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Bail in Canada: Understanding The Bail System in Alberta

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Navigating the bail system in Canada can be complex, particularly if you or a loved one is facing criminal charges in Alberta, British Columbia, or Saskatchewan. Bail plays a crucial role in the Canadian legal process, offering a way for accused individuals to be released from custody while they await trial. Understanding how the bail system works in Alberta—and across Canada—is vital for anyone involved in a criminal case. This blog post will provide a guide to help you understand the key aspects of bail and what you can expect if you’re facing a bail hearing.

What is Bail?

Bail is the legal process by which an accused person can be released from jail while awaiting trial on criminal charges or other court proceedings. When a person is arrested in Alberta, sometimes they are held in custody until they can appear before a judge or justice of the peace for a bail hearing. Bail allows individuals to remain out of jail under certain conditions.

In Alberta, as across Canada, the Canadian Charter of Rights and Freedoms guarantees the right to reasonable bail, and the principle of presumption of innocence is paramount. An individual cannot be kept in custody just because they’ve been charged with a crime; they are presumed innocent until proven guilty.

How Does Bail Work in Alberta?

When an individual is arrested in Alberta, they are typically taken to a local police station or detention facility and held until a bail hearing can be scheduled. Bail hearings usually take place within 24 hours of the arrest, though this can vary depending on the location and circumstances.

At the bail hearing, the judge or justice of the peace will decide whether the accused should be granted release and under what conditions. The hearing is not about determining guilt or innocence—it’s simply about deciding if the person should be allowed to be released until their trial.

There are a few possible outcomes at a bail hearing:

  • Bail is granted: The accused is released from custody, often with specific conditions that must be met.
  • Bail is denied: The accused remains in custody pending trial.
  • Bail is postponed: If there’s not enough time or information to make a decision, the hearing can be delayed, and the accused remains in custody until the decision is made.

Factors Affecting Bail Decisions in Alberta

When deciding whether to grant or deny bail, the judge will consider several key factors, including:

  • Seriousness of the offense: More serious crimes, such as violent offenses (e.g., assault, robbery) or drug trafficking, are less likely to result in bail being granted.
  • Criminal history: An accused person’s prior criminal record will play a significant role. If they have been convicted of similar offenses in the past or have violated bail conditions before, they may be seen as a higher risk for re-offending or failing to appear in court.
  • Risk of flight: The judge will consider whether the accused is likely to flee the jurisdiction before their trial. Factors such as ties to the community, employment, and family relationships can help establish whether the accused is likely to return to court.
  • Risk to public safety: If the judge believes the accused poses a danger to others, they may deny bail or impose strict conditions (e.g., house arrest, no-contact orders).
  • Strength of the evidence: The judge will also consider whether the evidence against the accused is strong, as individuals facing serious charges and strong evidence are less likely to be granted bail.

Types of Bail

If bail is granted in Alberta, the accused will be subject to a certain form of release with or without conditions. The forms of release are:

  • No cash bail: The accused is released on bail without having to deposit cash or promise to pay cash.
  • Cash Bail: The accused or their family may be required to deposit a certain amount of money upfront to secure release. If the accused fails to attend court or follow his bail conditions, the bail money can be forfeited.
  • Cash Bail (Promise to Pay): The accused promises to pay a certain amount of money to secure their release but may have to pay this money unless they fail to attend court, breach a condition of release, or pick up new criminal charges. If the accused is only released on a promise to pay, the accused does not need to pay anything to secure their release.
  • Surety (Cash): This is a person who agrees to supervise the accused on release (most times in addition to a bail supervisor) and is required to pay a sum of money upfront to secure the release of the accused. If the accused is released on a surety release, and they fail to appear in court, violate their bail conditions, pick up new criminal charges, the surety may forfeit the cash.
  • Surety (Promise to Pay): This is a person who agrees to supervise the accused on release and promises to pay a certain sum of money if the accused fails to appear in court, breaches their conditions of release, or picks up new charges. The Surety does not need to pay the sum of money first to secure the accused’s release.

Bail Conditions

If bail is granted, the accused may be subject to certain bail conditions to ensure they do not pose a risk to society or individual, to ensure they attend court hearings, and to ensure their release does not undermine the administration of justice. Some common conditions include:

  • House Arrest: In more serious cases, the accused may be placed under house arrest, meaning they must remain at their residence and may be subject to electronic monitoring.
  • Curfew: Curfews are often imposed when the allegations arise at night.
  • Travel Restrictions: The accused may be required to surrender their passport and not leave Alberta or Canada while their case is pending.
  • Other Conditions: Depending on the case, other conditions may include regular check-ins with police or a probation officer, drug and alcohol testing, or restrictions on contact with alleged victims, witnesses, or co-accused.

