Judicial Interim Release (Bail)
If you have a friend or family member that was just arrested by the police, contact Michael Dyck immediately and he can start helping. He has experience in bail courts in Winnipeg and knows how to properly prepare the best plan for a bail application. Michael Dyck works quickly for clients in custody who want to apply for bail and he is willing to visit clients at the Winnipeg Remand Centre after normal business hours.
The information provided below is designed provide some basic legal information. It is not legal advice. If you would like legal advice about what to do with charges you are currently facing, you will need to talk to a lawyer. Please visit the Contact page for more information.
How can a person be released from custody after they are arrested?
When a person is arrested and charged with a crime, there are a a few different ways they can be released from custody:
- Police. The police may have discretion to detain or release the individual. The police may release the accused with a promise to appear (which lists the first court date), and/or an undertaking to an officer in charge. An undertaking is a set of conditions that are designed to address the concerns upon release.
- Magistrate, also known as a justice of the peace. A magistrate may have the discretion to release an individual either on an undertaking or on a recognizance. Hearing before a magistrate can be done very quickly after arrest but often without the assistance of a criminal defence lawyer.
- Crown Attorney. A Crown Attorney may consent to the release of an accused on either an undertaking or a recognizance if the accused understands and agrees to abide by the conditions.
- Judge. If the Crown Attorney does not think it an accused should be released, an application for judicial interim release (bail) can be made before a Judge who hears arguments by both the Crown Attorney as well as the criminal defence lawyer and then determines if the accused is a candidate for release.
What test does the justice system use to determine if an accused can be released?
The test for bail can be found under section 515(10) “Justification for detention in custody” of the Criminal Code of Canada (link). There is a three part test that police, Crown Attorneys, and Judges use. Bail is really a risk assessment and it is determined if certain conditions can be put in place that would reduce the risk of the accused to re-offend to a safe level. Below, is a simplified version of the test in plain language so you can understand the basics. In practice, the test can be much more complicated, so please speak to Michael Dyck if you want more details or a fuller understanding of the test.
- Primary ground. Can the accused person be trusted to attend court to deal with the charges? A prior criminal record for missing court dates, escaping lawful custody, or if you reside outside the province are red flags on this part of the test. If you pass this part, you move on to the next part.
- Secondary ground. If released, is there a substantial likelihood the accused person will re-offend by committing a new criminal offence or by not following the bail conditions and whether or not that will impact the safety of the public? A criminal record for related offences or breaches of court orders and if an accused had already been released on previous charges are red flags. Most accused are denied bail on the secondary ground. If you pass this part, you move on to the next part.
- Tertiary ground. Would releasing the accused bring the administration of justice into disrepute? This part of the test is very rarely used or relied upon. Simply put, an informed public would be outraged if the accused were to be released on bail and lose trust in the justice system. The Judge can consider the evidence the Crown Attorney has, the seriousness and circumstances of the offence, and if a conviction would result in a lengthy prison sentence would.
How many times can I try for bail?
Every accused has one opportunity to apply for judicial interim release (bail). Because you have only one chance, Michael Dyck thinks it is important that you can create the strongest possible bail plan together. It is important to consider the pros and cons of any application for release. Sometimes, it may be better to wait for a period of time before applying for bail. You need to speak to a lawyer like Michael Dyck who has experience in bail courts in Winnipeg to determine when the right time to apply for release is and what the best plan is.
Once you are denied bail, you have the option of applying for release to a higher level of court and this is called a Bail Review. If the first application was heard in the Provincial Court, then the higher level of court is the Court of Queen's Bench. Not everyone qualifies for a Bail Review; you must show the Provincial Court Judge made an error in law or that there has been a change of circumstances. Bail Reviews require the accused or his/her lawyer to file a notice of motion, an affidavit, and other materials supporting the motion. Transcripts from the original hearing must be ordered and filed. Overall, Bail Reviews are not a "second kick at the cat" and they should only be considered if one of the two criteria are met. It is usually better to work on the strongest bail plan in the beginning and make the argument in the Provincial Court.
What is a recognizance?
A recognizance is a court order. It is the promise of the accused person to follow a set of conditions and the accused person agrees to pay a sum of money if he/she does not follow the conditions. With a recognizance, the accused does not have to pay any money to be released from custody. However, if the person is re-arrested and charged with not following one of the conditions on the recognizance or a new criminal offence, the government may apply to the court to note the accused in default of the recognizance amount.
Will I need to do a “cash bail”?
In some cases, a Crown Attorney or a Judge may require the accused to pay a cash deposit. A cash deposit is NOT necessary in most cases. A cash deposit is usually necessary when the accused does not live in the province or is facing very serious criminal charges. The accused person will remain in custody until the cash deposit is paid to the Court. Once all of the charges are dealt with by guilty plea, a stay of proceedings, or trial and if the accused person followed all of the conditions of their release, the cash deposit will be returned. If the accused person is re-arrested and convicted of any new charges, the cash deposit may be noted in default and remain with the court.
What is a surety? Can I be a surety?
A surety is a person from the community who agrees to supervise and monitor the accused person while they are released. In some ways, the surety acts as a jailor to ensure that the conditions of release are followed by the accused. If the surety is aware the accused is not following the conditions, the surety is supposed to contact the police and report it. If the surety changes his or her mind, it is possible to go to the courthouse and withdraw as the surety. Once that happens, a warrant is issued for the arrest of the accused. Courts often like it when a bail plan includes a surety because it is a second person agreeing to help control the risk of the accused. A surety must be prepared to commit to an amount of money that he or she would pay if the accused is re-arrested for a new criminal offence or not following the conditions.
Magistrates are responsible for qualifying you as a surety and there is some discretion that they can exercise. In order to qualify as a surety, you should:
- have a fixed address in the province of Manitoba
- not have a serious criminal record, but no criminal record is preferred
- not be a co-accused
- not be a lawyer
- not be acting as a surety for another accused already
- qualify financially by either showing proof you own real property (a house or land) or that you have steady employment
In September 2014, the Province of Manitoba released new documents to explain the role and responsibility of a surety as well as a new application form. Click to download the Information Pamphlet or the Surety Application.
Another good resource is “What Sureties Need to Know” from the Ontario Provincial Government.