3.18 Judicial Interim Release

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Revised June 20, 2024

Table of Contents

• 1. Overview
• 2. The Presumption of Innocence
  • 2.1 The Right Not to Be Denied Bail Without Just Cause
  • 2.2 The Right to Reasonable Bail
• 3. The Decision to Oppose Bail
  • 3.1 Crown Onus Offences
  • 3.2 Reverse Onus Offences
    • 3.2.1 Conditional Reverse Onus Provisions
    • 3.2.2 Offence-Based Reverse Onus Provisions
  • 3.3 Irrelevant Criteria
  • 3.4 Background and Systemic Factors
  • 3.5 Consultation
• 4. Conditions of Release
  • 4.1 Least Onerous Conditions in the Circumstances
  • 4.2 Guidance on Specific Bail Conditions
  • 4.3 Conditions to Protect Victims, Witnesses and Justice System Participants
  • 4.4 Surety Releases
  • 4.5 Cash Bails
  • 4.6 The Opioid Crisis
• 5. The Bail Hearing
  • 5.1 The Right to a Timely Bail Hearing
    • 5.1.1 Seeking Adjournments
    • 5.1.2 Lengthy Bail Hearings and Delay
  • 5.2 Credible or Trustworthy Evidence
  • 5.3 Cross-Examination of Sureties
• 6. Bail Forfeiture (or Estreatment)

1. Overview

Crown counsel’s decision whether to oppose bail or consent to release is a challenging and important decision. The exercise of this discretion must focus on the statutory grounds for detention, described below:

The primary grounds

Detention is necessary to ensure that the accused attends court.

The secondary grounds

Detention is necessary for the protection or safety of the public, including victims or witnesses, having regard to all the circumstances including any substantial likelihood that the accused will, if released, commit an offence or interfere with the administration of justice.

The tertiary grounds

Detention is necessary to maintain confidence in the administration of justice.

The grounds for detention must be balanced with the liberty interests of the accused, the impact that detention may have in a particular case (for example, loss of employment, severing of family ties, or the pressure to plead guilty), and whether any systemic factors resulted in the accused coming before the courts.

It is important that Crown counsel exercise their discretion in a timely fashion. Discretion must also be exercised with objectivity, independence, fairness, and without bias, prejudice, or animus towards the accused. Crown counsel must take active steps to set aside any biases when assessing the allegations and when assessing the appropriateness of a surety who offers to supervise the accused.

Crown counsel must apply the principle of restraint. Codified in s. 493.1 of the Criminal Code, the principle of restraint states the following:

In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or (515)(10), as the case may be.

While Crown counsel must seriously consider all relevant factors in exercising discretion, the protection of the public and victims warrants special consideration.

2. The Presumption of Innocence

The presumption of innocence is one of the most fundamental rights in Canadian criminal law. This right is enshrined in s. 11(e) of the Charter. Section 11(e) requires that detention occur only in a narrow set of circumstances, for specific purposes, and when it “is necessary to promote the proper function of the bail system.”^{Footnote 1} The denial of bail cannot be for “any purpose extraneous to the bail system.”^{Footnote 2} For example, Crown counsel must never seek detention for punishment, retribution, or reform.^{Footnote 3}

The protection afforded under s. 11(e) encompasses two components:

1. the right not to be denied bail without ‘just cause”; and
2. the right to “reasonable bail” in terms of any conditions imposed, including the quantum of any monetary form of bail.^{Footnote 4}

Both of these concepts are discussed below.

2.1 The Right Not to Be Denied Bail Without Just Cause

The Supreme Court has repeatedly made clear that the right not to be denied bail without just cause is an essential element of an enlightened criminal justice system.^{Footnote 5} This principle entrenches the presumption of innocence and safeguards the liberty interests of an accused.

Just cause refers to the statutory grounds that justify pre-trial detention enumerated in s. 515(10) of the Code, and the reverse onus provisions in s. 515(6).