Sometimes an accused is released without any conditions. Generally, the more serious the offense, the more likely it is the accused will be released with some conditions.

Can Bail Be Denied?

Yes, bail can be denied in Alberta. There are three grounds that bail can be denied in Alberta and across Canada:

  • If the Court believes keeping the person in custody is necessary to ensure they attend future court appearances (individuals who have criminal records for failing to appear in court or failure to follow court orders such as bail conditions are at an increased risk of being denied on this ground).
  • If the Court believes keeping the person in custody is necessary for the protection of the public or the safety of the public (Individuals who have repeated allegations of a certain type of crime such as theft, fraud, or domestic violence are at an increased risk of being denied on this ground).
  • If the Court believes keeping the person is necessary to maintain confidence in the administration of justice (individuals charged with serious crimes such as murder, sexual assault, massive frauds, and aggravated assault are at an increased risk of being denied on this ground).

If a Court decides an individual should not be released on one or more of these grounds, the individual will remain in custody until trial or until a subsequent bail hearing is requested (and bail is granted).

Again, bail conditions and the form of release can be used to overcome any of the three grounds of detention. This is why it is important to contact a bail hearing lawyer in Alberta to develop a robust bail plan to ensure you or your loved ones have the best chance at release.

Bail Reviews in Alberta

The accused has the right to request a bail review in a higher court (either the Court of King’s Bench of Alberta or the Court of Appeal depending on where the bail hearing takes place) in two circumstances. These two circumstances are:

  • If the accused was denied bail in the lower court; or
  • If the accused wants to vary conditions of a granted bail order from a lower court and the prosecution does not consent to varying the conditions.

The accused will be granted a bail review if they establish one of the following circumstances:

  1. The judge in the lower court erred in law when they denied their bail;
  2. The judge in the lower court made a clearly inappropriate decision; or
  3. There is a material change in circumstances since the judge denied bail.

If the accused or their lawyer successfully establishes one of these three circumstances, the accused makes further arguments as to why they should be released or have their bail order varied. If successful, they are released or have their bail order varied.

The Importance of Legal Representation in Bail Hearings

While it’s possible to represent yourself at a bail hearing, it is highly advisable to seek a bail lawyer, particularly if you are facing serious charges or have a lengthy criminal record. A criminal defense lawyer will advocate on your behalf, help develop a bail plan for your release, and help you navigate the bail process.

A bail lawyer will ensure that your rights are protected and that the best possible conditions are set, potentially securing your release from custody. In some cases, a top criminal lawyer can help negotiate more favorable bail terms, which can significantly affect the outcome of your case.

Davidson Gregory is Here to Help with Your Bail

The bail system in Alberta—and Canada as a whole—plays a crucial role in maintaining the balance between ensuring that individuals are not unjustly detained and safeguarding public safety. Whether you are facing a criminal charge or are helping someone through the process, understanding the factors that influence bail decisions is incredibly important.

If you or someone you know has been arrested and is facing a bail hearing, having the guidance of an experienced criminal defense lawyer like the criminal lawyers at Davidson Gregory is invaluable. A bail lawyer can help you understand your rights, assess the potential risks and benefits of bail, develop a bail plan, and ensure that the court hears your side of the story.

At Davidson Gregory we have extensive experience in representing clients at bail hearings across Alberta (including Fort McMurray, Edmonton, Calgary, Grande Prairie, Red Deer, St. Albert, and southern Alberta), British Columbia, and Saskatchewan.

If you need assistance, contact the team of bail hearing lawyers at Davidson Gregory or call us at 780-482-5496. We are here to help you navigate the complexities of the bail process and work toward the best possible outcome for your case.

January 21, 2025
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SafeRoads Impaired Driving Hearing in Alberta

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What is a SafeRoads Hearing in Alberta?

In Alberta, the SafeRoads Alberta program has transformed how impaired driving (commonly referred to as drunk driving, DWI, DUI, and drinking and driving) related offenses are handled. Introduced in December 2020, the program shifted the focus from the traditional criminal court system to an administrative process. A SafeRoads hearing is central to this system, offering individuals an opportunity to challenge Immediate Roadside Sanctions (IRS) (such as license suspensions) issued under the program.

What is a SafeRoads Hearing?

