Scope of Bail

A judge or justice of the peace decides whether to release a person on bail or not. They may also impose conditions that a person must follow in order to ensure their safety and that they do not commit any further offences while awaiting trial. These conditions may include reporting requirements, electronic monitoring, participation in programs and treatment, no contact with the victim or co-defendant and more.

The Supreme Court of Canada (SCC) provides significant recent guidance on bail and relevant Charter considerations. It has ruled that for most alleged crimes the presumption is that accused persons should be released on bail unless detention can be shown to be necessary. The exception is where a risk of flight, public safety or the administration of justice would be compromised.

Getting a bail hearing is often the first step in avoiding jail while waiting for your case to be heard. It allows the defendant to remain at home while waiting for their day in court, and can often make it easier for them to continue working and earn an income while awaiting trial. It can also be a lot more comfortable for them, as they are not in an orange jumpsuit and have the chance to dress normally while in court.

If an accused person breaches their bail conditions they are usually detained and their case brought back to court where a judge or justice of the peace may decide to set fresh terms or revoke their bail altogether. A breach can lead to a new criminal charge for the offence and can make it much more difficult for that person to get bail in the future.

What is the Scope of Bail?

Bailing out of jail can help an accused person keep their job, maintain their health and provide a sense of stability for themselves and their family. However, the reality is that people who cannot afford to pay for bail or are unable to meet the required financial conditions of bail are still spending most of their time in pretrial detention. Those who are economically disadvantaged and/or have been charged with a non-violent felony have been found to be at a greater risk of being unable to afford bail, which has been linked to systemic racial bias.

In the United States, reforms approved in 2019 require that judges consider an accused person’s ability to pay bail before they set it at arraignment or a later date. They also clarify that a person’s ability to pay should be considered when imposing conditions for pretrial release, and they should not be denied a fair opportunity to demonstrate their ability to pay.

While the United States is ahead of Canada when it comes to bail, both countries have a lot of work to do to address the problems that are associated with their respective bail systems. A recent study has outlined the many ways in which cash bail is detrimental to a fair pretrial process, including its negative impacts on economic equality and systemic racial bias.