What Will Happen if I Can’t Afford Bail in Ontario?

The bail process in Ontario is probably not the same as you’ve seen in the movies. It’s even possible to be released on a type of bail without as much as a court appearance.

In fact, in Canada, it is not even called “bail” by the judicial system. That is a term used in the U.S.

Bail is known as judicial interim release in Canada but let’s stick with “bail” for now. The principle is the same: a surety guarantees that a person charged with a crime will abide by the conditions of release and not flee from the justice system.

But what happens if you can’t afford bail?

Do you have to stay in jail or are there other options for release?

Let’s start by looking at what happens at bail hearings and then consider your options if you are arrested and concerned about being able to afford bail.

After a person is arrested and charged with a crime in Ontario, he or she is taken into custody and kept in jail until their first appearance in court — the bail hearing.

A bail hearing is sometimes referred to as a “show cause” hearing because the Crown Prosecution may need to show justifiable reasons why an accused should be kept in custody.

The hearing must be scheduled within 24 hours of being arrested or, if a judge is not available, as soon as possible thereafter.

The purpose of the bail hearing is for a judge to determine whether the defendant will be detained or released while their case proceeds through the criminal justice system. Bail hearings may take a few hours or even days in complex cases with witnesses called.

At the beginning of the hearing, the Crown Prosecution presents its allegations, reading them to the court from a document prepared by the police. The police officer who conducted the investigation is usually present as a witness.

The defendant’s criminal defence lawyer can then attempt to convince the court that the defendant will abide by the bail conditions imposed — either with a surety or on their “own recognizance”.

It’s important to understand the terms used in bail hearings so let’s look at a couple of definitions:

Note that if a defendant is unsuccessful with applying for bail, he or she will either have to remain in jail until the trial or enter a complex bail review process.

If someone wants to act as a surety for a defendant in a Canadian court during a bail hearing, he or she must meet these eligibility criteria:

• Over 21 years of age
• No criminal record
• Attends the bail hearing punctually
• Is in a position to oversee the defendant, as required by the court
• Has money in equity or savings that can be pledged to the court (as security of promise)
• Can understand and implement the conditions outlined by the court

Police bail is where the police release an arrested person at the scene of the crime or from a police station (usually on the same day as the arrest).

In such cases, the police will provide a piece of paper with a court date and a date when the accused will have to attend a police station to provide fingerprints and photographs.

There are two different types of release papers that the police may provide in this situation:

If you receive a promise to appear, this could take the form of an undertaking, which is a promise to follow certain conditions, such as notifying the investigating officer of an address change, having no contact with certain individuals, or avoiding alcohol.

If an individual is arrested and cannot or will not satisfy the release conditions set by the police officer(s), he or she will be taken to court for a bail hearing. To do so, the police must have reasonable grounds to believe that one or more of the following applies:

• The individual won’t attend court
• The individual’s identity needs to be confirmed
• Evidence must be secured
• A continuation or repetition of the offence may occur if released
• The safety or security of a victim or witness is at risk

Generally speaking, the problem of “affording” bail in Ontario or, indeed, Canada as a whole, rarely exists. Most people think of the U.S. system but the bail system here works differently.

As you have seen, if you are not released by the police on an appearance notice or promise to appear, the emphasis is usually on sureties and supervising a defendant rather than paying money.

Money may be pledged by the surety or even by the accused person but it is usually in the form of a bond (i.e., a promise to pay money if the conditions are broken) rather than cash paid upfront.

The main exception to the rule is if you live more than 200 km from where you’re in custody or you’re not normally a resident of Ontario. In such cases, the police or the court may request a returnable deposit of $500 in cash or valuables before release.

If you have been arrested and charged and a cash deposit is requested before your release, you should contact a criminal defence lawyer if you have not already done so.

Your lawyer can advise you of your options regarding bail, help you arrange a surety, and prepare you for your bail hearing if required.

Your lawyer can arrange a cash deposit to be paid to the court on your behalf if you are unable to use a credit card or pay in cash at the office of the justice of the peace. Alternatively, your lawyer can ask your surety or a friend or family member to deposit the funds and then you will be released.

If you have been arrested and charged with any criminal offence in Ontario, contact an experienced criminal lawyer at Affordable Defence for a free case evaluation.