A bail hearing is the first major court proceeding after an arrest. It is where a justice of the peace decides whether you will be released while your case proceeds, and on what conditions. The outcome affects everything that follows, from your ability to work and care for your family to the leverage you have in resolving the charge. Having a lawyer at this stage is not optional if you want the best result.
The Right to a Bail Hearing Within 24 Hours
Under section 503 of the Criminal Code, a person who has been arrested and not released by police must be brought before a justice of the peace within 24 hours, or as soon as possible if no justice is available. In practice, bail hearings in Toronto and the GTA often happen the next morning after an overnight arrest.
If you have been arrested on a Friday night, you may wait in custody until Monday. This is one of the many reasons why retaining a lawyer immediately after arrest matters. See my guide on what to do if you have just been arrested for the steps to take while you are still in custody. I can appear at bail hearings on short notice and work to get you out as quickly as the system permits.
How a Bail Hearing Works
A bail hearing, formally called a show cause hearing, is a relatively informal proceeding compared to a trial. The Crown goes first and presents evidence about the alleged offence, your criminal record if any, any prior failures to appear in court, and any other factors relevant to the grounds for detention. This evidence is typically given by a police officer reading from notes rather than through formal testimony.
The defence then has the opportunity to respond, call a surety, and make submissions. A surety is a person, typically a family member or close friend, who agrees to be responsible for ensuring you comply with your bail conditions and who may pledge money as security. The surety will be questioned about their knowledge of the charges, their relationship with you, and their ability to supervise you.
The justice of the peace then decides whether to release you, on what conditions, and whether any surety is required.
The Three Grounds for Detention
The Crown can seek detention on three grounds. The primary ground is that detention is necessary to ensure you attend court. This is the most common argument for accused persons with prior failures to appear or no fixed address.
The secondary ground is that detention is necessary for the protection or safety of the public, including any victim or witness. This ground applies most often in domestic violence and assault cases, or where the alleged offence involved violence or weapons.
The tertiary ground is that detention is necessary to maintain confidence in the administration of justice. This is typically reserved for the most serious charges, such as murder, or cases where the alleged conduct is particularly egregious.
Reversed Onus: When You Have to Prove You Should Be Released
In most bail hearings, the Crown bears the onus of showing cause why you should be detained. But for certain categories of offence, that onus is reversed: you must show cause why your detention is not justified.
Reversed onus situations include being charged with an offence while already on bail, certain serious drug offences, allegations involving firearms, and charges under the Criminal Code that carry specific reverse onus provisions. When the onus is reversed, the hearing becomes significantly harder, and the quality of your surety and your plan of release become critical.
Bail Conditions
If you are released, the justice will impose conditions. Common conditions include keeping the peace and being of good behaviour, appearing in court as required, reporting to a bail supervisor, staying away from specific persons or locations, surrendering your passport, abstaining from alcohol or drugs, having a curfew, and having a surety.
Conditions in domestic cases almost always include a no-contact order and a prohibition on attending the family home. In cases involving allegations of fraud or breach of trust, conditions may restrict access to finances or prohibit certain business activities.
Breaching any bail condition is a separate criminal offence under section 145 of the Criminal Code. A bail breach can result in revocation of your release and additional charges that complicate your original matter significantly.
What Happens If You Are Detained
If the justice orders you detained, you can apply to the Superior Court of Justice for a bail review under section 520 of the Criminal Code. A bail review is not an appeal in the traditional sense. You must show that the justice of the peace made an error in law or that there has been a material change in circumstances since the original hearing. In some cases, prolonged pre-trial detention also strengthens arguments for Crown withdrawal or a stay of proceedings down the road.
A bail review requires careful preparation, and the fresh evidence or new argument you present must be compelling. I have appeared on bail reviews across Ontario and understand what it takes to succeed on them.
Getting a Lawyer Before Your Bail Hearing
The single most important thing you can do before a bail hearing is speak to a lawyer. I am available 24/7 for people who have just been arrested, and I can appear at bail hearings in Toronto, Brampton, Newmarket, Oshawa, and across the GTA. The earlier I am involved, the more time I have to prepare your surety, understand the allegations, and build a release plan that addresses the Crown's concerns.
Call me at 647-547-6734 the moment you are able to after an arrest. Consultations are free and confidential.