An arrest is one of the most frightening experiences a person can face. Suddenly, you are in police custody, separated from your family, your job, and your daily life. Your immediate priority is getting out. This makes the bail hearing (also known as a Judicial Interim Release hearing) one of the most critical early steps in the criminal justice process.
Navigating this process without experienced legal representation can be detrimental to your freedom. If you or a loved one is in custody, securing a skilled criminal defense lawyer is essential. At White and Jeet Law, we want you to understand how the process works in Alberta, the costs involved, and how the Criminal Code of Canada in part dictates whether you walk free or remain behind bars pending your trial.
The Process of a Bail Hearing in Alberta
Under Section 503 of the Criminal Code of Canada, a person who is arrested must be brought before a Justice of the Peace or a Provincial Court Judge within 24 hours of their arrest or, if a justice is not available within a period of 24 hours, as soon as possible. At a first appearance, the Crown Prosecutor will state on the record whether they consent to your release or if they are “showing cause” as to why you should be detained.
In most cases, the burden of proof is on the Crown prosecutor to prove why you should stay in jail. However, under Section 515 of the Criminal Code, certain serious offences or circumstances (like breaching a previous bail condition) trigger a “reverse onus.” In a reverse onus situation, the burden shifts to you and your defence lawyer to prove why you should be released.
The Three Grounds for Denying Bail
When a judge or justice decides whether to grant bail, they must evaluate the Crown prosecutor’s argument based on three specific grounds outlined in the Criminal Code:
- The Primary Ground (Flight Risk): Will you show up for court? The court will look at your ties to the community and past record of attending court.
- The Secondary Ground (Public Protection): Is there a substantial likelihood that releasing you will endanger the public or result in you committing another criminal offence?
- The Tertiary Ground (Confidence in the Justice System): If the charges are particularly heinous, releasing the accused might cause the public to lose faith in the justice system. The court will consider the apparent strength of the Crown prosecutor’s case, the objective gravity or severity of the offence in comparison with other offences in the Criminal Code, the circumstances surrounding the commission of the offence as well as whether the accused is liable for a potentially lengthy term of imprisonment.
The Ladder Principle
Alberta bail hearings are heavily influenced by common law, specifically the landmark Supreme Court of Canada decision in R. v. Antic (2017). This case solidified the “ladder principle” which dictates that a judge must start by considering the least restrictive form of release—an undertaking without conditions. If that is not sufficient, they move one rung up the ladder which is a release order with non-financial conditions.
The court can impose more restrictive conditions, such as a promise to pay, a cash bail or requiring a surety, if the Crown prosecutor proves that lesser forms of release are inadequate. Furthermore, the Supreme Court ruled in R. v. Zora (2020) that bail conditions must be strictly necessary, reasonable, and tailored to the individual.
Costs and Types of Release
The “cost” of bail depends entirely on where you land on the ladder:
No-Cash Bail: The vast majority of releases in Alberta do not require cash upfront. You may be released on a promise to pay a certain amount only if you fail to attend court or breach one or more of your conditions.
Cash Bail: The court may require a cash deposit if you live out of province or if it is deemed absolutely necessary. A cash deposit is usually a few hundred dollars, depending on the severity of the charge.
Surety: The court may require a surety—a friend or family member who either provides a cash deposit or alternatively, promises to pay a certain amount if you fail to attend court or breach one or more of your conditions. A surety is required to supervise you. If you breach your conditions, the surety could lose their pledged money and has an obligation to report your breach to the police.
Why You Need a Bail Hearing Lawyer Calgary
You generally only get one chance at a bail hearing; if you are denied, appealing the decision in the Court of King’s Bench is a lengthy, difficult, and expensive process. This is why having a dedicated criminal defense lawyer is crucial.
At White and Jeet Law, we act quickly to contact the Crown prosecutor, formulate a release plan, arrange potential sureties, and argue your case using the latest Criminal Code provisions. We fight to secure your release on the least restrictive terms possible.
Disclaimer: The information provided in this blog post is for general educational purposes only and does not constitute legal advice. Criminal law is complex and outcomes depend heavily on the specific facts of a case. If you or a loved one requires a bail hearing, consult with a qualified criminal defence lawyer immediately.
