A bail hearing refers to a specific type of judicial proceeding.
After the police have laid charges and arrested a suspect, the Criminal Code of Canada grants them to power to release the accused. This can be in the form of an “Appearance Notice,” for example, or a “Promise to Appear” with an “Undertaking”.
In certain circumstances, the police may exercise their discretion not to release. Although the Criminal Code of Canada specifically limits these circumstances, in practice these limitations (or justifications not to release) are rarely referenced. When the police decline to release an accused – either from the station or at the scene of a charge – the Criminal Code specifically requires them to bring the accused before a Judge or Justice of the Peace within 24 hours of arrest – or “as soon as practicable” thereafter. This language is found in s.503 of the Code.
503 (1) A peace officer who arrests a person with or without warrant…shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:
(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible.
Bringing an accused “before a justice” marks a pivotal point in any criminal proceeding: the point at which the judiciary begins to supervise the work of the police.
Up until this point in the criminal process, the police investigating a specific crime have largely operated unsupervised. With the exception of obtaining prior authorization for warrants and the like, they surveil, gather evidence, and arrest without their work being overseen. Requiring them to bring an accused person who has been arrested before a judge within 24 hours ushers a critical level of oversight into their work – and with admirable swiftness.
Because judges aren’t police. In our adversarial model inherited from the Brits, their task is not to investigate crime but to find the truth and uphold the law. And one of the most important laws in Canada is the Canadian Charter of Rights and Freedoms. This document contains two important rights as it relates to bail: They extend to everyone in Canada.
The first is the presumption of innocence:
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
The second is the right not to be denied reasonable bail:
(e) not to be denied reasonable bail without just cause;
In the push and pull between the competing forces of “crime prevention” and “individual liberties,” these two constitutional giants animate the entire law of bail. Remember: they are constitutional rights, which means they form part of the highest land of the nation. Higher than the Criminal Code, higher than police authority. One of these rights asks: why should we detain people in custody if they are presumed innocent?
The other replies: we shouldn’t, unless there is a damn good reason for doing so. The judiciary is the body of government entrusted with enforcing these sacred laws. A skilled criminal lawyer is the whip that ensures nobody forgets them!