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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.