Frequently Asked Questions

Section 11(b) of the Charter of Rights and Freedoms guarantees individuals charged with offences (including non-criminal offences, such as a traffic ticket) the right to be tried within a reasonable time. If a matter has taken too long to get to the trial stage, then the accused can bring an application pursuant to section 11(b) to have his/her charge(s) stayed. Factors that a court will take into account when determining whether an application under section 11(b) should be granted include the following:

1) the length of delay;

2) the reasons for delay;

3) waiver of time periods; and

4) prejudice to the accused

Unless a criminal lawyer has specifically advised you to participate, you can, and should, politely decline to take the test. The test results, as well as the refusal to take the test, are inadmissible in court as evidence. Police tend to rely on Polygraph tests as way of getting a confession, or at least an admission that assists the prosecution, from the accused, but the results have no value as evidence.

It is a criminal offence to Fail to Appear at either your fingerprint or court date.

If you have been arrested, the police have the power, for many offences, to release you from the police station. In doing so, they may ask you to sign a form which is essentially an agreement into which you enter, stating that you will attend court on a specific date. If you do not attend court (or for fingerprinting, as stipulated on the form), you may be charged with a further criminal offence of Failure to Attend Court (or Fingerprinting).

A bail hearing is one of the most vital steps in the criminal court process, given the negative consequences that result when an individual is detained pending his/her trial (see “FAQs > What is a bail (“show cause”) hearing?” for the summary of these consequences). Fortunately, pursuant to section 520 of the Criminal Code of Canada, a Judge (of the Superior Court of Justice) has the power to review a detention order of a Justice of the Peace (of the Ontario Court of Justice). This is known as a bail review application. The accused, through a lawyer, will need to put together certain written material to file with the court for the review to take place. The accused, upon filing this material, can have his/her matter brought into court for a hearing on at least two clear days notice. Once the matter is properly before the court, the Crown may agree to release the accused on certain conditions for a variety of reasons, without actually proceeding with a hearing in court (for example, if the Crown sees that the Justice of the Peace who detained the accused was clearly in error). If the Crown opposes the accused’s release, the accused will have to demonstrate either that there has been a material change in circumstances since s/he was ordered detained, or that the Justice of the Peace who ordered his/her detention made an error in law.

Generally speaking, the first appearance in Criminal Court is for administrative purposes only. At the first appearance, you can expect to receive initial disclosure from the Crown Attorney. “Disclosure” is the evidence which the police have collected in support of the charges against you. The Crown Attorney is required to provide you this disclosure to ensure you are aware of the case against you and so that you can prepare a defence.

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”)

Charter of Rights and Freedoms and Bail

Section 11(e) of the Canadian Charter of Rights and Freedoms protects accuseds rights at the bail stage, by affording them the right not to be denied reasonable bail without just cause. The Supreme Court of Canada has interpreted the words “just cause” to mean that bail can be denied only in a narrow set of circumstances, and only where the denial is necessary to promote the proper functioning of the bail system.


There are various forms of release that a court may order at a bail hearing, including release by way of an undertaking, recognizance without sureties and a recognizance with one or more sureties. In many cases, courts require that a surety sign for the release of the accused. A surety is an individual (usually a family member or close friend) who promises to the court, on oath, that s/he will forfeit a specified sum of money to the Crown if the accused breaches one or more of conditions listed on the recognizance of bail.

The characteristics of a very strong surety usually consist of the following:

  • Lack of criminal record;
  • Good character;
  • Financial security;
  • Willing and able to supervise the accused while s/he is out on bail;
  • Willing to assist with ensuring the accused attends court when required;
  • Willing to report to the police any perceived violations by the accused of one or more of his/her bail conditions

A surety acts as a jailer in the community, and is there to ensure that the accused abides by his/her conditions of release. If an accused breaches one or more of his/her bail conditions, then a forfeiture hearing may be held with respect to the amount of money that the supervising surety pledged to the court. Forfeiture is not automatic upon the breach of a bail condition, and a court would look into factors such the degree (if any) to which the surety was at fault in relation to the violation of the bail condition(s).

Significance of Securing an Accused’s Release at a Bail Hearing

A bail hearing is one of the most important steps in criminal proceedings, given the negative impact of pre-trial detention. Pre-trial detention can lead to one or more of the following in relation to an accused, as well as of his/her family:

  • Personal or individual costs, including psychological stress on the accused, emotional and financial stress of family members and the loss of employment by the accused;
  • Negative impact on the accused’s ability to defend the charges s/he is facing, including there being a greater difficulty in finding a lawyer, communicating with lawyer after one is found, finding evidence to support his/her case and taking steps that would make a good impression on the court (e.g. finding a job);
  • Increased likelihood of conviction and greater severity of sentence; and
  • Pressure to plead guilty, even if the accused is actually innocent For these reasons, it is crucial that an accused has representation at his/her bail hearing, and that significant preparation goes into the hearing.