When someone gets charged with a criminal offence, the matter becomes police and government business. An alleged victim has no power to drop the charges against you. Once you are arrested, the Police will process you and decide whether they think you are a flight risk or a risk to another individual or the public at large. The police will also consider the weight of the evidence against you. Based mainly on these factors, the police will decide whether to release you with a “Promise to Appear” for future court, or hold you for a bail hearing to let the Crown or Court decide if you should be released on a “Recognizance”. The decision to release you is out of the alleged victim’s control. In recent years there have been decisions from the Supreme court of Canada that hold that alleged first time offenders for many types of charges, generally speaking, should be released on a promised to appear, or a consent release at court.
If you are not released from the police station and have to go to court, the Crown must provide you with a bail hearing within 72 hours of your arrest.
A Surety is someone who is willing to sign on your behalf, post some money for you (no deposit down in many cases), supervise you, ensure that you do not commit any offences when you’re out on bail, ensure that you comply with your release (i.e., curfew and/or house arrest) and reside with you in some cases. Ideally, a Surety will have no criminal record, have some assets (positive net worth) and not be implicated in the offence you are charged with. In a contested bail hearing, the test is whether you are a flight risk (whether you will come to court when required to do so), and/or if released, you will pose a threat to any individual or the public at large. There is a third ground that the Crown infrequently refers to in order to seek one’s detention – the tertiary ground. This is a rare ground that calls for one’s detention based on the severity of the offence and the public’s outcry should you be released in the public until your trial.
Sureties need to be aware they are guaranteeing to do all in their power to supervise the Accused when released until his/her day of trial. Should the Surety ever become aware that the Accused has not followed through with a term of his/her release, the Surety must take steps to notify authorities, turn the Accused back into custody, including appearing before a Justice of the Peace and revoking the bail immediately. Should a Surety not turn in the Accused, despite his/her knowledge of that breach, he/she will be liable for the amount of money he/she posted in the bail, and may jeopardize any future attempts to become a Surety for another person. Keeping all this in mind, everyone charged with a criminal offence has the right to not be denied reasonable bail with reasonable release conditions – it is a guaranteed right. Factors that make release more difficult and complex include the nature of the charges, any prior criminal record of the accused, any breaches or existing criminal charges and the quality of the release plan, to name a few.