Section 515(10) sets out the grounds on which bail can be denied. Crown counsel bears the burden to justify detention on a balance of probabilities unless the offence is subject to a reverse onus. In general, there is just cause to deny bail where the accused’s detention is necessary on any of the statutory grounds set out earlier and summarized again below:

1. To ensure attendance in court (the “primary grounds”);
2. For the protection or safety of the public (the “secondary grounds”); or
3. To maintain confidence in the administration of justice (the “tertiary grounds”).^{Footnote 6}

Crown counsel must consider each of these grounds in arriving at a decision to consent to release or seek detention. All three grounds are equally capable of justifying a detention order. It is important to note that the tertiary ground is not a residual ground for use only where the primary and secondary grounds are not made out. Nor is this ground limited to exceptional circumstances. “It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.”^{Footnote 7}

Section 515(6) of the Code puts the onus on an accused to justify pre-trial release, if charged with certain offences or if certain conditions are met. Since this reverse onus amounts to a presumption of detention, it is an exception to the basic entitlement to bail contained in s. 11(e) of the Charter.^{Footnote 8} In these cases, there is just cause to deny bail where the accused fails to prove - on a balance of probabilities - that their detention is not justified on the three grounds for detention. These rules reflect Parliament’s intention to make bail more difficult to obtain in certain circumstances.^{Footnote 9}

2.2 The Right to Reasonable Bail

Every accused has the right to reasonable bail.^{Footnote 10} Reasonable bail refers to the terms of bail, the quantum of any monetary amount, and the restrictions or conditions imposed. When seeking to impose conditions on bail, Crown counsel must be mindful of two principles: the principle of restraint and the principle of review.

In applying the principle of restraint, Crown counsel must only seek conditions that are:

• Clearly articulated;
• Minimal in number;
• Necessary;
• Reasonable;
• The least onerous in the circumstances; and
• Sufficiently linked to the specific risks posed by the accused with regard to the grounds for detention in s. 515(10) of the Code.^{Footnote 11}

Bail conditions must be tailored to the individual risks posed by the accused,^{Footnote 12} designed to address specific risks regarding the grounds for detention and imposed only to the extent necessary.^{Footnote 13}

The principle of review requires the Crown to “carefully scrutinize bail conditions at the release stage whether the bail is contested or is on consent.”^{Footnote 14} This means that Crown counsel should consider the necessity of all bail conditions, even those that the accused has suggested or consented to. Crown counsel must also review the bail conditions throughout the course of a prosecution to determine their continued necessity.

The principles of restraint and review are there to ensure the bail system operates fairly for everyone. When the bail system permits the imposition of unnecessary and unreasonable bail conditions, existing inequalities in the justice system tend to become exacerbated. This is because overrepresented and marginalized groups are disproportionately subjected to these conditions and face more breach of bail charges as a result.^{Footnote 15}

For more on bail conditions, see section 4 of this Guideline.

3. The Decision to Oppose Bail

As explained earlier, the principle of restraint requires Crown counsel to seek the least onerous form of release that may be appropriate in the circumstances. This means that a release plan, with or without conditions, should be favoured over detention if the plan addresses the statutory grounds for detention.

Regardless of onus, Crown counsel must not seek detention in the following circumstances:

1. Where the decision to prosecute test has not been met. For more on the factors to consider, see Guideline 2.3 “The Decision to Prosecute”. If Crown counsel determines that there is no reasonable prospect of conviction or it is not in the public interest to prosecute the case, the charges must be withdrawn or stayed.
2. Where a custodial sentence is not appropriate, after considering all the known facts at the time.
3. The length of potential sentence is shorter than the time the accused would be in custody pending trial. Only in exceptional circumstances tied to the primary or secondary grounds can Crown counsel seek detention where the sentence is likely to expire before trial. If detention is ordered, Crown counsel must regularly and diligently review the situation to determine if new circumstances justify taking steps to release the accused.

