The Importance of Bail

The matter of bail has been in the media lately as a result of one famous inmate. Lawyers Denis Edney and Nate Whitling have fought to have Omar Khadr released from custody pending a determination of the validity of his conviction in the United States. While many people hold an opinion as to whether Khadr himself ought to have been released, many don’t know the role that bail (or judicial interim release as its sometimes called) plays in the administration of justice and its importance to the presumption of innocence.

In Canada, the right to reasonable bail is enshrined in section 11(e) of the Charter of Rights and Freedoms. This means that all people accused of an offence have a right not to be denied bail without just cause. What constitutes just cause for denial of bail is outlined in section 515(10) of the Criminal Code and includes what are often referred to as the primary, secondary and tertiary grounds for denial of bail. The primary ground allows a judge to deny bail when there is reason to believe that the accused person will not appear for his court dates. The secondary ground allows for denial of bail when it is necessary to protect the public having regard to the likelihood that the accused will commit another offence if released. The final ground for denial of bail is the third or tertiary ground. This ground refers to a detention in custody which is necessary to maintain public confidence in the administration of justice. Very rarely invoked, the tertiary ground only applies in serious cases, most commonly murder.

The most important reason why accused persons in Canada enjoy the right to reasonable bail is to maintain the presumption of innocence and the principle that a person is not punished before she is convicted. If accused people are held in custody until their trial, the justice system runs the risk of punishing someone who is factually or legally innocent. Also, from a practical standpoint, an accused person who has been denied bail is more likely to enter a guilty plea in an effort to lessen the amount of time that they will be incarcerated, rather than plead not guilty and hold the Crown to strict proof of their case. In practice in Alberta, trials are often held 12 – 18 months from the time that a person is charged. For an accused person to spend this amount of time in custody for a crime which they did not commit works an injustice to them and causes a stain on the administration of justice. Each of these potential scenarios is meant to be safeguarded by the requirement that an accused person be tried within a reasonable time, a concept deserving of an article of its own.

The delay associated with obtaining a trial and proving your innocence is but one reason to consult with a lawyer at Royal & Company as soon as your are investigated for an offence. Ensuring that you are fully represented at a bail hearing protects your right to reasonable bail and ensures that the Crown will be put to the strict proof of their case against you. If you have been contacted by the police about an investigation or charge, contact the lawyers at Royal & Company today.