Mystery of bail in Canada | Norman Douglas

By Norman Douglas ·

Law360 Canada (April 19, 2024, 11:04 AM EDT) --
Norman Douglas
Norman Douglas
Case 1: Alcoholic steals liquor from local LCBO.

He’s charged with theft and released on an undertaking to appear in court and a condition that he not attend any LCBO stores.

He’s soon caught again stealing from the same LCBO.

He’s charged with theft but now also with breaching his undertaking.

He’s detained in jail and remanded for a bail hearing.

Because he has a criminal record for four other thefts, he remains in custody until his trial date, which will be six months down the road if he pleads not guilty.

Case 2: Meticulously planned heist of $22.5 million worth of gold from cargo bay at Air Canada.

Six people arrested — all get bail and are free pending their trial, which will likely be at least a year because of the complexity of the case.

Most Canadians do not understand the inner workings of our administration of justice.

If you were stopped on the street by a TV reporter, how many of the following questions would you be able to answer?

  • Do we “post” bail in Canada?
  • If we don't have the money, do we stay in jail?
  • A large percentage of people in jail are awaiting their trial — are they presumed innocent?
  • Most bail hearings are held by justices of the peace. Who ARE these folks? Are they lawyers?
  • Why are some people released by the police soon after arrest, and others detained in their holding cells for court?
  • How long do you stay in jail if you are arrested by the police?
  • When those people come to bail court, why are some released and others kept in jail?
  • If our courts are so backlogged, what is the average waiting list if you want to plead not guilty?
  • Do some people who have waited in jail a long time for their trial have their cases dropped or are they found not guilty? Are they compensated somehow?
  • Do some innocent people plead guilty just to avoid a long wait in jail?

There are a hundred other questions the reporter could ask, and if you are not a criminal lawyer, you likely would have walked away scratching your head by now.

My short answers to the above questions for the layperson are not meant to take the place of law schools. And many of them are covered in more detail in my recent book, You Be The Judge.

I am a believer — when drawing back the curtain, so folks can have a peek at a system I have spent 50 years figuring out — in keeping it short and simple.

Rarely is “cash bail” used in Canada. Bail bonds-people would soon be out of business in our country.

We use conditions, restrictions, monitoring and/or sureties (people who vouch for the accused — a form of “posting bail” — usually property).

Right up until the moment they are judged guilty after a trial or a guilty plea, every accused person is, in law, innocent.

This bedrock principle is known as the “presumption of innocence.”

Police have the authority to release people they have arrested, right at the scene of the crime or back at the police station that same day.

Those accused sign an undertaking, with or without conditions, to appear in court at a specific date in the not-too-distant future.

Police officers use their discretion to do this in the more minor criminal offences or when the accused has no prior offence and has roots in the community.

In more serious matters, accused people can be held overnight in a cell at the police station and brought to bail court (usually the next day).

These folks come before a justice of the peace, who must determine whether to release or detain them.

Needless to say, this is a vital stop on the journey inaccurately called the “wheels” of justice. This is not a bullet train.

Justices of the peace, selected by the government, are usually not legally trained before their appointments, though some are chosen from the legal fields.

They are chosen mainly on the basis of their service to the community.

The criminal code details three grounds upon which an accused person can be held in custody before trial.

The primary ground is that the accused is a risk of not attending court in the future if released. The secondary ground is that the accused is a danger to the public. The tertiary ground is that the accused must be detained to maintain public confidence in the judicial system.

Assuming the accused is held in custody on one or more of these grounds, then what? The next crucial stop on their not-so-sentimental journey (OK — that was for you, readers over 65) is whether to plead guilty or not guilty.

A plea of guilty, sometimes to a lesser charge as a result of a “plea bargain” (a whole new topic, perhaps for another column) means an early court date within days or weeks.

A plea of not guilty means a trial date must be arranged, so witnesses can be called by the prosecutor in an attempt to prove guilt beyond a reasonable doubt. Depending on where the accused lives, this could take six months to a year.

Thus, adding pressure on an accused person to get off the train at the plea-bargaining or guilty plea station.

And yes, some innocent people have been known to take the offer of “time served” on a guilty plea now, rather than wait in jail for a trial a long way down the track.  And the answer is a simple “no” to the question of compensation for a not guilty finding, short of malfeasance or negligence on the part of someone in the system.

So there you have a crash course on the bail system in Canada.

Obviously, it is not perfect.

So, in the spirit of You Be the Judge, how would YOU change it?

As in all difficult subjects, there are extremist views on both sides of the issue. Keep ALL accused people in jail — they are probably guilty otherwise the police wouldn’t have grounds to arrest them.

Release ALL people charged — and defund the police while we are at it.

I have a better idea.

Let’s all follow the Golden Rule — and we don't even need the train.

Norman Douglas is a retired criminal court judge with 27.5 years of experience on the bench. His book, You Be the Judge, was published in December.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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