Understanding Bail in Canada: What Happens After Arrest

Being arrested can be overwhelming and confusing—especially if it’s your first experience with the criminal justice system. Whether you’re in Calgary, Edmonton, or anywhere in Alberta, your first concern is often the same:
“Will I get out on bail?”

In Canada, the law of bail—also called Judicial Interim Release—is governed by the Criminal Code and shaped by principles set by the Supreme Court of Canada. In this blog, we’ll break down everything you need to know about how bail works, what courts consider, and why having a strong legal team from the outset is essential.

What Happens Immediately After Arrest?

When a person is arrested, police must decide whether to:

• Release the person from the scene or station, with conditions (under s. 497 or s. 498 of the Criminal Code), or

• Hold them for a bail hearing before a Justice of the Peace, which must occur within 24 hours under s. 503(1)(a) of the Criminal Code (or “as soon as possible” if no court is available).

If police believe the person cannot be safely released on conditions, the matter proceeds to a formal bail hearing.

The Role of the Crown and Initial Disclosure

When bail is contested, the Crown Prosecutor must typically provide initial disclosure—the foundational evidence underlying the charges—to defence counsel before the hearing.

This is where early legal representation is critical. A skilled criminal defence lawyer can:

• Negotiate a consent release with the Crown

• Propose a reasonable bail plan

• Challenge weak evidence, even at this early stage

In many cases, even limited disclosure allows the defence to show that detention is unnecessary, leading to release.

What If the Crown Opposes Release?

If the Crown objects to release, the matter proceeds to a contested bail hearing, where the Court hears:

• The anticipated evidence

• The accused's criminal record (if any)

• The proposed bail plan

This is not a trial, but the quality of the Crown’s case still matters. The defence may challenge:

• Weak or hearsay evidence

• Gaps in investigation

• Overstated public safety concerns

What Is a Bail Plan and Why Does It Matter?

A bail plan outlines how the accused will live and behave while on release. A strong plan can be the key to getting out of custody.

Effective bail plans typically include:

• A fixed residence (where the accused will live)

• Employment, school, or vocational training

• Community support (letters or in-person testimony from mentors, family, clergy)

• Supervision by a surety, if required

• Conditions such as curfews, no-contact orders, or reporting to police

• Cash bail, especially in reverse-onus or serious cases

What Is a Surety?

A surety is a responsible person (usually family or close friends) who:

• Agrees to supervise the accused

• Ensures they follow bail conditions

• May pledge or deposit money as a guarantee

If the accused breaches their bail, the surety may lose the money they pledged.

The Three Grounds for Bail (Primary, Secondary, Tertiary)

Under s. 515(10) of the Criminal Code, the court must consider three grounds when deciding whether to release or detain someone:

1. Primary Ground – Will the accused attend court?

• Past failures to appear

• Transience or unstable housing

2. Secondary Ground – Does the accused pose a risk to public safety?

• Risk of committing new offences

• Past violence or breaches

3. Tertiary Ground – Will public confidence in the justice system be undermined if the person is released?

• Applies in high-profile or serious cases

• Considers the strength of the Crown's case, seriousness of the offence, and potential sentence

R. v. Antic and the “Ladder” Principle in Canadian Bail Law

In R. v. Antic, 2017 SCC 27, the Supreme Court of Canada clarified that:

The default position is release on the least restrictive conditions necessary to ensure the accused will attend court and not commit further offences.

The Court rejected routine overuse of cash bail and strict conditions, emphasizing a “ladder” approach, where courts must consider:

1. Release without conditions

2. Release with minimal conditions

3. Release with a surety

4. Release with monetary pledges or deposits

5. Detention

The principle is clear: Start at the bottom of the ladder and move up only when justified.

Who Has the Onus at a Bail Hearing?

In most cases:

• The Crown bears the burden to justify detention (s. 515(1)).

But in reverse-onus situations (s. 515(6)), the accused must show why they should be released. This applies when:

• The person is charged with an indictable offence while already on bail

• The offence involves a firearm, criminal organization, or terrorism

• The person is not ordinarily a resident of Canada

In reverse-onus bail, a strong bail plan becomes even more critical.

Scrutinizing the Crown's Case at Bail

Even at this early stage, the defence lawyer should:

• Examine initial disclosure for deficiencies

• Cross-examine police or Crown witnesses where permitted

• Emphasize weak evidence or missing elements

Though the bail hearing isn’t a full trial, the strength of the Crown’s case is highly relevant—particularly for tertiary ground detention or reverse-onus cases.

Relevant Criminal Code Provisions

Here are the main sections involved in Canadian bail law:

SectionDescriptions. 503Appearance before a Justice within 24 hourss. 515Judicial interim release frameworks. 515(6)Reverse-onus provisionss. 515(10)Primary, secondary, and tertiary groundss. 519Detention pending appeal of bail decisions. 523Cancelling or varying a release order

Alberta Bail Practice: What to Expect

In Alberta, initial bail hearings are typically heard by Justices of the Peace within 24 hours via video link. For more serious matters, or if bail is denied, the matter can be brought before a Provincial Court Judge for a bail review or reconsideration.

Your defence lawyer plays a vital role in:

• Negotiating consent release

• Securing initial disclosure

• Crafting and presenting a strong bail plan

Final Thoughts: Bail Is the First—and Often Most Important—Step in Your Defence

Being arrested does not mean you are guilty. But the process of getting out of custody—legally and responsibly—can shape the rest of your defence. Whether you’re dealing with a first-time arrest or a serious charge, early legal advice makes all the difference.

If you or a loved one is in custody in Alberta, call my office immediately. I can help:

• Secure timely disclosure

• Present a compelling bail plan

• Advocate for your release

📞 Contact me today for urgent bail assistance.