Practicing criminal law requires knowledge of the law, the court process, and the participants. Criminal lawyers use certain terms and phrases to describe the process and the law to make their submissions accurate, precise and persuasive. Sometimes legal arguments are reduced to the meaning or interpretation of a word or phrase.
In an effort to clarify the law and process, I’ve started a new series about legal terms. This time, I’m talking about bail and the process of securing a person’s release from custody before their trial.
In Canada, a person can be released by the police if they promise to appear in court on a later date. The police or prosecution can detain a person in custody after they are arrested, leaving the decision to release a person to a judge. The hearing in which the judge decides whether a person will be released on bail is called a bail hearing or application for judicial interim release.
The following are definitions for terms commonly used in bail hearings, or the law relating to bail. Don’t forget to check back for definitions of legal terms for other areas of criminal law.
- Your matter in court is a single proceeding. It is put on pause between court dates until your charges are dropped, you are acquitted or your are sentenced. Every time the matter is put on pause, it’s called an Adjournment or Remand. The term Adjournment generally refers to out-of-custody matters.
Application for Judicial Interim Release
- This is another term for bail hearing, where the judge decides if an accused person is being released from custody before their trial or sentencing.
- A person is on Bail when they have been charged and released before their trial or disposition. The police, a prosecutor or a judge can release a person from custody after they’ve been arrested. The Canadian bail system is based mostly on restrictive conditions like abstaining from alcohol, a curfew or a no-contact order. In certain cases, a cash deposit or surety may be required. A person stops being on bail when their charges are dropped, they are acquitted, or they are sentenced.
- A bail review is a bail appeal. A person can only apply for bail once per arrest. If the judge erred at law at the bail hearing, or if there has been a material change in the person’s circumstances since being denied bail, then an accused person can appeal. Certain waiting periods apply.
- Sometimes, the judge or prosecutor requires that cash be deposited at the Court Office before a person is released on bail. Cash deposits range from $50 to $100,000 or more.
- A curfew is one possible condition found on an undertaking or recognizance. Most curfew conditions require an accused person to remain at home at night, but it is possible for a curfew to run 24 hours a day.
- An undertaking or recognizance may contain a condition that restricts contact with a certain person or group of people. These types of conditions commonly arise in domestic assault offences and other violent offences. A person who is bound by a no-contact order may not contact the protected person unless exceptions are listed on the order.
Not Attend Condition
- A condition on an undertaking, recognizance or court order that requires that a person does not go to a certain place.
- The Officer-In-Charge is generally a high ranking police officer who decides whether an accused person can be released by police, or they must be detained until a bail hearing. Sometimes the Officer-In-Charge will allow a person to be released on an order called an undertaking, which is an order that restricts a person’s freedom using conditions.
- The time a person serves in custody before they are sentenced.
- There are three grounds the Court can rely on to deny a person’s bail. The first ground is called the primary ground. This ground focusses on whether the accused person will show up in court to deal with their charges. The Court will look at the person’s ties to the community, whether they’ve failed to attend court in the past, or for any other reason they might choose to skip court. The accused person can be bound by conditions, pay a cash deposit, or secure a surety to address primary ground issues.
Promise To Appear (PTA)
- A Promise to Appear is a document that proves that the accused person has been served with notice of their court date, time and location, and their obligation to attend. The PTA is signed by the accused person, and can be used as evidence to show that the person knew about the court date. When a person signs a promise to appear, it becomes a crime to miss court, unless a lawyer attends on their behalf. Click here to find out more about what happens if you miss court
- A Recognizance is a court order that outlines the terms of a person’s release from custody. It is similar to an undertaking in that it restricts the person’s freedom by putting them on conditions. If a person breaches a condition of an undertaking or recognizance, they could be charged with a new offence and taken into custody. A recognizance also requires a person to promise to pay a certain amount of money if they breach any of its conditions.
- Your matter in court is a single proceeding. It is put on pause between court dates until the charges are dropped, you are acquitted or sentenced. Every time the matter is put on pause, it’s called an Adjournment or Remand. The term Remand generally refers to adjournments of matters for people in custody.
- A condition on a court order that requires a person to report to a bail supervisor or probation officer at a certain time and place.
- When a person is released on bail, they are usually bound by court order called a recognizance. The recognizance outlines the terms of the person’s release. If a person who is bound by a recognizance is alleged to have breached their conditions or committed new crimes, they are brought back into custody. During one of their first appearances in court, the Crown can request that a judge terminate or revoke the person’s recognizance, and cause the accused person and surety to have to pay the amounts listed on the recognizance.
- There are three grounds the Court can rely on to deny a person’s bail. The second ground, or secondary ground, is essentially a risk assessment. The Court decides whether there is a substantial likelihood that the accused person will commit further offences or breach the conditions of the bail order. The Court looks at the person’s criminal history and the current offences to determine whether there is a bail plan that can address any risks the person might present if released.
- 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. Click here for more information about being a surety
- There are three grounds the Court can rely on to deny a person’s bail. The third ground, or tertiary ground, allows the court to detain a person until their trial to maintain public confidence in the criminal justice system. The judge will consider the apparent strength of the crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential for a lengthy sentence if convicted.
- A legal order by a court or police officer that restricts a person’s freedom. An Undertaking can be issued by a police officer or a judge. When a person signs an undertaking, they are promising to follow the conditions found in it. If the conditions are breached, the person could be criminally charged. Click here for more information about Undertakings
- A warrant is a legal document that authorizes the police or some other designated person to arrest someone, search a place or person, or carry out some other legal action. Click here for more information about Warrants
*note: the information on this page is not legal advice.