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I'm being held for a bail hearing. How will the court decide if I can be released?

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I'm being held for a bail hearing. How will the court decide if I can be released?
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Nishnawbe-Aski Legal Services Corporation
CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)

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I'm being held for a bail hearing. How will the court decide if I can be released?
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Reviewed: 
July 1, 2018
Answer

If you’re arrested and the police don’t release you from custody, you will be held for a bail hearing.

At a bail hearing, a judge or justice of the peace will decide if you should be held in custody or released. If you’re granted bail, you will likely have to follow conditions given to you by the court.

A bail hearing is not a trial. The judge or justice of the peace doesn’t decide whether you're guilty or innocent. Instead, the judge or justice of the peace considers the risk of letting you go back into the community while your case is being considered by the courts.

Grounds of detention

The risks of letting you out on bail are referred to as grounds of detention or reasons why you should not be let out on bail.

The Crown considers 3 grounds of detention:

  • Primary – You may not come to court when required.
  • Secondary – You may commit another crime, or the public may not be safe while you're out on bail.
  • Tertiary – Because of the circumstances of your offence, the public might feel that the justice system is not working if you’re let out of custody.

There are several types of releases that the court can order. Each type involves specific levels of supervision and conditions.

Ladder principle

Bail court uses an approach called the ladder principle to decide the level of supervision you should have, if you’re released. The ladder principle helps ensure that your freedom is only restricted as much as it must be to satisfy the concerns of the court.

Bail plan

Your lawyer or duty counsel will tell the court about your bail plan. If your lawyer thinks it's necessary for you to include a surety in your bail plan, you should.

If your lawyer hasn’t recommended a surety and the court decides that one is necessary, the court can “set” your bail to include a surety. This means that the court has decided you can be released if you find a suitable surety. You will not be released from custody until you have “met” your bail, by presenting a suitable surety to the court.

Having a surety can help you address the risks that:

  • you may not go to court when required
  • you may commit another offence, or the public may not be safe with you out on bail

If you don't have anyone who can be a surety, you may be released:

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