiting for it to be changed.

Breaching Bail Conditions

Failing to follow a release condition may result in:

• A new criminal charge;
• Arrest;
• Cancellation of the existing release;
• A new bail hearing;
• More restrictive conditions; or
• Detention while the original charges proceed.

A breach allegation may also affect the Crown’s position in the original case.

The Crown must prove the breach charge, including the required mental element. However, an accused person should obtain legal advice rather than assume that a condition is optional or unenforceable.

Can a Surety Withdraw?

A surety is not required to continue indefinitely if they are no longer willing or able to supervise.

The surety may apply to be relieved of the obligation. This process can result in the accused returning to custody unless another lawful release arrangement is made.

A surety who wishes to withdraw should obtain instructions from the court or legal advice. The surety should not simply stop supervising while remaining named on the release order.

Bail Reviews

An accused who is detained may be able to seek a bail review in the Superior Court of Justice.

A bail review is not simply a second opportunity to repeat the same hearing. The application generally requires a recognized legal basis, such as:

• An error in the original decision;
• A material change in circumstances; or
• Other grounds recognized by law.

The transcript, exhibits, release plan and reasons from the original hearing may be important.

Strict procedural requirements and timelines may apply.

Why Bail Preparation Matters

A bail hearing may occur shortly after arrest, but the resulting order can remain in place for months or longer.

A properly prepared hearing may require:

• Identifying suitable sureties;
• Explaining the surety’s legal responsibilities;
• Confirming a residence;
• Gathering employment or educational information;
• Addressing no-contact concerns;
• Developing realistic supervision arrangements;
• Reviewing the accused’s record and existing orders; and
• Preparing responses to concerns raised by the Crown.

An incomplete or unrealistic plan may make release more difficult.

Why Experience With Police Investigations Matters

Before becoming a criminal defence lawyer, Jake Shen served as a Toronto police officer. This experience provides practical insight into arrest, police release decisions, risk assessments and the information presented to the Crown following an investigation.

As defence counsel, Jake reviews the allegations and the accused’s circumstances, prepares the proposed release plan and assists sureties in understanding the responsibilities they may be asked to assume.

Speak With a Toronto Bail Lawyer

If a family member or another person has been arrested and held for bail in Toronto, Markham or elsewhere in Ontario, early preparation may help identify suitable sureties and develop a workable release plan.

Contact Jake Shen to discuss the charges, the proposed surety and the next steps in the bail process.

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