Ontario Criminal Bail Guide 2024

The Bail Framework in Ontario Criminal Courts

Bail in Ontario is governed by Part XVI of the Criminal Code of Canada, primarily ss.493-529. The constitutionally embedded right to reasonable bail under s.11(e) of the Canadian Charter of Rights and Freedoms means that bail restrictions must be justified — detention is the exception, not the rule. The Supreme Court of Canada in R v Antic (2017) reinforced the ladder principle: courts must start with the least restrictive form of release and move to more restrictive conditions only if justified.

Ontario's bail system has faced significant scrutiny in recent years — prolonged pre-trial detention, systemic racial disparities identified in the Ontario Human Rights Commission v Ontario proceeding, and political pressure following high-profile violent offences by persons on bail. The result has been legislative reform (Bill C-48, 2023) and continued judicial emphasis on Charter compliance.

Types of Release: The Ladder Principle

Under R v Antic (2017), the bail process must follow a ladder or escalating approach — beginning with the least restrictive form of release and climbing only if justified:

1. Undertaking without conditions (s.503) — Release on promise to appear, no deposit
2. Undertaking with conditions (s.515(2)(a)) — Release with conditions but no surety or deposit
3. Recognizance without surety (s.515(2)(b)) — Release on accused's promise to pay a sum if they breach
4. Recognizance with surety (s.515(2)(c)) — Surety (third party) vouches for the accused and may forfeit money if accused breaches
5. Recognizance with deposit (s.515(2)(d)) — Cash deposit, usually only for accused not ordinarily resident in province
6. Detention — Only if no form of release is adequate

Courts cannot impose a higher rung without justification for each step. The Supreme Court in Antic criticized routine imposition of cash bail for accused who cannot afford it — converting a pre-trial measure into de facto imprisonment for the poor.

Show Cause Hearings Under Section 515

A show cause hearing (bail hearing) under s.515 of the Criminal Code must be held within 24 hours of arrest, or as soon as practicable. The hearing is typically before a justice of the peace in the Ontario Court of Justice.

Evidentiary Rules at Bail Hearings

Bail hearings are summary proceedings — the formal rules of evidence do not apply. Under s.518, the justice may receive hearsay evidence, and the Crown typically leads evidence through a police synopsis rather than live witness testimony. The accused may cross-examine and lead evidence, but the expedited nature of bail hearings usually means affidavits and a surety's viva voce testimony are the primary defence evidence.

Criminal record and outstanding charges: The Crown routinely leads the accused's CPIC record (including outstanding charges and prior failures to appear) under s.518(1)(c). Defence counsel must be prepared to contextualize prior convictions and charges — especially old or unrelated offences that inflate the apparent risk.

Grounds for Detention Under Section 515(10)

Even if the Crown establishes one of the three grounds for detention, the court must still consider whether any conditions would adequately address the risk. Section 515(10) sets out three grounds:

Primary Ground — Court Attendance (s.515(10)(a))

Detention is necessary to ensure the accused appears in court. Relevant factors: the accused's ties to the community (employment, family, residence), prior failures to appear, the severity of the charge (greater penalty = greater incentive to flee), and whether the accused has roots in Ontario or strong connections abroad.

Secondary Ground — Public Protection (s.515(10)(b))

Detention is necessary for the protection or safety of the public — there must be a substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice. This requires more than speculation — the likelihood must be substantial and the offence serious. Courts look at the nature of the charge, prior criminal record (especially similar offences), pattern of offending, and whether the alleged offence was committed on release.

Tertiary Ground — Maintaining Confidence (s.515(10)(c))

Detention is necessary to maintain confidence in the administration of justice, considering: (i) the apparent strength of the prosecution's case; (ii) the gravity of the nature of the offence; (iii) the circumstances surrounding the offence including use of a firearm; and (iv) the potential for a lengthy term of imprisonment.

The tertiary ground is most commonly invoked for serious violent offences and homicide. The Supreme Court in R v Hall (2002) upheld its constitutionality but cautioned that detention on the tertiary ground alone must be reserved for truly exceptional cases where the other grounds are insufficient.

Reverse Onus Bail in Ontario

In a standard bail hearing, the Crown bears the onus (burden of proof) of showing cause why the accused should be detained — s.515(3). In reverse onus situations, the burden shifts to the accused to show why detention is not justified.

Reverse Onus Situations Under s.515(6)

Reverse onus currently applies (pre- and post-Bill C-48) where the accused is charged with:

• An indictable offence allegedly committed while on release for another indictable offence
• Drug trafficking under ss.5, 6, or 7 of the Controlled Drugs and Substances Act
• An offence under ss.5-7 of the CDSA allegedly committed while not ordinarily resident in Canada
• Firearms offences listed in s.515(6)(a)(i) — including possession of prohibited firearm with ammunition, weapons trafficking, and certain robbery/extortion offences involving firearms
• Terrorism offences
• Organized crime offences under s.467.1

The accused meeting reverse onus must establish on a balance of probabilities that detention is not justified — the standard mirrors the normal Crown burden but falls on the defence.

Bill C-48: The Bail Reform Act (2023)

Bill C-48, the Bail Reform Act, received Royal Assent on September 21, 2023 after sustained pressure from Ontario, Alberta, and other provinces following high-profile crimes committed by persons on bail. The reforms target repeat violent offenders.

