Bail reform in Canada is once again a hot topic. Understanding Constitutional protections and what the Criminal Code says about bail and the bail process is a critical first step to the discussion.
The political cries for bail reform are once again ringing through the streets of major cities in our country. Most notably, in April 2025, Ontario premiere Doug Ford famously called the bail system “broken” and insulted the judiciary by accusing them of being “bleeding-heart judges” who don’t follow the law set out by the government. This prompted a rare and scornful joint response by the chief justices of the Ontario Court of Appeal, the Superior Court of Justice and the Ontario Court of Justice. Given his criticisms, one can only wonder if Mr. Ford and others with these views have ever read the law on bail in Canada’s Criminal Code or actual court decisions on bail, or ever stepped foot into a bail court? In fact, many people haven’t unless they are involved in the criminal justice system somehow. Fear not – I’m here to help.
What is bail
When police charge someone with a crime, they may take the person into custody. The Crown then reviews the facts of the case and the law. The Crown can agree to the accused being released on bail. If the Crown does not agree to bail, the accused stays in custody and a bail hearing takes place. At the bail hearing, a judge or Justice of the Peace decides whether the accused should stay in jail or be released until their trial. If the accused receives bail, they usually have to follow certain conditions (rules) or risk going back to jail until their trial.
The presumption of innocence
To understand why bail exists, let’s start with a basic rule – the presumption of innocence. This cornerstone of democracy means we cannot indefinitely lock up every person accused of a crime simply because they have been accused of committing a crime.
How does the presumption of innocence support bail? First, sometimes people are actually innocent of the crime they’re accused of committing (yes, this happens). Second, the wait time for a trial or other process to resolve the charge can sometimes exceed the amount of jail time the Crown would be seeking on a guilty plea. This means a person could spend more time waiting in jail for their trial than they would get as a sentence at the end of that trial. Unfortunately, this is how slow the criminal justice system can be. Third, not every crime leads to jail time.
Consider the person accused of trying to steal a tray of chicken breasts from a grocery store. Or an accused who breached a radius condition on the bail because a bus stop on their route to work came within 100m of where the accused was not to be. The accused did not get on or off the bus at that stop. The accused was not driving the bus. The bus had taken a detour from its usual route. Do we throw both these accused in jail for months and months until their cases eventually conclude? This might mean not seeing daylight for weeks (because of regular staff shortages at the detention centers) and only having a 20-minute period each week to make a phone call (if they can get access to a phone) or a shower (if they can get access to a working shower)?
What the law says about bail
There are extensive rules about what the Crown or the court must consider when deciding whether someone should receive bail or stay in custody until their trial.
Usually, the Crown must show why the accused should stay in custody, called a “Crown Onus” bail. In some cases, the accused must show why they should be released, called a “Reverse Onus” bail.
Section 515(1) of the Criminal Code says the accused should say in custody only if one or more of the following three grounds exists:
- Primary Grounds: Detaining the accused is necessary to ensure they will appear in court when required.
- Secondary Grounds: Detaining the accused is necessary if there is a “substantial likelihood” the accused will commit a further crime or interfere with the administration of justice. If the accused is released, public protection or safety will be at risk. More risk may exist if the complainant or any witnesses are younger than 18 years of age.
- Tertiary Grounds: Detaining the accused is necessary to maintain confidence in our criminal justice system, considering the following:
- how strong the Crown’s case appears to be at this point,
- the seriousness of the offence,
- the circumstances around how the accused committed the crime, including whether they used a firearm, and
- whether the accused could face a lengthy prison sentence if convicted. If a firearm is involved, the offence has a mandatory minimum jail term of at least 3 years.
Canada’s Criminal Code also says decision-makers must consider whether an accused is Indigenous or a member of a vulnerable community. This is because of Canada’s history of colonial violence, racial profiling, and overrepresented populations (especially Black and Indigenous accused) in our prison system.
The Supreme Court of Canada has said “trials are not — nor are they meant to be — tea parties.” The same can be true of bail hearings. When the Crown and defence (accused’s lawyer) have opposing views on bail, especially for serious offences, hours are spent litigating – examining witnesses, cross-examining witnesses, and making legal arguments. The court then makes a ruling after considering the primary, secondary and tertiary grounds described above, as well as all applicable laws and previous bail decisions.
If the court grants bail, it will impose conditions on the accused that reflect the seriousness of the allegations, as well as the unique circumstances of the case. The Crown and defence can also each make arguments to the court about what conditions should be imposed.
When the accused breaches bail
Sometimes, an accused will breach (not follow) their bail conditions. If that happens, the police can arrest them. And then the above process repeats itself. However, it is much harder for an accused to be released again once they’ve breached bail or if they have a history of violating court orders such as bail.
How the breach happened is also important: Was the accused accidentally breaching bail, like the public transit example above? Or did the accused repeatedly text or call a complainant the court ordered them not to contact? These two examples are legally and factually different. The bail considerations are thus legally and factually different.
Commentary on Canada’s bail system
Critics like Mr. Ford still maintain that, despite the rules and laws set in place for bail, the courts continue to make mistakes when applying the law. But guess what? If either party believes the court made a legal error in its decision (including a Crown attorney who does this for a living and who works with police), they can appeal the decision to a higher court. More hours are then spent litigating – examining witnesses, cross-examining witnesses, and making further legal arguments. To suggest that every participant in this process – defence attorneys, Crown attorneys, Justices of the Peace and judges – all have zero concern for public safety and are clueless as to how to properly apply the law of bail in Canada is nothing more than a fear-mongering mischaracterization of our bail system.
While nothing is perfect, we live in a democratic society that demands Constitutional principles be paramount to uninformed and constitutionally-offensive rants. I would wager a large bet that if you asked any criminal defence lawyer in the country, no one would agree with you that getting bail in our criminal courts is easy or guaranteed. So, while it’s easy to criticize an underfunded, overcrowded system from the comfort of one’s soapbox, it’s quite hard to convince the court to release an accused back into the community when they face serious charges.
Some food for thought: Many accused, while released on strict bail conditions, find new purpose in life by volunteering, working and reconnecting with their communities and support systems. That propels them to go on to leave pro-social, crime-free lives and never appear before the courts again. Isn’t that the ultimate endgame to all of this anyways?
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Melody Izadi
