Depending on several factors (such as the nature of the alleged offence, the likelihood that the accused will attend court and whether or not s/he will pose a danger to the public or complainant), the police may decide to not release the accused. In this situation, the police must, in most cases, bring the accused before a court within 24 hours for a bail hearing.
A bail hearing is a proceeding in which the court will make a determination as to whether or not the accused should be released, pending the completion of his/her criminal case. In the majority of cases, the burden is on the Crown to demonstrate, on a balance of probabilities, why the accused’s detention is justified. In certain cases, the burden shifts to the accused person to show cause why his/her detention is not justifiable (this is called a “reverse-onus” bail hearing, and may arise with certain prescribed offences, such as murder, as well as in certain prescribed situations). In either scenario, the following are the factors that must be taken into account when assessing whether or not detention is justifiable:
1) Is detention necessary in order to ensure the accused attends court (the “primary ground”);
2) Is detention necessary for the protection and safety of the public, including any substantial likelihood that the accused, if released, will commit further criminal offences (the “secondary ground”); and
3) Is detention necessary to preserve confidence in the administration of justice (the “tertiary ground”)