Where the accused is charged with an offence against the administration of justice, such as a breach of a court order, Crown counsel must refer to specific guidance contained in Guideline 2.3 “The Decision to Prosecute”. That guideline sets out the circumstances in which Crown counsel can proceed with administration of justice offences. If it is appropriate to proceed with the prosecution, Crown counsel must refer to Guideline 3.20 “Judicial Referral Hearings” and consider whether to pursue a Judicial Referral Hearing if available in their jurisdiction. Judicial Referral Hearings must be strongly considered where the offence has not caused a victim physical or emotional harm, property damage, or economic loss.^{Footnote 16}

In cases that involve a spouse or intimate partner, Crown counsel must be conscious of the potential increased risk of harm (including physical, emotional, or psychological) on the victim. Crown counsel must seek a detention order where they consider it necessary for the safety and security of the victim or the public. For more on this issue, refer to Guideline 5.5 “Domestic Violence”.

3.1 Crown Onus Offences

Where the onus is on the Crown to justify detention, Crown counsel must not oppose bail unless there is just cause to deny bail under at least one of the three grounds for detention.

When deciding whether to seek detention for a Crown onus office, Crown counsel must recognize the impact that a detention order would have on an accused. Access to disclosure and support services are limited in custody, and an accused person detained at the bail stage may feel pressure to plead guilty. Crown counsel must not take this decision lightly. The decision to seek detention must only be made where Crown counsel have substantial concerns, based on the circumstances of the particular file, on one or more of the three grounds for detention.

3.2 Reverse Onus Offences

Where the onus is on the accused, there is a presumption in favour of detention. Reverse onus offences reflect the reality that repeated acts of violence and serious offences committed with firearms or other weapons, have a harmful impact on victims and communities. Such offences undermine public safety and confidence in the criminal justice system. Therefore, if Crown counsel develops a genuine concern about public safety based on the information available to them, and these concerns are not addressed by the proposed release plan, the accused must be put to their onus at the bail hearing.

It is important to also note that the principle of restraint continues to apply when a person is charged with a reverse onus offence. This means that Crown counsel must not routinely ask the accused to show cause by way of a bail hearing because they are charged with a reverse onus offence.

For clarity, the reverse onus provisions do not operate to deny bail for all persons charged with these offences, only those persons who are unable to demonstrate that detention is not justified having regard to the grounds for detention. Therefore, Crown counsel must consider the release plan, and any other relevant information offered by the accused, to determine whether that plan alleviates concerns based on the statutory grounds for detention.

3.2.1 Conditional Reverse Onus Provisions

Some offences only become reverse onus when certain conditions are met. Section 515(6)(b.1) makes intimate partner violence a reverse-onus offence if the accused has been previously convicted or discharged for similar offences. Section 515(6)(b.2) makes serious violent offences involving a weapon a reverse-onus offence if the accused has been previously convicted within five years of specific violent offences.^{Footnote 17}

Crown counsel must pay special attention to the presence of these conditions when deciding whether to oppose bail. While the decision to oppose bail should always be made on the totality of the circumstances, the presence of one or more of the conditions in s. 515(6) should generally favour opposing bail.

3.2.2 Offence-Based Reverse Onus Provisions

Parliament has enumerated several offences (including drug and firearm offences) as reverse-onus in s. 515(6) of the Code.

As noted above, Crown counsel must consider the circumstances surrounding the offence, the circumstances of the accused, and the proposed release plan before asking the accused to show cause. Each case must be considered individually. For example, an accused who is alleged to be marginally involved in a drug-trafficking scheme or is alleged to have trafficked a small amount of drugs may more easily meet their onus.^{Footnote 18}

Only after considering all the relevant information, Crown counsel must decide whether it is appropriate to propose a consent release.

3.3 Irrelevant Criteria

In exercising discretion, Crown counsel must not be influenced by any of the following considerations:

• Opposing release or seeking conditions to increase the likelihood of the accused pleading guilty or to expedite the judicial process.
• Making a decision influenced by bias or discrimination based on race, nationality, ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, socio-economic status, or political association.^{Footnote 19}
• Opposing bail to permit the police or an investigative agency to complete their investigation. For guidance on seeking adjournments at a bail hearing, see section 5.1.1 below.
• Opposing bail to prevent further substance use.
• Making a decision to advance one’s own personal or professional objectives, or those of the investigative agencies or members.

