Judicial Interim Release
Where a person is in custody and the police decide not to release them, the accused must be brought before a judge to determine if they should be released on bail.
Bail is a form of contract between the crown and the surety or accused, where the crown releases the accused in exchange for the guarantee that the accused will abide by the terms of release.
Section 11(e) of the Charter of Rights and Freedoms states that "Any person charged with an offence has the right ... not to be denied reasonable bail without just cause". This means that the accused cannot be denied bail without reason and only where necessary.
Under s. 515(1), a judge or justice must release a person held in custody on an undertaking without conditions unless the Crown can show cause to do otherwise.
Where the court sees fit, s. 526 permits the judge to "give directions for expediting any proceedings in respect of the accused".
When a person is released on a recognizance under s. 515, the accused and his surety will continue to be bound by the terms of the recognizance after each appearance.
A person who is in police custody or in the custody of a correctional facility can be ordered to attend court and ordered to be remanded into custody under s. 527.
- Ewaschuk, Criminal Practice and Procedure in Canada at 6:0010 where the terms are violated the surety will incur a debt with the crown.
Section 11(e) of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
R v Hall,  SCJ No. 65 2002 SCC 64 (CanLII)
R v Villota, 2002 CanLII 49650 (ONSC)
R v Morales, 1992 CanLII 53 (SCC),  3 SCR 711 per Lamer CJC
R v Hall, 2000 CanLII 16867 (ON CA)
s. 763, 764(1)
- see Procuring the Attendance of a Prisoner for details
Prior to 1972 the bail system was primarily based on a cash bail. It was also "highly discretionary" with a presumption of detention unless bail was applied for. The only forms of release was the release (a) by recognizance with surety or sureties (b) release on cash deposit, or (c) release on entering a recognizance.
The modern regime of bail arose from the 1972 Bail Reform Act, S.C. 1970-71-72, c. 37, which included the addition of s. 457 (2) (now s. 515 (2)).
The Bail Reform Act was designed to "do away with the requirement ... to deposit money unless [the accused was] not normally resident in or near the jurisdiction in which they were in custody". It created a system where "[b]ail must be granted unless pre-trial detention is justified by the prosecution".
In 1975, the Criminal Law Amendment Act, S.C. 1974-75-76, c. 93, added s. 515(2)(c.1) (now s. 515(2)(d)), which allows an accused to be released with consent by entering a recognizance without a surety by depositing money or property as security.
R v Folkes, 2007 ABQB 624 (CanLII), at para 15
R v Rowan, 2011 ONSC 7362 (CanLII) at para 9 ("One of the main purposes of the Bail Reform Act was to get away from the common law’s preoccupation with cash deposit") R v Antic, 2017 SCC 27 (CanLII) at para 26
Antic at para 23
Antic at para 24
R v Folkes, at para 15
See Gary Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) [Trotter] at 247
R v Pearson,  3 SCR 620, 1998 CanLII 776 (SCC), per Lamer CJ
Method of Release
Section 515 permits a justice to release an accused who is brought to him:
Order of release
515. (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.
R.S., 1985, c. C-46, s. 515; (...) 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14.
An accused may be released by any one of these release mechanisms:
- appearance notice
- promise to appear
Part XVI of the Code on bail sets out a structure of bail known as the "ladder principle". This principle dictates that "release is favoured at the earliest reasonable opportunity" and "on the least onerous grounds" in light of the "risk of flight and public protection". The analysis should consider in order. First, whether to release on undertaking with conditions under s. 515(1). If this is not sufficient to "secure the aims of Part XVI" then the Crown "may seek to show cause for other, non-monetary conditions" under s. 515(2)(a). Third, as a last resort, the release should consider a "requirement for cash by deposit or recognizance" under s. 515(3). A cash condition can come in different forms under s. 515(2)(b) through (e), which should be viewed in favour of the least onerous conditions.
R v O’Connor, 2015 ONSC 1256 (CanLII) at para 46
O'Connor at para 46
O'Connor at para 46
O'Connor at para 46
Horvat (1972) 9 C.C.C. (2d) 1 (B.C.S.C.)
Duration of Release Mechanism
Period for which appearance notice, etc., continues in force
523. (1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, promise to appear, summons, undertaking or recognizance was issued, given or entered into,
- (a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is completed; or
- (b) in any other case,
- (i) until his trial is completed, and
- (ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.
Where new information charging same offence
(1.1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, a new information, charging the same offence or an included offence, is received, section 507 or 508, as the case may be, does not apply in respect of the new information and the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the new information.
When direct indictment is preferred charging same offence
(1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the indictment.
Provisions applicable to proceedings under subsection (2)
(3) The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in section 469.
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.
Irregularities or Variance in Release Mechanism
Irregularity or variance not to affect validity
546. The validity of any proceeding at or subsequent to a preliminary inquiry is not affected by
- (a) any irregularity or defect in the substance or form of the summons or warrant;
- (b) any variance between the charge set out in the summons or warrant and the charge set out in the information; or
- (c) any variance between the charge set out in the summons, warrant or information and the evidence adduced by the prosecution at the inquiry.
R.S., c. C-34, s. 473.
Release on Section 469 Offences
Interim release by judge only
522 (1) Where an accused is charged with an offence listed in section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial.
(2) Where an accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).
Order re no communication
(2.1) A judge referred to in subsection (2) who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order except in accordance with such conditions specified in the order as the judge considers necessary.
Release of accused
(3) If the judge does not order that the accused be detained in custody under subsection (2), the judge may order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsections 515(4), (4.1) and (4.2) as the judge considers desirable.
Order not reviewable except under section 680
(4) An order made under this section is not subject to review, except as provided in section 680.
Application of sections 517, 518 and 519
(5) The provisions of sections 517, 518 except subsection (2) thereof, and 519 apply with such modifications as the circumstances require in respect of an application for an order under subsection (2).
(6) Where an accused is charged with an offence mentioned in section 469 and with any other offence, a judge acting under this section may apply the provisions of this Part respecting judicial interim release to that other offence.
R.S., 1985, c. C-46, s. 522; R.S., 1985, c. 27 (1st Supp.), s. 88; 1991, c. 40, s. 32; 1994, c. 44, s. 48; 1999, c. 25, s. 10(Preamble).
The onus is upon the accused to show cause for release on a 469 offence.
Detention by Provincial Court Judge
A person charged with an offence under s. 469 will be required to attend before a justice of the peace or provincial court judge under s. 503, however s. 515(11) requires them to detain the accused.
Detention in custody for offence listed in section 469
(11) Where an accused who is charged with an offence mentioned in section 469 is taken before a justice, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.
- 469 offences consist of treason, alarming her majesty, intimidating Parliament or legislature, inciting mutiny, sedition, piracy, piratical acts, and murder
- see s.522(2)
- Release by Police
- Detention With Charges Outstanding
- Show Cause Hearings
- Grounds of Denying Bail
- Sureties and Deposits
- Terms of Release
- Breach of Release Conditions
- Bail Revocation and Termination
- Bail Pending Appeal
- Bail Review
- Bail for Young Persons