Bail Frequently Asked Questions What is Bail? When the police arrest and decide to charge someone with a criminal offence, the police may release that person ( the accused ) directly from the police station (with or without conditions) or hold him/her in custody to appear in Court before a Judge. Once at Court, a lawyer acting for the accused will try to get the accused released from custody on bail. Bail refers to the terms and conditions of release which take effect at the time the accused is released into the community and remain in force until the criminal charges before the Court are fully concluded. How Much Money is Needed to Make Bail? It is a common misconception that bail money is required up front for an accused to be released from custody. That is not always the case. There are a number forms that bail can take. Not all of them involve money or a cash deposit. In fact, in most cases, cash (bail money) is not required. The different forms of bail are outlined below. The suitability of any form of release will depend on many factors including: The prior record of the accused; The seriousness of the charges alleged; Last Updated: July 2017 Page 1 of 5
Whether the accused has a history of compliance with Court Orders and attending Court; and, Whether the accused is currently out on bail or subject to other Court-ordered conditions. What are the Different Forms of Bail? An Undertaking is a type of bail that does not involve any money. It is a written promise to attend Court and to follow the conditions of release imposed by the Court. Failure to appear in Court at a future date, or follow the conditions imposed by the Court is a criminal offence. A Recognizance is another form of bail that requires an accused to follow conditions of release with the threat of criminal charges if those conditions are not complied with. In addition, a Recognizance involves the pledge of money. In some, but not all, cases a portion of the sum pledged may need to be deposited in cash with the Court before the accused is released from custody. If the conditions of the Recognizance are not complied with, the Crown may apply to the Court to estreat (order the accused pay) some or all of the sum pledged. A Recognizance with Surety (or sureties) allows for an accused, who would otherwise remain in pre-trial custody, to be released into the community under the close supervision of a reliable person (a surety) who will police the conduct of the accused and make sure the accused complies with the conditions of release and attends Court. The surety must be willing to notify the police immediately if the accused breaches or is about to breach a condition of release. To persuade the Court that the accused will comply, the surety takes on a financial risk by pledging a sum of money to the Court. The surety risks losing some (or all) of that Last Updated: July 2017 Page 2 of 5
sum if the accused does not comply with conditions of release. The surety does not deposit any money in advance with the Court but may be asked to justify by signing an Affidavit of Justification - that is a legal document to prove the surety owns assets worth the amount of money pledged. Either real property (e.g.: a home or land) or personal property (e.g.: vehicles, electronics, jewellery, furniture, etc.) can be used to justify. A copy of the Deed may be required for real property. The surety will be asked to show photo identification. Who Can be a Surety? Professional bail bonds services are illegal in Canada. The practice of acting as a surety for profit is also illegal. Sureties are typically family members, friends or employers of the accused - people with a close personal connection to the accused. The bail system in Canada relies on a close relationship between the accused and surety in order to hold the accused accountable. If the accused fails to appear in Court or breaks a condition of release, it is not an impersonal bondsman who stands to lose bail money, it is a close friend or relative of the accused. A good surety is someone whom the accused cares enough about not to put that surety at risk of losing any of the money pledged. A surety must have the ability to monitor the accused in the community and be in a position to effect control over the accused. A suitable surety should have no pending charges of his or her own before the Court and, ideally, no prior criminal record (although exceptions are sometimes made in the case of a very minor or very dated prior record). The alleged victim is not a suitable surety. Last Updated: July 2017 Page 3 of 5
When is a Bail Hearing Required? Bail can be negotiated with the Crown Attorney and presented to the Court as a consent release that is, where the terms and conditions of release are agreed upon by both the Crown and Defence. A bail hearing (also called a show cause hearing) is required when the Crown and Defence cannot agree on terms and conditions of release, typically where the Crown opposes release. At the bail hearing, the Judge will hear from both sides and decide whether to release the accused into the community and, if so, upon what terms and conditions or whether to remand the accused into custody until the charges are concluded. Does a Judge Have to Grant Bail? Every accused has the right not to be denied reasonable bail without just cause. However, bail may be denied on any one or more of the following grounds: 1. The Court is not satisfied the accused will attend Court; or 2. There is a substantial likelihood that, if released, the accused will reoffend in a manner that puts public safety at risk; or 3. Releasing the accused would undermine public confidence in the administration of justice. What if I Can t Afford a Lawyer? Duty Counsel provides free legal advice regarding bail. Duty Counsel will work with the accused and his/her support people to come up with a plan of release to satisfy the Court that the accused should be released. Where detention cannot be avoided Last Updated: July 2017 Page 4 of 5
or where the accused chooses to forego release, Duty Counsel will assist in resolving any charges that are admitted. Trial matters will be referred to full service counsel by way of application to Nova Scotia Legal Aid. Disclaimer: This site contains general legal information for residents of Nova Scotia, Canada. It is not intended to be used as legal advice for a specific legal problem. Last Updated: July 2017 Page 5 of 5