3.4 Background and Systemic Factors

The PPSC has made a commitment to not exacerbate the problem of overrepresentation of historically marginalized groups, including First Nations, Métis, Inuit, and Black accused persons.^{Footnote 20} Crown counsel must be aware of the fact of overrepresentation, and educate themselves about the specific overrepresented groups in their local jurisdiction.

Seeking the detention of a person who is a member of any marginalized or overrepresented group will be an exceptional measure in cases where the evidence does not point to a serious concern that their release will endanger the safety and security of the public or a victim.

Sections 493.2 and 515(13.1) of the Criminal Code require that particular attention be given to the circumstances of First Nations, Métis and Inuit accused who are more likely to be denied bail and are overrepresented in the remand population.^{Footnote 21}

Crown counsel must consider all available information about background or systemic factors that played a role in the accused’s criminal record or their current charges. Crown counsel must be open to receiving informal information from the accused about their background, since a formal Gladue report or Impact of Race and Culture Assessment (IRCA) may not be available at the bail stage. Such informal information may include a Gladue report or IRCA that was used by the accused in a previous case.

Seemingly neutral factors that might otherwise influence the decision to seek detention, must be carefully scrutinized. Unemployment, lack of stability in housing, or sureties without significant means may simply be reflective of socioeconomic conditions in a given community. These factors are not relevant to the assessment of the suitability of a release plan. An accused’s lack of access to accommodation, resources, networks or supports must not prevent them from obtaining bail if they are otherwise releasable, since such support systems are not available to everyone.

Crown counsel must balance these considerations carefully where the victim may also be overrepresented as victims of violence in Canada.

3.5 Consultation

Crown counsel must make reasonable efforts to gather relevant information from the accused before deciding whether to seek detention or concede that the accused has met their onus. Crown counsel must be receptive to any trustworthy or credible information.

Where appropriate, Crown counsel should obtain information from a victim or witness (through Crown Witness Coordinators) about any safety concerns that can be put before the court. This is particularly important in situations where the alleged conduct reflected in the charges may imply a potential threat to the victim or witness.

Information from victims and witnesses may also assist in crafting release conditions necessary to address the secondary ground. This can be important in small or remote communities, where public amenities and alternative housing arrangements are limited. In these communities, bail conditions may need to be explicit about the manner in which potentially threatening interactions will be prevented.

Section 515(12) provides that even when an accused has been detained, the justice may order that the accused abstain from communication with a victim or witness or any other person named in the order. Section 515(13) requires the justice to specifically state that they have considered the safety and security of every victim of the offence, and the security of the community.

Crown counsel must ensure that victims and witnesses are informed about the custodial status of the accused following the bail hearing. Section 515(14) requires the justice to provide a copy of the order to any victim of the offence upon request. For more on this, see Directive 5.6 “Victims of Crime”.

Crown counsel must also communicate with the police to ensure all relevant information that may impact the decision whether to oppose bail has been provided. Crown counsel are also expected to consult, if possible, with the relevant investigative agency regarding the release or detention of the accused, particularly regarding safety concerns for victims and witnesses. In all cases, Crown counsel’s position on bail must be made independently from the police.

4. Conditions of Release

Criminal charges for violating bail conditions are common. Many historically marginalized groups are set up for a revolving door of charges because unnecessary bail conditions are imposed on them. Therefore, as stated under section 2.2 of this Guideline, Crown counsel must be diligent to ensure that conditions are tailored to the specific risks posed by the accused having regard to the grounds for detention in s. 515(10) of the Code.^{Footnote 22}

4.1 Least Onerous Conditions in the Circumstances

Crown counsel must take into account the presumption of innocence before imposing any bail condition, and only seek conditions that are connected to the purpose of bail. Conditions that unjustifiably or unreasonably restrict the liberty of the accused must be avoided. For example, rigid curfews may interfere with employment, family gatherings, and daily life. Crown counsel must consider the impact any condition may have on an accused before seeking them.

