Bail Hearings in Ontario: How They Work
Complete guide to bail hearings in Ontario under Criminal Code s.515, including sureties, conditions, show cause hearings, reverse onus situations, and bail review.
A bail hearing is often the first significant step in a criminal case. For an accused person who has been arrested and detained by police, the bail hearing determines whether they will be released back into the community while their case works its way through the court system, or whether they will remain in custody, potentially for months, until the matter is resolved. The stakes are high, and understanding how the bail process works is essential for anyone facing criminal charges in Ontario.
This guide explains the bail hearing process in Ontario, the factors that courts consider, the role of sureties, common bail conditions, reverse onus situations, and what options exist if bail is initially denied.
The Right to Bail: Section 515 of the Criminal Code
The starting point for bail in Canada is the presumption of innocence and the constitutional right not to be denied reasonable bail without just cause, as guaranteed by section 11(e) of the Canadian Charter of Rights and Freedoms. Section 515 of the Criminal Code establishes the framework for judicial interim release (the formal term for bail).
The general rule, known as the "ladder principle," requires the justice to release the accused on the least restrictive conditions necessary. The Criminal Code establishes a hierarchy of release, starting from the least restrictive:
- Undertaking without conditions: A simple promise to appear in court
- Undertaking with conditions: A promise to appear with specific conditions attached
- Recognizance without surety: A pledge of a specified amount of money, without a surety
- Recognizance with surety: Release supervised by a surety who pledges money
- Cash deposit: The accused or surety deposits actual cash with the court
The justice must move up this "ladder" only as far as necessary to address the concerns that exist in the particular case. The Crown bears the burden of showing why a more restrictive form of release is required, or why detention is justified.
The Three Grounds for Detention
Under s.515(10) of the Criminal Code, a justice may order detention on one or more of three grounds:
Primary ground (s.515(10)(a)): Detention is necessary to ensure the accused attends court. The court considers factors such as the accused's ties to the community, employment, family connections, residential stability, and any history of failing to appear for court dates.
Secondary ground (s.515(10)(b)): Detention is necessary for the protection or safety of the public, including any victim or witness. This is the most commonly argued ground. The court considers the nature of the offence, the strength of the Crown's case, the accused's criminal record, and any risk the accused poses if released.
Tertiary ground (s.515(10)(c)): Detention is necessary to maintain confidence in the administration of justice. This ground requires the court to consider the apparent strength of the case, the gravity of the offence, the circumstances of the offence (including whether a firearm was used), and the potential for a lengthy period of imprisonment. This ground is typically reserved for the most serious offences.
The Role of Sureties
A surety is a person who agrees to take responsibility for supervising the accused while on bail. The surety system is central to Ontario's bail process, and many accused persons are required to have one or more sureties as a condition of release.
A surety's obligations include:
- Ensuring the accused attends all court appearances
- Monitoring the accused's compliance with bail conditions
- Reporting any breaches of conditions to the police
- Pledging a sum of money that may be forfeited if the accused fails to comply
The court assesses proposed sureties on several criteria:
- Relationship to the accused: Sureties are typically family members, close friends, or persons with a significant relationship to the accused
- Financial means: The surety must have the financial ability to make the pledge. The court may ask about income, assets, and debts
- Criminal record: Sureties generally should not have a criminal record, particularly for offences of dishonesty
- Understanding of the role: The surety must understand that they are responsible for supervising the accused and that their money is at risk
- Willingness to report: The surety must be prepared to contact police if the accused breaches conditions
The surety's pledge is a promise to forfeit a specified amount of money if the accused violates bail conditions or fails to appear. In most cases, the surety does not have to deposit cash upfront but agrees to pay if called upon (this is called "pledging" rather than "depositing").
Common Bail Conditions
Bail conditions are tailored to the specific case and are designed to address the concerns identified by the court. Common conditions include:
- Residing at a specified address with the surety
- Obeying a curfew (typically between specified evening and morning hours)
- Not possessing weapons
- Not consuming alcohol or non-prescription drugs
- No contact with the complainant or specified witnesses
- Not attending at certain locations
- Surrendering passport and not leaving the province or country
- Reporting to police at specified intervals
If you are released on conditions, strict compliance is essential, as a breach is a separate criminal offence. See our guide on breaches of conditions for more information. The Ontario government's criminal law resources also provide general information about the bail process.
