What Happens at a Bail Hearing
A bail hearing — formally called a “judicial interim release” hearing — is the court proceeding where a justice of the peace or judge decides whether an accused person will be released from custody while waiting for their criminal case to be resolved. Most bail hearings in Ontario are held at the Ontario Court of Justice, typically within 24 to 48 hours of arrest.
The hearing follows a structured format. The Crown presents the allegations and argues why the accused should be detained. The defence presents a release plan — proposed conditions, a surety if needed, and arguments for why the accused can be safely released. The justice then decides: release with conditions, or detention.
The starting point is critical: under Canadian law, the accused is presumed innocent and is entitled to reasonable bail unless the Crown can show a reason for detention. The burden is on the Crown, not the accused — except in reverse onus situations, which are discussed below.
The Three Grounds for Detention
The Criminal Code sets out three grounds on which a justice can deny bail. The Crown must establish at least one of them.
Primary Ground — Section 515(10)(a)
Detention is necessary to ensure the accused attends court. This ground focuses on flight risk. The Crown may argue that the accused has no ties to the community, has access to resources to flee, or has a history of failing to attend court. In practice, the primary ground is rarely the main battleground in serious cases — most accused persons have community ties and no history of absconding.
Secondary Ground — Section 515(10)(b)
Detention is necessary for the protection or safety of the public, including any victim or witness. This is the most commonly contested ground. The Crown will point to the nature of the allegations, the accused’s criminal record, any history of violence, and whether the accused was on bail or probation at the time of the alleged offence. The defence responds with a release plan that addresses the Crown’s concerns: a strong surety, strict conditions, a residential requirement, and any other measures that reduce the risk to public safety.
Tertiary Ground — Section 515(10)(c)
Detention is necessary to maintain confidence in the administration of justice. This ground applies to serious offences where releasing the accused could undermine public trust in the justice system. The justice considers four factors: the apparent strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the offence (including whether a firearm was used), and the potential for a lengthy term of imprisonment upon conviction.
The tertiary ground is often the most difficult to overcome because it involves a balancing exercise. Even where the accused poses no flight risk and no safety risk, the seriousness of the charge alone can justify detention — at least at first instance.
Reverse Onus Situations
In most cases, the Crown bears the burden of showing why the accused should be detained. But the Criminal Code creates several reverse onus situations where the burden shifts to the accused to show why they should be released:
- The accused is charged with an indictable offence while already on bail for another indictable offence (section 515(6)(a)(i))
- The offence involves a firearm or other prohibited weapon (section 515(6)(a)(viii))
- The accused is charged with failing to comply with a bail condition (section 515(6)(c))
- The offence is alleged to involve criminal organization activity or a terrorism offence
- The offence is murder or an attempt or conspiracy to commit murder
In reverse onus cases, the accused must present a compelling release plan — typically with a strong surety, strict conditions, and evidence addressing the specific concerns. A reverse onus makes bail harder to obtain, but it does not make it impossible. Bail is granted in reverse onus cases regularly, including for serious charges.
The Role of Sureties
A surety is the backbone of most contested bail plans. A surety is a person — usually a family member, partner, or close friend — who agrees to supervise the accused in the community and pledges a sum of money that can be forfeited if the accused breaches their conditions or fails to attend court.
At the bail hearing, the surety takes the stand and testifies. The Crown cross-examines them. The justice assesses whether the surety is:
- Credible and responsible — does the surety understand the obligations and take them seriously?
- Capable of supervision — does the surety live with or near the accused? Can they actually monitor compliance?
- Willing to report breaches — would the surety call the police if the accused violated a condition, or would they cover for them?
- Financially at risk — is the pledged amount meaningful enough that the surety has a real incentive to ensure compliance?
A weak surety can sink a bail hearing. A strong surety can win one. Preparing the surety — making sure they understand the conditions, the obligations, and what cross-examination will look like — is one of the most important things a defence lawyer does before a bail hearing.