Sections 515(2)(a) to (e) of the Code set out the increasingly restrictive types of release conditions available for the accused. Each provision “involves more burdensome conditions of release for the accused than the one before it.”^{Footnote 23} When read in combination with section 515(2.01), these provisions enshrine the ladder principle. By virtue of section 515(2.01), a justice shall not make an order for a more onerous form of release than the Crown has demonstrated is necessary.

It is important to note that the ladder principle does not apply to reverse onus situations.^{Footnote 24} However, the accused is still entitled to reasonable bail.^{Footnote 25} In practice, this means any conditions imposed on the accused must be sufficiently linked to concerns around flight risk, public safety or the administration of justice. The conditions must also not be more onerous than necessary.^{Footnote 26}

4.2 Guidance on Specific Bail Conditions

Crown counsel should not seek conditions that are difficult for an accused to meet unless the conditions are necessary to address the primary or secondary grounds for detention.

The following conditions should only be sought if they are required to protect a victim or the community:

Abstinence conditions and prohibitions on the possession of drug paraphernalia

Individuals with a substance-use disorder will not benefit from such conditions because they set the person up for a subsequent breach charge. Further, abstinence conditions tend to disproportionately affect marginalized groups.^{Footnote 27} As indicated in Section 4.4 of this Guideline, these types of conditions can also exacerbate the risk of overdose following the accused’s release.

Crown counsel must recognize the impact of imposing these conditions and consider other options. For example, in order to ensure the safety of the public or victims, it may be appropriate to seek a condition that an accused not have contact with a victim or attend a location while under the influence of alcohol or controlled substance. For bail conditions imposed on those participating in Drug Treatment Court, Crown counsel must refer to Guideline 6.1 “Drug Treatment Courts”.

Rehabilitation conditions

Conditions intended to rehabilitate/treat an offender (e.g. “attend school” or “attend counselling”) or that require the accused to follow the rules of a treatment facility are inappropriate and tend to disproportionately impact marginalized accused.^{Footnote 28} These conditions may also create situations where accused persons do not know what rules they need to follow in order to meet their bail requirements.^{Footnote 29}

"Red zone" or "no-go" conditions

Broad area restrictions risk isolating people from essential services or their support systems. They should be avoided whenever possible.^{Footnote 30} If Crown counsel determines that an area restriction is necessary to protect a victim or the public, the condition must be carefully tailored to the specific offence and to a specific location. Crown counsel must also ensure the restriction does not adversely impact the accused’s ability to access services, supports, or employment.

The following conditions should be avoided:

Keep the peace and be of good behaviour

This condition inevitably leads to additional, unnecessary charges.^{Footnote 31} Although it may be an appropriate condition for peace bonds and probation orders, its breadth means it violates the principle of restraint and has a tenuous link to any of the three grounds to deny bail.^{Footnote 32}

Conditions that impact additional Charter rights

Crown counsel should avoid seeking any condition that subjects an accused to a lower standard for a search than would be otherwise required under the Charter.^{Footnote 33}

It bears repeating that Crown counsel must never seek to impose conditions for the purpose of punishing the accused or for the purpose of reforming the accused.^{Footnote 34} Doing either is not in keeping with the presumption of innocence.

4.3 Conditions to Protect Victims, Witnesses and Justice System Participants

If an accused will be released on bail, Crown counsel must consider specific conditions that will ensure the safety and security of any victim, witness, or justice system participant. Sections 515(4.2) and (4.3) provide for specific orders for the protection of any person including victims, witnesses or justice system participants in relation to certain offences identified in those sections. See also the PPSC Deskbook for more detailed guidance: paragraph 3.2 “Judicial Interim Release” in Guideline 5.5 “Domestic Violence”, and paragraph 4.4 “Bail Hearings” in Directive 5.6 “Victims of Crime.”

