The law of bail: can someone charged with serious offences get bail?

The law of bail: can someone charged with serious offences get bail?

Date Updated: April 10, 2020
Written By: Ravi Prithipaul (Alberta Criminal Defence Lawyer)

Detailed Law Breakdown

Section 11(e) of the Canadian Charter of Rights and Freedoms guarantees the right to reasonable bail: “any person charged with an offence has the right (e) not to be denied reasonable bail without just cause”. Obviously, however, this does not mean that everyone who is criminally charged shall be released into the community.

The justification for pre-trial detention (that is, the denial of bail) is set out in section 510(10) of the Criminal Code. Broadly, speaking, there are three sets of considerations: (a) where the detention is necessary to ensure the accused’s attendance in court, (b) where the detention is necessary for the protection or safety of the public, and (c), if the detention is necessary to maintain confidence in the administration of justice.

Thoughts from a Criminal Lawyer’s Perspective

As section 11(e) of the Charter makes clear, one of our cherished freedoms is the right not to be imprisoned before trial. Jail is the most severe of punishments and is reserved for those judged guilty of serious crimes. A person awaiting trial is presumed innocent and innocent people should not be jailed.

On the other hand, the law recognises that certain situations require that the accused person not be released, at least not without conditions. The relevant factors are:

• The need to ensure attendance in court. This becomes an issue where, for instance, the accused crime has a significant criminal record for failing to attend court, or does not have a fixed address or ties to the community where he or she is charged.
• Protection of the public. A criminal record for similar or other offences, in particular, crimes of violence may form the basis for denial of release. The law also requires that the court consider whether there is a substantial likelihood that the accused will interfere with the administration of justice, such as by discouraging witnesses from cooperation with the authorities.
• The need to maintain public confidence in the administration of justice. For defence lawyers, this is a controversial notion. Members of the public may not understand basic concepts of due process that favour the right to pre-trial release. The danger is that this can become an easy, catch-all justification for denying bail.

All three of these factors can be countered with the imposition of appropriate conditions. For instance, a person who is charged in one province but who lives in another could be required to post cash bail, obtain a surety, or surrender travel documents. A person who could pose a risk to the public by re-offending could be required not to have contact with an alleged victim, and not to be within the area where the crime allegedly occurred. Public confidence in the administration of justice might require that release conditions be quite strict: a curfew, house arrest, ongoing reporting to the police, for instance.

This is a simplification of what is both a vitally important and yet complex area of criminal law. If you are arrested and charged with criminal offences, you should consult with a criminal defence lawyer at once to find out about your release. Mr. Ravi Prithipaul, Q.C. is an experienced criminal defence lawyer who can provide advice and represent you at a bail hearing. Contact him at 780 705 7737 or through his website: www.prithilaw.com.