Q -What is bail?
A - Bail is a process in which a person charged with an offence is released from custody with or without conditions pending final disposition of his or her case. The police may release you within 24 hours with or without conditions requiring you to come to court. If you are arrested and detained at the police station, you have the right to a bail hearing before a judge. If you are arrested over the weekend or when court is not sitting, you may appear before a justice of the peace first who, if you are not released at that time, may then remand you to a judge for a bail hearing. When you first appear before a judge, a bail hearing is not likely to occur. A bail hearing will occur no more than three working days after your first appearance at court when the judge sets the time and date for the bail hearing.
At a bail hearing a Justice of the Peace or Judge determines if you should be released or held in custody until your trial. You will be released without conditions unless the Crown Attorney shows cause (provides sufficient reasons) why you should be detained, or that there should be conditions put on your release. These hearings are known as "show cause" or 'judicial interim release' hearings.
Q - What is a judicial interim release?
A - A judicial interim release is an order by a Judge or Justice of the Peace that frees an accused person from custody prior to trial.
Q - What is a surety?
A - A surety is a person who enters into a bond for a certain amount of money or security on behalf of another person. The person is responsible for the accused person appearing in court and abiding by court imposed conditions. If the accused person does not comply, the surety may forfeit all or part of the bond.
Q - Does a judge have to grant bail?
A - No. However, Section 11(e) of the Canadian Charter of Rights and Freedoms guarantees the accused the right not to be denied reasonable bail without just cause.
There are some very serious crimes (set out in Section 469 of the Criminal Code of Canada) for which a judge may not grant bail unless the accused can show cause why he or she should be released. Examples are where the accused is charged with murder or treason. Other examples, where it is up to the accused to show cause why he or she should be released, are where the accused has failed to appear in court in the past or where the accused has been charged with violating a bail.
In all other cases, the Judge must grant bail unless the Crown Attorney shows that it is necessary to keep the accused in custody for one or more of the following reasons:
- To ensure the accused attends court. For example the accused may have a history of not coming to court when required.
- In order to protect the public including a victim or witnesses. For example, there is a strong likelihood that the accused will commit another offence if released from custody.
- Any other reason which shows that detention is necessary in order to maintain confidence in the administration of justice.
Q - Do I need a lawyer for a bail hearing?
A - Yes, if you can't afford a lawyer, you may qualify for Legal Aid. You should contact Legal Aid or your lawyer as soon as possible after your arrest. Often there will be a Legal Aid lawyer at the court. A lawyer will be familiar with the rules and conditions for release, and can assist with issues of fact or evidence that may arise.
Q - What are the terms and conditions of a judicial interim release?
A - At a bail hearing, the judge has many options, but must release the accused on the least restrictive terms possible. You may be released on your promise to appear at the trial. Otherwise, if the Crown Attorney shows cause why you should not be unconditionally released, the judge may put conditions on your release. These conditions could include
- reporting to the police regularly,
- staying in the province and turning in your passport
- staying away from the victim and other witnesses and/or co-accused
- staying away from alcohol or drugs
- not possessing firearms
- paying money to the court to ensure that you attend the trial
- providing a surety to ensure your attendance in court. A surety pledges property or other assets which may be forfeited if the accused fails to attend or violates the conditions of release
- any other condition that the judge decides is appropriate in the circumstances
Q - What if the accused breaks the terms of bail?
A - A Judge or Justice of the Peace may issue a warrant for the arrest of the accused if he or she is satisfied that there are reasonable grounds to believe that an accused has violated or is about to violate the terms of bail or has committed an indictable (serious) offence. The same applies if the accused fails to show up for court.
Breaking a bail condition without a reasonable excuse is a criminal offence that is punishable by up to two years imprisonment depending on how serious the breach is. Violations include failure to appear in court. As well as being charged criminally, your bail may be revoked and you may be detained in custody until the court has dealt with the original offence.
Finally, if security was posted by you or your surety the Crown Attorney may ask for it to be forfeited.
Q - Can a victim object to bail?
A - A victim who is concerned about the accused being released from custody should contact the Crown Attorney who can bring those concerns to the attention of the judge. The victim's concerns may be considered by the judge in deciding whether the accused is a threat to the safety of the public. If the accused is released on bail, the Crown Attorney or police may ask the judge to include a condition that the accused have no contact with the victim.
Q - Can a bail hearing be adjourned?
A - Yes. You or the Crown Attorney may ask the judge to adjourn that is to delay, a bail hearing. The hearing can only be adjourned for three days, if the Crown Attorney asks for the adjournment but you do not agree to it.
Q - Can an order granting or denying bail be appealed?
A - Yes. The Crown or the Defence may make an application to the Nova Scotia Supreme Court to review a bail order.
Q - Where can I get information on Crown Attorneys?
A - Crown Attorneys work for the Public Prosecution Service, either federally or provincially. The website for the Nova Scotia Public Prosecution Service is www.gov.ns.ca/pps You can also look in the blue pages of the phone book under 'Public Prosecution'. The website for the Public Prosecution Service of Canada is http://www.ppsc-sppc.gc.ca
Last reviewed: December 2015