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When a person is charged with a criminal offence, arrested and taken into police custody, a complex set of rules dictates whether they are released by the police, a crown attorney, a judge, or at all.

A person is on bail when they are allowed to be in the community between their arrest and the disposition of their charges, either after a trial or upon a guilty plea and sentencing before the Court. A Court only decides a person’s bail once, so a bail hearing is a pivotal and important part of a person’s case. It is important that a person consults a lawyer prior to making an application for bail.

A person can be released with a Summons to attend court at a later date, or held in custody until a bail hearing can take place.



Grounds to Hold a Person in Custody

A bail application is a court hearing where the Crown and Defence present their arguments, and a judge decides whether to release the accused person on bail conditions. There are three grounds the court can rely on to deny a person bail:

  • Primary Ground: The detention of a person is justified where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.
  • Secondary Ground: A person’s detention is justified where the detention is necessary for the protection or safety of the public, including any substantial likelihood that the accused will, commit a criminal offence or interfere with the administration of justice if released from custody.
  • Tertiary Ground: In rare cases, the accused person’s detention is justified if the detention is necessary to maintain confidence in the administration of justice.


Release Orders

There are three common forms of release:

  • Summons/Promise to Appear: This category of document requires a person to appear in court on the date listed on the document.
  • Undertaking with Conditions: A document that restricts a person’s freedom by placing restrictions on them in the form of conditions. A person can be placed on an undertaking by a Judge, Justice of the Peace, or Police Officer. Some common conditions on an Undertaking are:
    • Keep the peace and be of good behaviour
    • Not to contact or communicate with a certain person
    • Not to go to certain places or be with certain people
    • Not to possess or consume alcohol or drugs
  • Recognizance: A Recognizance is similar to an undertaking in that it restricts a person’s freedom by putting them on conditions. A recognizance also requires a person to promise to pay a certain amount of money if they breach the conditions of their recognizance.


Cash Deposit or Surety

In certain cases, the Court could require a person to deposit cash at the courthouse in order to make sure the accused person appears in court when necessary and abide by the conditions placed on them. In these cases, a friend or family member can attend to the court house and deposit the cash to secure the accused’s release.

A surety is a person who has signed a written promise to pay the court a specified amount of money if the accused person breaches their release order. For more information about being a surety, click here.


* note: the information on this website is not legal advice and should not be relied on as such.