A SafeRoads hearing is an administrative review process that allows drivers to contest Immediate Roadside Sanctions (IRS) such as license suspensions, vehicle seizures, and fines. It is not a criminal trial; rather, it is a way to determine whether the penalty was issued correctly under Alberta law.

These hearings are overseen by adjudicators, not judges, and are conducted online or via telephone or by written submissions. This streamlined approach ensures quicker resolutions, but it also raises questions about due process and access to justice for those accused.

When is a SafeRoads Hearing Needed?

You may request a SafeRoads hearing if you’ve been issued an Immediate Roadside Sanction (IRS) for:

  • Failing a roadside breathalyzer test (Blood Alcohol Concentration [BAC] over 0.08).
  • Refusing to provide a breath, blood, or drug sample.
  • Driving under the influence of alcohol or drugs (based on physical signs or testing).

For a fulsome overview of the different types Immediate Roadside Sanctions (IRS) that can be issued, please click here.

How Does the Process Work?

If you’ve received an Immediate Roadside Sanction (IRS), here’s how the process unfolds:

  1. Notice of Penalty (NAP): After being stopped by police, you’ll be issued an immediate penalty, where your license is immediately suspended, and your vehicle is impounded.
  2. Apply for a Review: You have 7 days from receiving the Notice of Administrative Penalty (NAP) to apply for a SafeRoads hearing through the online system.
  3. Prepare Your Case: Gather evidence, including documents or witness statements, to support your argument that the penalty was issued improperly.
  4. The Hearing: During the hearing, an adjudicator will review the evidence. The hearing is conducted remotely (either virtually or by written submissions) and the adjudicator will not provide you with a decision at the hearing. The police officer or officers involved in the impaired driving investigation do not testify. Instead, their evidence is in written form (their notes or reports) and could be accompanied by video recordings, audio recordings, or pictures.
  5. Outcome: The adjudicator may uphold, modify, or cancel the Notice of Administrative Penalty (NAP) and the Immediate Roadside Sanctions (IRS) that come with it by providing written reasons to you or your impaired driving lawyer within 30 days of the hearing.

Impaired Driving Lawyers at Davidson Gregory Can Help

If you’ve been issued Immediate Roadside Sanctions (IRS), contacting an experienced Impaired driving lawyer such as the DUI lawyers at Davidson Gregory is crucial. A DUI lawyer can help you:

  • Understand the penalties and their implications.
  • Gather and present evidence effectively.
  • Navigate the SafeRoads hearing process within the tight deadlines.

For tips on how to best help your drinking and driving lawyer represent you, please click here.

Davidson Gregory Understands Impaired Driving and Fights for Your License Back

SafeRoads hearings are an essential part of Alberta’s approach to tackling impaired driving. While they offer a faster and more efficient process, they also come with challenges that require careful navigation. If you’re facing a SafeRoads impaired driving penalty, contact our experienced impaired driving lawyers to represent you. We’ll ensure your rights are protected and help you achieve the best possible outcome.

Our experienced impaired driving lawyers are here to guide you through the process and have represented people from all across Alberta, including Fort McMurray, Edmonton, Calgary, Grande Prairie, Red Deer, St. Albert, and southern Alberta. Contact us today to fight for your license.

January 16, 2025
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Weapon Possession - Defined

Weapon Definition in Canada and Alberta: What You Need to Know

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In Alberta, as in the rest of Canada, the legal definition of a weapon, under the Criminal Code of Canada, is broad and can encompass more than just firearms, knives, swords, or brass knuckles. This broad definition often leads to confusion when people are charged with weapons offenses such as possession of a weapon, possession of a concealed weapon, or assault with a weapon. The confusion arises when the alleged weapon is an everyday object, like a vehicle, rather than a traditionally recognized weapon, such as a gun, switchblade knife, or brass knuckles.

Here’s a closer look at what constitutes a weapon under Canadian law, and why it matters.

Legal Definition of a Weapon in Canada

Under Section 2 of the Criminal Code of Canada, a “weapon” is defined as:

Any thing used, designed to be used or intended for use

  • (a) in causing death or injury to any person, or
  • (b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88 (possession of a weapon for a purpose dangerous to the public), 267 (assault with a weapon), and 272 (sexual assault with a weapon), any thing used, designed to be used or intended for use in binding or tying up a person against their will.

This includes a wide variety of items, ranging from conventional weapons like guns and knives to everyday objects that can be used as weapons in specific circumstances, such as a baseball bat or even a vehicle.

What Does “intended for use” Mean?

