Toronto Bail Lawyers

Section 515 of the Criminal Code sets out the factors the court considers at a bail hearing when deciding if someone should be released. These factors are called the “primary,” “secondary,” and “tertiary” grounds. The primary grounds refer to whether the accused person comes to court as required. Essentially, the number one concern when someone is released on bail relates to the fear they will abscond and run away, fleeing the country or otherwise disappearing in order to avoid prosecution. Although people rarely flee or disappear in practice, at a bail hearing the court will look at the accused’s roots in the community and whether the accused has strong ties in another country (e.g. property, family). The court will also look at these types of factors for the surety.

The secondary ground refers to public safety, and is usually the most important factor at a bail hearing. The question here is whether the accused’s release presents a significant risk to public safety. An accused person who is accused of a crime of violence (e.g. a domestic assault, or a robbery) or a firearms offence can expect this factor to be especially prominent at the hearing. One of the most important factors here is the accused’s criminal record, especially for crimes of violence and past breaches of bail conditions. Where an accused person is charged with something really serious or has a bad record, the surety becomes more and more important. In those cases, the accused must present a plan of release to the court, backed up by a strong surety, that shows that the safety risk has been mitigated.

The tertiary ground is relatively rarely invoked – but it refers to public confidence in the administration of justice. Sometimes, even if someone can establish that the risk to public safety is low, and that the accused is unlikely to abscond, the court may still find that public confidence in the administration of justice would be undermined if someone is granted bail. As one example, the tertiary ground may be invoked in a case involving a murder charge, where the Crown has what looks to be an overwhelming case against the accused even at the bail stage. There, the court may find that public confidence in the administration of justice would be undermined if the accused was released.

At the end of the day, a Justice of the Peace is empowered to impose any “reasonable conditions” on the accused that they believe are “desirable”. In practice, common conditions include:

• Non-communication orders with complainants or other witnesses
• Conditions requiring the accused to live at a specific address or with their surety
• Restrictions on addresses or geographic locations the accused is allowed to travel to
• Curfews
• Depositing a passport
• Remaining in the province of Ontario
• House arrest

Combined, these conditions can make an accused’s time on bail stressful and difficult. After living through Covid, we all understand now how difficult it is to be stuck at home for long periods of time. House arrest can make it difficult or impossible to lead a normal life, and can leave people feeling isolated, anxious, and depressed. Similarly, restrictions on areas that accused people are allowed to visit (e.g. public parks, schools, or swimming pools) can stop people from doing simple things like picking up their children from school, or walking the dog in a neighbourhood park.