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Solomon Friedman: Bail is a fundamental legal right, not a privilege


Bail is a fundamental legal right, not a privilege

Solomon Friedman, The Ottawa Citizen

August 23, 2012

Bail is in the news again. Following revelations that Christopher Husbands, the accused Eaton Centre shooter, was apparently out on bail at the time of the shooting, some federal and provincial politicians are calling for greater oversight and, in certain cases, more restrictions on who can be released before trial.

Most people who are arrested, and formally charged by police, are often released, usually with few or no conditions. In other circumstances, the police will release an accused, provided that he or she undertakes to comply with certain restrictions.

Officers also have the discretion to seek the detention of a charged individual. In those cases, the Criminal Code requires that the accused be taken before a justice within 24 hours of arrest.

When an individual is brought before a justice, the process of judicial interim release is engaged. Known informally as “bail,” this legal mechanism allows for accused persons to be released from custody pending a trial or resolution of their criminal charges.

Bail is not a privilege, it is a constitutional right. Our Charter of Rights and Freedoms guarantees that anyone charged with an offence has the right “not to be denied reasonable bail without just cause.”

Accordingly, pre-trial detention is the exception, not the rule. This makes sense of course, when one considers the bedrock principle that underlies our justice system: the presumption of innocence. When a “charge” is laid, the state is merely alleging that an individual has committed some wrongdoing. The offence has not been proven and the evidence has not been tested in court. It is not unheard-of for seemingly rock-solid Crown cases to crumble in the face of vigorous cross-examination and legal argument at trial.

For most offences, the Crown bears the burden of demonstrating why an individual should be detained pending trial. This onus is reversed however, for the most serious of offences or where a person is alleged to have committed a new offence while out on a previous bail order.

Where the Crown does not consent to release, there are only three reasons (known as “grounds” in the Criminal Code) that can justify the pre-trial detention of an accused person.

First, where there are legitimate concerns that an individual will flee the jurisdiction and not attend court as required, detention may be justified. In those circumstances, the court will examine the criminal record, if any, of the accused, and determine if there is a history of non-compliance with court orders. Have previous bail conditions been breached? Has the accused failed to appear in the past?

Second, detention can also be justified where there is a “substantial likelihood” that the accused, if released, will commit an offence, interfere with the justice system or otherwise endanger the safety of the public.

Finally, even where there are no concerns about flight or public safety, an individual can still be denied bail if detention “is necessary to maintain confidence in the administration of justice.” A court will examine all the circumstances of the alleged offence, including the apparent strength of the Crown’s case and the potential for a lengthy period of incarceration upon conviction. Courts have held that reliance on this catch-all provision should be resorted to sparingly, although it is not only reserved for the most heinous or horrific crimes.

Usually, at the outset of the bail hearing, the Crown prosecutor will read a summary of the allegations to the court. The accused will have an opportunity to ask questions or challenge portions of the ­alleged facts. It should be noted that a bail hearing is not a trial. The rules of evidence are relaxed and the hearing is usually conducted without full disclosure having been made to the defence. As bail is usually determined shortly after arrest, there is often not enough time for the police to prepare a full “trial brief” prior to the hearing.

One of the most common features at bail hearings is the use of “sureties.” A surety is an individual, often a family member or friend of the accused, who volunteers to serve as “the eyes and ears of the court” and assist in the supervision of the individual.

There is a common misconception, likely fuelled by our consumption of U.S. media, that obtaining bail requires the deposit of large amounts of cash. Cash bail is relatively rare in Canadian courts. Usually, a bond without deposit — a promise to pay cash in the event of a breach — from the surety and the accused will satisfy the court. Where a bond is posted, if the accused does breach the release conditions, the Crown can apply to “estreat” or forfeit the money that has been pledged.

While there may be the occasional headline-grabbing incidents of “bail gone bad”, for the vast majority of people on bail, pre-trial release simple recognizes the fact that our criminal justice system presumes all accused persons to be innocent until proven guilty. We do not imprison the innocent simply because they are accused of committing a crime.


Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at or 613-237-2290. Follow Solomon on Twitter at or at his website,

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