Can you be denied bail in Canada?

Can you be denied bail in Canada?

The Canadian legal system places a significant emphasis on the presumption of innocence until proven guilty. One crucial aspect that reflects this principle is the concept of bail, allowing individuals facing criminal charges to be temporarily released from custody while awaiting trial. Section 11 (e) of the Canadian Charter of Rights and Freedom provides that any person charged with an offence has the right not to be denied reasonable bail without just cause. 

However, the path to securing bail is not without its complexities, and understanding the grounds for bail denial is essential for anyone navigating the Canadian Criminal Justice System.

What are the grounds for bail denial in Canada?

In Canada, the general rule is that bail is a right, and denial is an exception. The grounds for bail denial, as outlined in Section 515 of the Criminal Code, are carefully considered to strike a balance between individual rights and the broader concerns of public safety and the administration of justice. Let’s delve into some common factors that may lead to the denial of bail:

  • Flight risk (primary ground): If there is a significant risk that the accused will not appear in court as required, based on factors such as their ties to the community or previous failures to attend court, bail may be denied.
  • Risk to public safety (secondary ground): Bail may be denied if the accused poses a substantial risk to public safety, including a likelihood of committing further crimes if released.
  • Gravity of the offence (tertiary ground): For serious offences, especially those involving violence or terrorism, bail may be denied to maintain public confidence in the justice system.
  • Repeat offences: A history of previous convictions or breaches of bail conditions may lead to bail denial to prevent further criminal activity.
  • Intimidation of witnesses or victims: If there is a credible concern that the accused may intimidate or interfere with witnesses or victims, bail may be denied to protect the integrity of the legal process.
  • Risk of non-compliance: If the court determines that the accused is unlikely to comply with bail conditions, such as reporting requirements or orders to abstain from certain behaviours, bail may be denied.
  • Likelihood of additional offences: If the accused is believed to have a high probability of committing further offences while on bail, bail may be denied to prevent such occurrences.

Does the Crown bear the burden of proof in bail proceedings?

In the Canadian bail proceedings, the Crown prosecutor shoulders a significant responsibility—the burden of proof. This legal principle dictates that it is the Crown’s obligation to present compelling reasons to the court justifying the need for the detention of the accused. The Crown achieves this by carefully crafting a narrative that outlines the specifics of the case, emphasising factors that demonstrate the risk posed by the accused. This includes addressing concerns related to flight risk, potential harm to the public, or the gravity of the alleged offence.

The significance of this burden cannot be overstated. It acts as a fundamental safeguard, ensuring that an individual’s right to liberty is not unduly compromised without just cause. The Crown’s ability to meet this burden rests on its capacity to present a convincing case, grounded in legal principles and supported by evidence.

What triggers a shift to “reverse onus” in bail proceedings?

While the general rule places the burden of proof on the Crown, certain circumstances can trigger a dramatic shift known as “reverse onus.” This legal manoeuvre alters the traditional dynamic by placing the responsibility on the accused to demonstrate why they should be released pending trial. The trigger for reverse onus often occurs in cases involving grave offences, such as murder or sexual assault with a firearm. In these situations, the default position is that the accused should be detained until their trial, unless they can effectively convince the court that sufficient cause for their release exists.

The significance of reverse onus in cases involving serious offences lies in the heightened scrutiny applied to the accused. The legal system, in such instances, demands a robust and compelling argument from the accused, emphasising factors like community ties, lack of flight risk, and adherence to bail conditions.

What is Bill C-48? 

In recent times, the consideration of reverse onus in bail proceedings has undergone a notable evolution, with key legal instruments shaping the landscape. One such pivotal reform is Bill C-48, a legislative measure that has brought significant changes to how the legal system addresses bail in cases involving serious repeat violent offences. 

Bill C-48 extends the application of reverse onus to a range of offences that are deemed to carry heightened risks. These offences include, but are not limited to:

  • Drug trafficking, importing, or exporting: Recognizing the potential dangers associated with drug-related offences, Bill C-48 places the burden on the accused to justify their release in these cases.
  • Offences involving criminal organizations and terrorism: The bill acknowledges the gravity of offences tied to criminal organizations and terrorism, emphasising the need for a rigorous assessment before granting bail.
  • Violence against an intimate partner with a prior conviction: Bill C-48 takes a strong stance against repeat offences involving violence against an intimate partner. In such cases, the accused must present a compelling case for release.
  • Firearms and weapons-related offences: The expansion of reverse onus encompasses offences related to the trafficking, possession, or unauthorized import/export of firearms or weapons. This reflects a comprehensive approach to addressing potential threats posed by accused individuals.

How does Bill C-48 impact the balance between individual rights and public safety?

Bill C-48, a significant legislative initiative, has a profound impact on the delicate balance between individual rights and public safety in the context of bail proceedings. This bill introduces the concept of reverse onus in specific cases, requiring individuals accused of serious repeat violent offences, particularly those related to weapons and intimate partner violence, to demonstrate why they should be released pending trial. 

By identifying specific offences that trigger reverse onus, Bill C-48 reflects a societal commitment to addressing concerns related to potential risks posed by certain individuals during the pre-trial phase. This legislative approach aims to enhance public safety while navigating the fundamental principles of justice and individual rights.

If you or someone you know is grappling with the complexities of a legal situation, especially regarding bail, Shory Law is here to offer guidance and support. Take a proactive step toward understanding your rights and options by contacting us for a free consultation. Our team of criminal lawyers will ensure you receive personalized advice tailored to your circumstances. Reach out to us today at 403-216-1199!

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