4.4 Surety Releases

Crown counsel must only seek a surety release in exceptional circumstances. A surety release is one of the most onerous forms of release and must not be an automatic default or starting position.^{Footnote 35} In keeping with the ladder principle, the less onerous forms of release referred to in s. 515(2) must be considered and rejected before seeking a surety release.^{Footnote 36}

Many accused will not be able to find a surety.^{Footnote 37} Even those who are able to find a surety often have difficulty doing so while in custody. These situations can prolong incarceration or prevent the release of an accused who does not require a detention order. Therefore, if a surety is required, Crown counsel should not routinely require them to be present in court.

While certain jurisdictions have their own practices, the presence of a surety in court is not a prerequisite to release. For many sureties, the process is disruptive, sometimes requiring that they miss work, school, or other responsibilities to attend court. Crown counsel should consider whether there is an alternative to testimony from the surety to assist the court in determining whether the use of a surety, and a particular person as a surety, is appropriate.

Crown counsel must take appropriate steps to satisfy themselves that the proposed surety is suitable and understands their role.^{Footnote 38} While it is not the Crown’s role to provide legal advice to the proposed surety, Crown counsel may consider providing them with government-supplied information on the role of a surety.

Crown counsel’s decision on the suitability of a surety must be free of any conscious and unconscious biases, institutional biases, and stereotypes. Both becoming aware of these biases, and taking active steps to set them aside, are necessary to ensure that conclusions made are objective and fair. Providing reasons is one way to ensure that decisions are made free of bias. Therefore, if a proposed surety is not suitable to the Crown, Crown counsel must convey to the accused the reasons why the surety is not suitable. Crown counsel should also advise what would make a suitable surety in the particular case to determine if such a surety is available to the accused.

4.5 Cash Bails

Cash bails may have the effect of denying bail to those without means. They may also have the effect of leaving the perception that those with significant means may more easily be granted bail. Both of these premises are problematic.^{Footnote 39}

The Criminal Code permits a cash bail in any case. Where a cash bail is combined with a surety, however, sections 515(2)(d) and (e) only permit such an order where the accused is not ordinarily resident within 200 kilometres of the location of the arrest.

Despite these provisions, cash bails are discouraged and should only be used in exceptional cases. In any case where Crown counsel determines that a cash bail is necessary, the effect of such an order must not result in disadvantaging those with limited financial means. These same principles apply when the accused is asked to pledge an amount of money to secure their release.

4.6 The Opioid Crisis

The number of opioid overdoses and deaths has caused a public health emergency in many jurisdictions. Crown counsel must be mindful of bail conditions that may increase the likelihood of short-term detention, thereby contributing to the risk of opioid overdoses. The short-term detention of an accused with a substance-use disorder may lower their tolerance for opioid use, putting them at heightened risk of an overdose upon release from custody.

Crown counsel must also be mindful of the risks posed for an accused with a substance-use disorder when they begin a period of custody because a lack of access to substances may have negative health impacts.

To avoid exacerbating this public health emergency, Crown counsel must avoid putting an accused in the position where they are likely to violate their bail due to a substance-use disorder. This can happen if Crown counsel seeks abstinence conditions or prohibitions against the possession of drug paraphernalia. As set out earlier, Crown counsel must not seek such conditions with an accused who has a substance use disorder. If such conditions have been imposed, Crown counsel must consider seeking a bail variation.

The determination of whether an individual has a substance use disorder can, in some cases, be inferred from the information provided by the investigating authority. This determination may also be based upon reliable information provided by the accused.

Where such conditions have been imposed, and breach charges or new charges are proposed, Crown counsel must take steps to have the new charges dealt with on an out-of-custody basis unless public safety concerns require detention. For example, Crown counsel can refer the accused to Drug Treatment Court, resort to the judicial hearing regime, or use alternative measures.

5. The Bail Hearing

In preparing for and conducting a bail hearing, Crown counsel should keep the following considerations in mind.

5.1 The Right to a Timely Bail Hearing

The right to reasonable bail includes the right to a timely bail hearing. If an accused is made to wait for their bail hearing for an unreasonably prolonged time, this can breach their right to reasonable bail.^{Footnote 40} Therefore, Crown counsel must ensure that the bail hearing proceeds expeditiously and as effectively as possible.