Reverse Onus Situations
In certain cases, the burden shifts to the accused to "show cause" why their detention is not justified. Under s.515(6), reverse onus applies in the following situations, among others:
- The accused is charged with murder or an offence under s.469 (such as treason)
- The accused is charged with certain firearms offences, including s.95 (loaded prohibited/restricted firearm) and weapons trafficking
- The accused is charged with a criminal organization offence
- The accused is charged with a terrorism offence
- The accused was on bail for another indictable offence at the time of the new alleged offence
- The accused is charged with an offence involving domestic violence and has been previously convicted of an offence involving violence against an intimate partner
- The accused is not ordinarily resident in Canada
In reverse onus cases, the accused bears the burden of demonstrating a release plan that adequately addresses the court's concerns. This typically requires a strong surety, a clear plan of supervision, and a demonstrated ability to comply with conditions. For certain offences like weapons charges, meeting this burden can be particularly challenging.
Bail Hearings in Toronto
In Toronto, bail hearings are conducted at the Ontario Court of Justice. The specific location depends on the circumstances:
Weekday bail hearings for persons held in custody are typically conducted at the courthouse associated with the division where the arrest occurred or at a central bail court location. Toronto bail courts process a high volume of cases daily.
Weekend and holiday bail hearings are conducted by justices of the peace via video link from detention centres. These hearings follow the same legal principles but operate under tighter time constraints.
A bail hearing must be held within 24 hours of arrest, or as soon as practicable thereafter. If the Crown is not ready to proceed with the bail hearing, the accused may consent to an adjournment (remand) to allow time to prepare a stronger release plan, including finding a surety.
For those appearing in Toronto courts, our Toronto courthouse guide provides practical information about court locations and procedures.
Bail Review
If bail is denied or if the conditions imposed are too restrictive, the decision can be reviewed by a Superior Court judge under s.520 of the Criminal Code. A bail review is not a re-hearing of the bail application but a review of the original decision for errors of law, changes in circumstances, or other grounds justifying intervention.
Grounds for a successful bail review include:
- The justice made an error of law in the original hearing
- There has been a material change in circumstances since the original hearing
- New evidence is available that was not before the original justice
- The original decision was clearly unreasonable
A bail review can also be used to vary conditions that have become unworkable or unnecessary. For example, if an accused's employment changes and the existing curfew hours are incompatible with their new work schedule, a variation may be sought.
Understanding your rights during the arrest process is also important, as what happens during arrest and detention can affect the bail hearing.
Speak with a Criminal Lawyer. A bail hearing is a critical proceeding that determines whether an accused person remains free while their case is resolved. The outcome depends on the strength of the release plan, the quality of the proposed sureties, and the effectiveness of legal advocacy. If you or a family member is detained and facing a bail hearing, contact a criminal lawyer immediately to ensure you have experienced representation at this crucial stage.
Frequently Asked Questions
- What is a bail hearing?
- A bail hearing, also called a show cause hearing, is a court proceeding under s.515 of the Criminal Code where a justice decides whether an accused person should be released from custody while awaiting trial. The justice considers whether detention is necessary to ensure the accused attends court, for public safety, or to maintain confidence in the justice system.
- What is a surety?
- A surety is a person who agrees to supervise the accused while on bail and pledges a sum of money (or deposits cash) as a guarantee. The surety must be approved by the court and must demonstrate that they understand their obligations, have the financial means to pledge, and have no criminal record. If the accused violates bail conditions, the surety's pledge may be forfeited.
- What is reverse onus bail?
- In reverse onus situations under s.515(6), the accused bears the burden of showing why their detention is not justified. This applies to certain serious offences including murder, firearms offences, criminal organization offences, terrorism offences, and situations where the accused was already on bail for another offence at the time of the new charge.
- Where are bail hearings held in Toronto?
- In Toronto, bail hearings for persons held in custody are typically conducted at the Toronto Bail Centre, which is part of the Ontario Court of Justice. The specific courthouse depends on where the accused is held and the nature of the charge. Weekend and holiday bail hearings are conducted via video from detention centres.
- What happens if bail is denied?
- If bail is denied, the accused remains in custody until the case is resolved, which could mean months or even years in pre-trial detention. However, a bail denial can be appealed through a bail review under s.520 of the Criminal Code before a Superior Court judge. New or changed circumstances can also support a fresh bail application.
- Can bail conditions be changed?
- Yes. Bail conditions can be varied by applying to the court. The accused or Crown can bring an application under s.515.1 or through a bail review under s.520 or s.521. Common variations include changing reporting conditions, adjusting curfew times, or modifying no-contact provisions when circumstances change.