Ontario Bail Hearings: Pre-Trial Release and s.11(e) Charter Rights

The s.11(e) Charter Right

Section 11(e) of the Charter provides that any person charged with an offence has the right “not to be denied reasonable bail without just cause.” The Supreme Court of Canada held in R v Antic, 2017 SCC 27, that s.11(e) requires courts to release accused persons on the least onerous conditions that will address the concerns raised by the Crown, working through a ladder of conditions from least to most restrictive.

The Bail Hearing Process

Show cause hearing: A bail hearing is a “show cause hearing” under the Criminal Code. In the ordinary case, the Crown bears the burden of “showing cause” why the accused should be detained (s.515(1)). Where a reverse onus applies, the burden shifts to the accused to show why their detention is not justified.

Timing: An accused must be brought before a justice within 24 hours of arrest without undue delay (s.503(1)), or as soon as practicable. A detained accused may apply for a bail review if the hearing cannot proceed within three clear days (s.520).

Evidentiary rules: Bail hearings proceed on a relaxed standard — the Crown and accused may tender evidence through oral testimony, police reports, Crown summaries, and typed records. The justice may receive any “credible or trustworthy” evidence (s.518(1)(e)). Hearsay is regularly admitted.

Grounds for Detention

The Crown must establish one of three grounds to justify detention (s.515(10)):

• Primary ground (s.515(10)(a)): Detention is necessary to ensure the accused's attendance in court. Factors: ties to the community, roots, employment, family obligations, history of failing to appear (FTA), strength of the Crown's case, seriousness of the offence.
• Secondary ground (s.515(10)(b)): Detention is necessary for the protection or safety of the public, having regard to all circumstances including the substantial likelihood of reoffending and the gravity of the offence. This is the most common ground for detention. The Crown must show a substantial likelihood — not mere possibility — that the accused will reoffend.
• Tertiary ground (s.515(10)(c)): Detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment. Restricted to very serious cases (murder, mass casualties, etc.) — R v St-Cloud, 2015 SCC 27.

Reverse Onus Provisions

In certain categories of cases, the burden shifts to the accused to show cause why their detention is not justified:

• Serious drug offences (s.515(6)(d)): Trafficking, production, or importation of Schedule I or II substances — accused must show cause.
• Firearms offences (s.515(6)(a)): Accused charged with certain firearms offences while subject to a prohibition order.
• Indictable offence committed while on release (s.515(6)(b)): Accused charged with an indictable offence alleged to have been committed while on judicial interim release for another indictable offence.
• Criminal organization and terrorism offences (s.515(6)(a)): Offences under ss.83.01-83.33 (terrorism), ss.467.11-467.13 (criminal organization), and certain CDSA offences.

In R v Morales, [1992] 3 SCR 711, the Supreme Court upheld the constitutionality of reverse onus provisions, finding that the Charter requires only that detention be justified under the s.515(10) grounds — the burden can be shifted in appropriate circumstances.

The Ladder Principle (Antic)

The Supreme Court in Antic confirmed that the bail regime must be applied using the “ladder” approach — courts must consider release options in ascending order of onerousness:

1. Release on an undertaking with no conditions (s.515(1))
2. Release on an undertaking with conditions (s.515(2)(a))
3. Release into the custody of a surety (s.515(2)(b))
4. Release on a recognizance with or without surety and with deposit (s.515(2)(c)-(e))

Courts must not impose conditions that are more onerous than necessary to address the specific grounds for concern. A surety should not be required if an undertaking with conditions will suffice.

Conditions of Release

Conditions must be rationally connected to addressing a bail concern. Common conditions:

• Reside at a specified address with surety
• Curfew (specific hours, GPS monitoring in some cases)
• No contact with named individuals (especially complainants in domestic violence cases)
• No-go zones (areas, schools, residences)
• Abstain from alcohol and drugs
• Weapons prohibition
• Report to police
• Surrender passport / not leave the province

Bail and COVID-era reforms (Bill C-75, 2019): Bill C-75 introduced a requirement that conditions be “necessary” to address a bail concern and proportionate to the gravity of the offence and circumstances. Courts cannot impose conditions that would likely cause the accused to breach bail and return to custody.

Sureties

A surety is a person (not a professional bondsperson in Canada) who agrees to supervise the accused and ensures their compliance with bail conditions. The surety pledges a specific amount — which is forfeited if the accused fails to comply or appear.

Surety qualifications: A surety must be a Canadian resident with sufficient financial means to make the pledge meaningful. The justice will inquire about the surety's assets, liabilities, income, relationship to the accused, and knowledge of the conditions. The Crown may challenge a proposed surety.

Forfeiture: If the accused breaches a condition or fails to appear, the surety is brought before the court. The court may declare forfeiture of all or part of the pledged amount unless the surety demonstrates they took reasonable steps to ensure compliance and had no knowledge of the breach.

Bail Review

Either the accused or the Crown may apply to the Superior Court for a review of a bail decision (s.520 for accused; s.521 for Crown):

• Accused review (s.520): Where the accused was detained or released on conditions the accused believes are excessive. The review judge must determine whether the original decision was proper on the evidence before the justice. New evidence may be admitted.
• Crown review (s.521): Where the Crown seeks detention or more restrictive conditions. Same standard — the Crown bears the burden on ordinary onus cases.
• Standard of review: The review judge may substitute their judgment where the original decision was not “proper” — i.e., was made on incorrect evidence, was legally wrong, or is clearly unreasonable (R v St-Cloudat para 128). Not a de novo hearing, but new evidence can be introduced.

Bail and Domestic Violence

In domestic violence cases, s.515(6)(b.1) applies where the accused is charged with a listed offence against an intimate partner and has a prior conviction for an offence of domestic violence — creating a reverse onus. Additionally, courts will virtually always impose no-contact conditions in domestic violence bail orders.

The Tackling Violent Crime Act amendments and subsequent Bill C-75 reforms have strengthened bail restrictions in intimate partner violence cases. Courts must consider any patterns of violence when setting conditions.

Indigenous Accused and the Gladue Principles

The Supreme Court in R v Gladue, [1999] 1 SCR 688, held that courts must consider the systemic and background factors that may have contributed to an Indigenous accused's situation when making sentencing decisions. The Ontario Court of Appeal confirmed in R v Summers, 2014 SCC 26, that Gladue principles also apply at the bail stage — courts must consider the unique circumstances of Indigenous accused when assessing bail conditions and the s.515(10) grounds.

Summary

Bail proceedings in Ontario require rapid assessment of grounds for detention, knowledge of reverse onus provisions, and effective use of the ladder principle from Antic. The Crown's burden on the secondary ground (substantial likelihood of reoffending) is frequently contested. Effective bail advocacy involves understanding the specific concerns raised on each ground and proposing targeted conditions — or a surety plan — that address those concerns at the least onerous level.

Atticus helps Ontario criminal defence lawyers manage urgent bail hearing timelines, track client contact conditions, and stay organized across multiple files — with LSO-compliant trust accounting for criminal defence retainers.