How are Bail Conditions Imposed?
Most people who face criminal charges won’t be subject to bail conditions. It is generally presumed that release will occur at the earliest opportunity and on the least onerous grounds.
Release is governed by section 515 of the Criminal Code which codifies the ladder principle
Bail conditions can be imposed, but only if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention in s. 515(10): securing the accused’s attendance in court, ensuring the protection or safety of the public, or maintaining confidence in the administration of justice.
Only conditions specifically tailored to the individual circumstances of the accused can meet the required criteria. Bail conditions are intended to be particularized standards of behavior designed to curtail risks posed by the accused and are to be imposed with restraint. Restraint is required because bail conditions limit the liberty of someone who is presumed innocent and could face additional criminal charges of failing to comply if they are accused of breaching their bail conditions.
The Code requires police to release the person from custody unless the officer believes that detention is necessary in the public interest: s. 498(1.1)
When a person is arrested the police will decide whether to:
- Release them without any process pending further investigation,
- Release them using an appearance notice or an undertaking: see sections 498 and 499 CCC
- Hold them for court
In practice an appearance notice is used when release is appropriate and there is no need for the accused to have any conditions attached to their release. If police deem conditions to be necessary that an undertaking is required.
If an accused is held for court then release will have to be determined through negotiations with Crown Counsel. If release can be agreed upon then conditions will almost surely be imposed by the court. Similarly, if release can not be agreed upon and a judge is required to determine if someone will be released they will also determine any bail conditions.
In our next post we will look at how bail conditions can be varied after they are imposed.