Bail Conditions
If bail is granted, it comes with conditions. These are restrictions the accused must follow while on release. Common bail conditions include:
- A no-contact order — the accused must not communicate directly or indirectly with the complainant or specified witnesses
- A curfew — the accused must be at the surety’s residence between specified hours (typically 10 p.m. to 6 a.m. or similar)
- Abstention from alcohol or drugs
- Surrender of passport and a requirement not to leave the province or jurisdiction
- Reporting to police at a specified frequency
- A weapons prohibition
- A residential requirement — the accused must live at a specified address with the surety
Conditions should be reasonable and connected to the risk the Crown has identified. Defence lawyers often negotiate the specific conditions before or during the hearing — proposing conditions that are strict enough to address the Crown’s concerns but not so restrictive that they make daily life impossible.
What Happens If Bail Is Denied
If the justice denies bail, the accused is remanded into custody at a provincial detention centre — not a federal penitentiary — to await trial. This can mean months or even years in pretrial custody, depending on the complexity of the case and the court schedule.
However, a denial at the bail hearing is not the final word. The accused has the right to a bail review before the Superior Court of Justice under section 520 of the Criminal Code. A bail review is not simply an appeal of the original decision — it is a fresh hearing where a Superior Court judge reconsiders the question of release. The judge can consider new evidence, a revised release plan, a different or additional surety, and any changes in circumstances since the original hearing.
Bail reviews are commonly successful when the original hearing was conducted on short notice without a strong surety or release plan, or where the accused’s circumstances have changed materially. In R v. B.C., our client was accused of criminal negligence causing death and was granted bail in Oshawa Court despite fierce opposition from the Crown Attorney to his release. Serious charges do not automatically mean detention.
How to Find Out If Someone Made Bail
When a family member or friend is arrested, one of the first questions is whether they have been released. There is no public online database in Ontario that shows real-time bail status. To find out if someone made bail:
- Call the courthouse where the bail hearing was scheduled. The clerk’s office can confirm whether the person was released or remanded.
- Call the detention centre. If the person is no longer in custody, they have been released.
- Contact the lawyer. If the accused has retained counsel, the lawyer’s office can provide an update after the hearing.
If you are a potential surety, contacting a criminal defence lawyer early is the most effective step. The lawyer can explain what the process will look like, prepare you for cross-examination, and coordinate the release plan before the hearing takes place.
Breaching Bail Conditions — Section 145
Breaching a bail condition is a criminal offence under section 145 of the Criminal Code. It is not a minor matter. A breach charge results in a new arrest, a new criminal charge, and a new bail hearing — this time with the Crown arguing that the accused has demonstrated they cannot be trusted to follow conditions.
Common bail breaches include:
- Contacting the complainant in violation of a no-contact order — including through third parties, social media, or indirect communication
- Missing curfew or failing to be at the required residence
- Consuming alcohol or drugs contrary to an abstention condition
- Failing to report to police or to the surety as required
- Leaving the jurisdiction without permission
The consequences of a breach extend beyond the new charge. A breach makes it significantly harder to get bail on the original charge. It also gives the Crown a powerful argument on sentencing if the original charge results in a conviction. Courts treat breach charges seriously because the bail system depends on accused persons complying with their conditions. Even an accidental or technical breach — such as briefly returning home to pick up belongings when the address is listed as the complainant’s residence — can lead to arrest and detention.
What Makes a Strong Release Plan
Bail hearings are won on preparation. The strongest release plans share common features:
- A credible surety who understands the obligations, has no criminal record, and can demonstrate the ability to supervise
- A residential plan — a specific address where the accused will live, ideally with the surety
- Conditions that address the Crown’s concerns — a no-contact order, curfew, or abstention from alcohol, tailored to the specifics of the case
- A meaningful financial pledge — the amount pledged by the surety must be significant enough that forfeiture would be a real consequence
- Employment or education — evidence that the accused has productive ties to the community
A bail hearing is not a trial. The question is not whether the accused is guilty or innocent. The question is whether the accused can be safely released into the community with conditions and supervision while the case works its way through the system. A well-prepared release plan, presented by experienced counsel, is the most effective way to answer that question.
RH Criminal Defence represents accused persons at bail hearings and bail reviews across Ontario, including at courthouses in Toronto, Brampton, Newmarket, Oshawa, and Milton. If someone you care about has been arrested and is being held for a bail hearing, contact the office immediately. The earlier a lawyer is involved, the stronger the release plan will be.