Bail Requirement
A judge or justice of the peace will determine whether to grant bail at a bail hearing. This is a legal proceeding where the accused must show that there is no just cause for their detention while they await trial. A judge or justice of the peace considers a number of factors when making this decision including:
The purpose of bail is to ensure that an accused person appears for all court proceedings. It is a form of security that is typically money that the person must provide to be released from pre-trial detention, with the understanding that if they miss any court dates, the bail will be forfeited and the accused will return to jail. Those who cannot afford to pay their bail may also be eligible for bail assistance programs, which can help them post the required amount.
Bail allows the courts to hold less people in custody and reduce the burden on taxpayers. It is expensive to keep accused persons in custody until they have been convicted of a crime and it may take months, if not years, to get them all ready for trial.
When the judge or justice of the peace decides to release an accused person on bail, they will also set out a number of conditions that the accused must meet while they are free from jail. These conditions will depend on the case and the accused, but might include requirements that they stay away from certain places or not be around specific individuals. These are meant to protect people who may be vulnerable or at risk, such as witnesses, victims and those involved in the criminal justice system.
Why is Bail Given?
People who are not wealthy or who live in impoverished communities are more likely to be denied bail, meaning that they must spend months or even years incarcerated before their trials. Studies have shown that this prevents these people from being able to attend work, care for their families and make ends meet. It also disproportionately affects minorities.
There is a growing movement in the United States to abolish cash bail. Many people believe that this will increase public safety, because it will reduce the number of unnecessarily incarcerated people who could otherwise be at home with their families and working to provide for them. It is also argued that eliminating cash bail will reduce poverty, as it will allow poor people to remain in their homes, where they can continue to work and attend to their families.
In Canada, the Supreme Court of Canada (SCC) has made significant rulings on bail and related Charter considerations. These decisions are important, as the SCC is the highest court in our country and their judgments have considerable sway over the law in all provinces and territories.
In addition, the SCC has ruled that when a Crown prosecutor wants to detain an accused person without bail at a pre-trial hearing, they must show that there is a “compelling public interest” in their detention, bearing in mind specific circumstances such as the strength of the prosecution’s evidence, the gravity of the offence and whether a weapon was used (known as the tertiary ground). This is a significant shift in the balance of power and it will have a significant impact on our justice system.