Cash Bail

A frequent question we get is, “how much money am I going to need for bail?” Thankfully, the answer to that question is usually none. Unlike the United States, cash bail will only come up in a small percentage of cases – usually serious charges.

The Supreme Court of Canada has clearly rejected the cash bail approach to bail that is apparently quite prevalent in the United States:

“cash bail should be relied on only in exceptional circumstances.” 

In the ordinary course it will be for the Crown to show that detention is necessary on either the primary, secondary or tertiary grounds. These are simply references to the considerations in section 515(10) of the Criminal Code. The grounds can be summarized:

• Primary: A concern about whether the accused will appear in court

• Secondary: Whether there is a substantial likelihood that the accused will commit a further offence which would endanger public safety

• Tertiary: Where detention is necessary to maintain confidence in the administration of justice

Bail in Canada operates on the ladder principle. It is generally presumed that release will occur at the earliest opportunity and on the least onerous grounds: R. v. Antic, 2017 SCC 27. The ladder principle generally requires that a justice not order a more onerous form of release unless the Crown shows why a less onerous form is inappropriate. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.

The starting point is release without any payment, surety or conditions. The analysis then moves up the ladder only if release without any conditions or financial obligation would be inappropriate. If there is a need for conditions then only those connected to the grounds mentioned above can be applied. If conditions alone aren’t enough to satisfy the court that release is appropriate only then can things like cash or surety be considered. In other words, cash is at the top of the ladder. 

The Supreme Court of Canada has explained:

"…requiring cash can be unfair, as it makes an accused person’s release contingent on his or her access to funds."

The Court has made clear that an inability to pay cash bail should not be a reason that someone serves their sentence prior to their trial.