La loi vos droits

Offenders and Accused Persons

Interim Release (Bail Hearings)

When a police officer arrests someone, she must let her go free again as soon as possible. Sometimes, however, the police might keep an arrested person in custody. In this case, the person must be brought before a judge within 24 hours to decide whether or not the person should stay in detention until the end of the trial. A bail hearing is where the judge makes this crucial decision.

In this Infosheet, Éducaloi informs you about the parts of the criminal process that are concerned with the detainment of accused people before and after the beginning of their trials.

How does detention begin?

When the police have reasonable grounds to believe that a person has committed an offence, they have the power – but not the obligation – to arrest that person. This means that they have the right to take away that person’s freedom, at least temporarily. But the law provides that a person should be released as soon as possible after being arrested. When the police intend to have an arrested person charged, they can give that person a court notice before setting her free. The notice can take many forms. The one that the police give to the accused at the police station is called a “promise to appear.” The promise to appear may include certain conditions that the person must respect once she is free.

In other cases, the arrested person is freed without formality. Later, if charges are laid, the court will send her a notice called a “summons” by mail.

The charges, the date and the time of the appearance are written on the notice. On that date, the person absolutely must come to court for the appearance, which is the first part of the court proceedings.

When might the police be allowed to keep an arrested person in detention?

Under certain circumstances, the police have the power to keep an arrested person in detention when they cannot conclusively identify him. The same is true if the police think the person may not show up to court after being summoned, or that she might destroy evidence or commit other offences if she is freed. Fear of reprisals against victims or witnesses is another reason that might justify continued detention. Finally, some crimes are so serious that it is impossible to justify freeing the individual before or during the trial – in cases of sexual assault against children, for example.

When the police decide to keep a person in custody, they must bring that person before a judge within 24 hours of the arrest. If the police do not respect this deadline, the proceedings may be dropped. This means that the prosecution of the accused cannot continue. For some time now, a court appearance by telephone has been possible in Quebec. This allows the time limit to be respected more easily in many cases – as when a person is arrested on a Friday evening.

What happens if the person is brought to court by the police officers?

When a person appears in court after being taken into custody upon his arrest, the prosecution may choose to oppose release in awaiting trial, but may also suggest that the person be freed with conditions. If the prosecution opposes her release, the accused can demand an interim release hearing before a judge. The judge will decide whether to release or to continue to detain the accused person.

The judicial interim release hearing generally takes place a little later, three days after the appearance.

What is the goal of the interim release hearing?

The point of the interim release hearing is to decide whether the accused should stay behind bars until the proceedings are over – this can sometimes take months. As with the arrest, the law provides that the accused should be released unless the evidence shows that it is necessary to keep her in custody. In this case, the prosecution must use the evidence available to prove to the judge that the accused should not be released. In the end, it’s up to the judge to decide. This means that if the judge has any doubt about detaining the accused person, he must set her free, with or without conditions.

What reasons justify keeping an accused person in detention?

When a judge decides to keep someone in detention, he bases this on the same reasons that the police consider following an arrest:

• If the accused is released, she might not show up to court for the appearance. For example, perhaps the accused has no fixed address, or she has already been convicted for not showing up to court in the past;
  
• The accused is dangerous. If she is freed, there is a good chance that she will commit other offences, destroy evidence, or try to intimidate the victim or witnesses. For example, an accused may be kept in custody because this is the third time in a month that she has assaulted the same victim;
  
• The detention of the accused is necessary to preserve public confidence in the legal system. For example, the accused is facing his tenth impaired driving charge and he refuses to attend addiction counselling.

What happens at the interim release hearing?

In order to prove that detention is necessary, the prosecutor usually calls the police inspector in charge of the file to the witness stand. He might also question the actual victim, although this is rare. These witnesses testify about the facts related to the charges against the accused. They can also tell the judge about the general behaviour of the accused (violence, addiction, alcoholism, access to firearms, etc.), about her previous convictions, or any other important information. The accused has the right to question these witnesses, in order to bring to light elements that support her case.

Rather than having these people testify, the prosecutor can decide to simply read the police report and witnesses' statements to the judge. The prosecutor needs the consent of the accused to do this.

When the prosecutor has finished presenting his evidence, the accused can respond. She can try to use her testimony to show a different side to her personal situation, with the goal of raising a doubt about how dangerous she is or to convince the judge that she will show up to court if released. She can also reassure the judge of her ability to leave the victim and witnesses alone. At this point, the accused doesn't have to testify about the actual charges against her. No one is allowed to ask her any questions on the subject — but if the accused decides to talk about the alleged offence on her own, the prosecutor can then question her about it.

The accused can also call witnesses. For example, a member of her family can testify that he is able to house and supervise the accused if she is set free.

If the judge remains convinced that it’s necessary to keep the accused in custody, the accused could end up staying behind bars for a long time. Don’t forget that unless the accused is found guilty by a judge, she is presumed innocent. This means that a person whom we presume innocent is in prison. For this reason, an accused who is kept in custody can demand that the proceedings happen faster, so that the period of detention is shortened.

What are the possible conditions of interim release?

The accused will generally have to respect certain conditions if she is released. This is true whether she is released by the prosecutor at the appearance, or by the judge at the interim release hearing,

These conditions are meant to ensure that the accused shows up to court for the hearing. They also aim to prevent the accused from repeating the offence, destroying evidence, or interfering with victims and witnesses. Every case is different, and release conditions are meant to be adapted to each situation.

Here’s an example: After having too much to drink, Paul got into a fight with his neighbour, Martin. Things quickly got heated. In a fit of rage, Paul whacked his neighbour over the head with a baseball bat.

If Paul is released, it might be on the following conditions:

• He must show up to court when asked;
  
• He must not communicate directly or indirectly with Martin, and must not go to Martin’s home;
  
• He must not consume alcohol;
  
• He cannot possess any firearms;
  
• He must keep the peace and exhibit good behaviour.

These conditions will stay in force until the end of Paul’s trial, and he has to respect them all. If he violates any of the conditions, it’s considered an offence. A breach of any of them could lead to his arrest and return to custody.

What is a surety?

Sometimes the court demands certain guarantees from the accused person, in order to make sure the conditions of release are respected. For example, the person could be obliged to deposit an amount of money before being released. The deposit can also be made by other people, like the parents or the friends of the accused person. In that case, the person who deposits the money is called a “surety.” In other situations, the accused or the surety can “warrant” the amount, without actually having to deposit the money at the court.

In such cases, if the accused violates any of the conditions of interim release, the prosecution can ask that the money deposited or warranted be taken from the accused. On the other hand, if the accused respects all of the conditions during the proceedings, she or the surety can get the money back or be released from the warranty, whether or not the accused is found guilty.

Is it possible to have the judge’s decision reviewed?

The judge’s decision during the interim release hearing can be reviewed after the preliminary inquiry, or by a judge of the Superior Court.

The review of the decision before the Superior Court can be requested by either the defence or the prosecution. It is up to the side making the request to show on a balance of probabilities that the order should be changed or cancelled.