A critical part of the legal definition is the phrase “intended for use.” This means that an item can still be considered a weapon even if it’s not actually used to cause injury or death to anyone, as long as there is evidence that the object was intended to threaten or intimidate another person. For example, if someone is caught carrying a baseball bat to a fight with another person, that bat could be classified as a weapon, even if it wasn’t swung or used in the confrontation. Of course, it may be difficult to prove what the individual’s intention was with the baseball bat based on the circumstances.

Experienced weapon lawyers, such as the lawyers at Davidson Gregory, can help you navigate the complexities of weapons charges and how to protect your rights before or after you have been charged with a weapons offence.

Types of Weapons

The definition of a weapon can be broken down into several categories:

  1. Firearms:
    a) Firearms are one of the most commonly recognized types of weapons. Under Canadian law, firearms include both restricted and non-restricted categories, as well as prohibited firearms.
    b) A firearm is defined under section 2 of the Criminal Code of Canada and means:“A barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.”c) Firearms are also regulated under the Firearms Act and must be licensed and registered (with exceptions for certain non-restricted firearms).
    d) Under Canadian law, it is illegal to possess a firearm without a valid license, and using a firearm to commit a crime is a serious offense with severe penalties.
  2. Bladed Weapons:
    a) Knives, swords, and other sharp objects that can be used to cause injury or death can be classified as weapons.
    b) Even everyday items like kitchen knives or scissors can be considered weapons if they are used to threaten or harm someone.
  3. Blunt Objects:
    a) Objects such as baseball bats, pipes, or even heavy tools can be considered weapons if they are used to assault or threaten someone.
  4. Imitation Weapons:
    a) An imitation weapon is an object that closely resembles a firearm or another weapon and is intended to be used or used to threaten or intimate another person.
    b) For example, a realistic-looking toy gun used in an armed robbery can be considered a weapon under Canadian law.
  5. Explosives and Chemical Weapons:
    a) Items such as bombs, grenades, or even substances like pepper spray may be treated as weapons under Canadian law.
  6. Other Objects:
    a) In addition to traditional weapons, almost anything can be considered a weapon if it is used to inflict harm or threaten another person. This could include things like vehicles, clubs, bricks, or even personal items

Possession of a Weapon

It is also important to understand that simply possessing a weapon can lead to criminal charges, but the Crown still must prove beyond a reasonable doubt that the object you possessed is a weapon. For example, an individual caught with what they believe to be a gun, may not actually possess a gun and therefore not possess a weapon. Remember the definition of firearm in the Criminal Code automatically includes firearms as weapons (the definition of “firearms” automatically makes them a weapon since they are designed to cause serious bodily injury or death to a person).

Although it may seem obvious to the person that they were carrying a firearm, the Crown must prove beyond a reasonable doubt the object they possessed is a firearm because the object can discharge a shot, projectile, or bullet and that this shot, bullet, or projectile can cause serious bodily harm or death (Remember, the definition of a firearm and what is required for an object to be classified as a firearm).

As you can see, proving an object is a weapon in criminal court is a complex issue, even when it seems obvious the object is a weapon such as a firearm. This is why it is important to retain an experienced weapons defense lawyer like the lawyers at Davidson Gregory to navigate the complexities of and fight weapons offences.

What If I’m Charged with Possessing a Weapon?

If you are charged with possession of a weapon or using a weapon to commit a crime, it’s crucial to seek legal counsel as soon as possible. A conviction can result in serious consequences, including imprisonment, fines, or a permanent criminal record. A weapons offense conviction can also result in serious consequences on your ability to own and possess firearms. The experienced weapon and firearm defense lawyers at Davidson Gregory will help you understand your rights and build a defense strategy tailored to your case.

The definition of a weapon in Alberta and Canada is broad and covers many items that you may not immediately think of as a weapon. Whether it’s a firearm, a knife, or something as simple as a rock, the law can classify many objects as weapons, depending on how they are used, designed to be used, or intended to be used.

By staying informed about the definition of a weapon and how it can affect criminal charges, you can better protect your legal rights and ensure that you’re prepared for whatever situation arises. At our law firm, we are committed to providing expert criminal defense services to clients across Alberta (including Fort McMurray, Edmonton, Calgary, Grande Prairie, Red Deer, St. Albert, and southern Alberta), British Columbia, and Saskatchewan.

If you’re facing charges related to weapons or need legal advice, don’t hesitate to contact the criminal lawyers at Davidson Gregory to get started on your case today.

 

January 7, 2025
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