The Criminal Code requires a person who is arrested to be brought before a justice within 24 hours of arrest, or as soon as reasonably possible. Crown counsel must ensure that initial appearance proceeds within 24 hours, and that if the accused wants to run a bail hearing, the Crown is ready to proceed.

5.1.1 Seeking Adjournments

Section 516(1) of the Criminal Code permits the Crown to seek an adjournment for up to three clear days. The accused must consent to a longer adjournment.

Crown counsel must only seek an adjournment for reasons based on good faith and informed by the requirement for a just cause analysis pursuant to s. 515 of the Code.^{Footnote 41} Where a key piece of information is missing, or a key event is pending, it is legitimate to consider whether the accused may interfere with the investigation by destroying evidence, tampering with witnesses, or otherwise interfering with the administration of justice should they be released.^{Footnote 42}

Crown counsel must never request adjournments for administrative convenience or to pursue evidence that will not have a bearing on the issues relevant to bail.

If an adjournment is sought, it must be for as short a time as necessary. Crown counsel must put the reasons for the request on the record.

5.1.2 Lengthy Bail Hearings and Delay

Crown counsel must be mindful of inherent delays that may occur when scheduling lengthy bail hearings. For example, some jurisdictions may require a date to be set in the future when a bail hearing will require a full day or more. To avoid unnecessary delay, Crown counsel must consider, based on the circumstances of the offence and the accused, whether it is possible to narrow the issues and reduce the amount of court time necessary to conduct the hearing.

For example, Crown counsel may seek admissions on non-controversial matters, limit the evidence tendered, or revise the synopsis into a concise summary.

5.2 Credible or Trustworthy Evidence

Section 518(1)(e) of the Code states that the judicial officer hearing a bail matter may receive evidence considered “credible or trustworthy.”^{Footnote 43} Depending on the jurisdiction, the Crown may read in a synopsis or present a witness for examination.

In either case, Crown counsel must ensure that the evidence they rely upon to make important decisions about bail, and any evidence presented at a bail hearing, is sufficiently credible and trustworthy. Crown counsel must not lead evidence they know is unavailable or unreliable.

5.3 Cross-Examination of Sureties

Crown counsel, through the respectful and vigorous questioning of a surety, may assist the court in determining whether the proposed surety can adequately address a particular ground of detention that is an impediment to the release of the accused.

Before cross-examination, Crown counsel must take steps to identify and set aside any assumptions based on stereotypes or bias (whether conscious or not), about the surety or the nature of the relationship between the surety and the accused. Bias, prejudice, or stereotypes must never play any role in determining the adequacy of a surety.

6. Bail Forfeiture (or Estreatment)

When an accused breaches the conditions of their bail, they (or their sureties) may lose money that was pledged to secure their release. Part XXV of the Criminal Code, “Effect and Enforcement of Undertakings, Release Orders and Recognizances”, sets out the legal and procedural framework for the enforcement of recognizances, including forfeiture.^{Footnote 44} The test at a forfeiture hearing is not rigid. The main principle is to preserve the “moral pressure” or the “pull of bail” to ensure the effectiveness of the bail system.^{Footnote 45}

In the event of a breach, Crown counsel must decide whether to pursue forfeiture proceedings. Not every breach will warrant forfeiture. For example, it may be appropriate to seek estreatment in cases where the accused absconded and remains at large. It may also be appropriate to seek estreatment where the accused fails to attend their trial.

In deciding whether to pursue forfeiture proceedings, Crown counsel must consider the following non-exhaustive factors:

• the need to protect the integrity of the justice system;
• the seriousness of the underlying charge;
• the seriousness of the breach;
• the surety’s diligence in supervising the accused;
• the degree of fault of any surety in the accused’s failure to comply with the order, including any efforts made by that surety to render the accused;
• change in financial circumstances on the part of the surety;
• whether forfeiture is practical in the circumstances of the particular case, including the surety’s ability to pay and the effects of forfeiture on them.^{Footnote 46}