Key Changes Under Bill C-48

New reverse onus for repeat violent offenders: Bill C-48 added a new reverse onus situation — an accused charged with a serious violent offence (one involving the use, attempted use, or threat of violence with a weapon) who has a prior conviction for a violent offence in the previous 5 years will bear reverse onus. This targets the specific scenario of violent recidivists.

Serious violence consideration: Courts are now required to consider the accused's history of violent behaviour and previous failures to comply with release orders when making bail decisions. This codifies what many courts were already doing in practice but makes it an explicit statutory requirement.

Pattern of criminal behaviour: A new provision allows courts to consider whether the accused demonstrates a pattern of criminal behaviour — particularly relevant to prolific offenders who have numerous relatively minor offences rather than a single serious conviction.

Constitutional Concerns

Defence counsel have raised s.11(e) Charter arguments that expanded reverse onus provisions conflict with the constitutional right to reasonable bail. The Supreme Court of Canada's R v Morales (1992) test — whether the ground for detention is substantial and consistent with Charter values — remains the benchmark for challenging bail provisions. Bill C-48 cases will inevitably generate appellate guidance on whether the new reverse onus meets that standard.

Bail Conditions in Ontario

Release conditions must be reasonable and justified — courts cannot impose conditions that are more restrictive than necessary to address the grounds for detention. Common conditions in Ontario criminal matters include:

• House arrest: Confinement to residence except for specified purposes (medical, legal, religious, employment)
• Curfew: Return to residence by a specified time
• No contact: No contact with the complainant(s), witnesses, or co-accused
• Non-attendance: No attendance at specified locations (complainant's residence or workplace)
• Weapons prohibition: No possession of firearms or other weapons
• Reporting: Regular reporting to police (in person or by phone)
• Electronic monitoring: Ankle bracelet (used for serious cases; not routine)

The Supreme Court in R v Myers (2019) emphasized that conditions must be tailored to the specific risks identified at the bail hearing — boilerplate conditions that do not address those specific risks may be challenged on variation or bail review.

The Surety in Ontario Bail

A surety is a person who agrees to supervise the accused and may forfeit money if the accused breaches their release conditions or fails to appear. The surety must be acceptable to the court — typically someone with financial assets (to stand behind the promised forfeit amount), a stable relationship with the accused, ability to enforce compliance, and no criminal record.

The surety's obligations are serious: they agree to promptly notify police if the accused breaches conditions and to take active steps to ensure the accused appears in court. A surety who fails to adequately supervise an accused faces potential forfeiture of the recognizance amount under s.770.

Bail Review in Ontario

A bail review is a Superior Court of Justice proceeding challenging a bail decision:

• Section 520: Accused's review of a detention order or conditions of release
• Section 521: Crown's review of a release order

A bail review is not a fresh hearing — the Superior Court reviews the record of the bail hearing. To succeed, the applicant must establish either:

1. A material change in circumstances since the bail hearing (new information that was not available and could not reasonably have been obtained at the original hearing); or
2. An error in principle by the justice of the peace that affected the detention or release order

New information — a new surety, change in employment, resolution of outstanding charges — can constitute a material change. Defence counsel preparing a s.520 review must carefully distinguish between information that was truly unavailable and information that simply was not presented at the original hearing. The latter is generally insufficient.

Atticus for Ontario Criminal Defence Lawyers

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For criminal defence lawyers, Atticus tracks court appearances, manages multiple concurrent matters, and ensures retainer and trust fund compliance — so you can focus on the substantive bail arguments rather than administrative follow-up.

Frequently Asked Questions

What are the three grounds for detention at a bail hearing in Ontario?

Under s.515(10) of the Criminal Code: (a) the primary ground — necessary to ensure court attendance; (b) the secondary ground — substantial likelihood of committing an offence or interfering with justice; and (c) the tertiary ground — necessary to maintain confidence in the administration of justice, considering the strength of the Crown's case, gravity of the offence, and potential for a lengthy sentence.

What is reverse onus bail in Ontario?

In a standard bail hearing, the Crown bears the onus of showing cause for detention. In reverse onus situations under s.515(6), the burden shifts to the accused to show why detention is not justified. Reverse onus applies to offences committed while on bail for another indictable offence, drug trafficking, firearms offences, organized crime, terrorism offences, and — after Bill C-48 — repeat violent offenders.

What did Bill C-48 change about Ontario bail law?

Bill C-48 (2023) expanded reverse onus to repeat violent offenders — an accused charged with a serious violent offence using a weapon who has a prior violent conviction in the past 5 years now bears the burden of showing detention is not justified. Courts must also consider the accused's history of violence and pattern of criminal behaviour.

What is a show cause hearing in Ontario?

A show cause hearing is the bail hearing under s.515 where the Crown or accused shows cause why the accused should be detained or released. It must be held within 24 hours of arrest. The hearing is summary — formal rules of evidence do not apply and hearsay is admissible.

How does a bail review work in Ontario?

A bail review (s.520 or s.521) is a Superior Court review of a bail decision. To succeed, the applicant must show either a material change in circumstances since the original hearing or an error in principle by the justice of the peace. A bail review is not a fresh hearing — the court reviews the original record plus any new affidavit evidence of changed circumstances.