Newfoundland Bail

Bail in Newfoundland

In Newfoundland, anyone who is charged with an offence and awaiting trial or a sentence is considered to be 'on bail' regardless of whether or not they have had a bail hearing.

In Newfoundland, anyone who is charged with an offence and awaiting trial or a sentence is considered to be 'on bail' regardless of whether or not they have had a bail hearing.

There are several types of releases that are utilized in Canada, depending on the nature of the offence and the circumstances of the accused who allegedly committed the offence. For example, a first time offender who commits a moderately serious offence may be released without the need for a bail hearing, whereas a repeat offender who allegedly committed a similar offence will likely be held for a bail hearing.

The most common way for an accused to be released after having been charged is by a Promise to Appear. This is typically given to the accused at the scene of an offence and just indicates that they need to appear at court to answer to the charges at a later specified date. At that date the charges will be formally read by a judge and a return date will be set to enter a plea. There are no conditions that affect an accused’s liberty when issued a Promise to Appear.

If the crime is more serious, the accused may be taken to the police station for questioning. In this scenario they can still be released by a Promise to Appear. However, more typically in this situation, again depending on the seriousness of the crime and the circumstances of the offender, the accused may be released on a Police Undertaking. The Police Undertaking contains conditions that will affect an accused’s liberty but are linked to the offence itself and are supposed to prevent the accused from committing further offences while they are on bail. These conditions can include no contact with the victim or co-accused, to remain away from certain locations, not to partake in certain activities, not to consume alcohol and to abide by a curfew.

If the police are worried about releasing an accused on either a Promise to Appear or a Police Undertaking, they will hold them for court for a Show Cause hearing. In this situation an accused must be brought to court within 24 hours of their arrest. At this time the Crown Prosecutor will have the option to either agree to release the accused on bail with conditions or to hold the person for a bail hearing. If the Crown decides that they will consent to release the accused they will usually have discussions with the accused’s lawyer about a release plan, which will be similar to a police undertaking and will include conditions linked to the offence intended to prevent the accused from re-offending. Additionally, in this situation, the accused may propose a surety, who will essentially supervise them in the community. The surety will normally pledge money or assets so that if the accused breaches the conditions imposed, the court will be confident that the surety will report them to police so that they do not lose their money or assets.

If the Crown isn’t willing to consent to an accused’s release then a bail hearing will be held unless the accused consents to be remanded into custody. The bail hearing procedure begins with the Crown presenting an overview of their case, usually by just reading the police’s summary of the case, although sometimes an officer will testify in more serious cases. In most cases, the accused will then want to call evidence outlining their release plan, confirm that they would attend court, identify their prosed surety (if they have one), pledge that they would listen to the surety and all in all attempt to satisfy the court that they would follow their conditions and not re-offend. The Crown then has the opportunity to cross-examine the accused witnesses. After the accused’s evidence is called, both the Crown and Defence Counsel would usually make submissions to the Judge as to why the person should or shouldn't be released. An accused will have to satisfy all three grounds of bail from s. 515 (10) of the Criminal Code to be released. If the Crown can prove that the accused will not satisfy even one of these grounds, the accused will not be released.

S. 515 (10) sets out the three grounds of bail as follows:
For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

  • (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
  • (b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
  • (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case; 

(ii) the gravity of the offence; 

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

If the Crown consents to release the accused or after a bail hearing the Judge decides to release the accused, the accused will be released on a Recognizance.

It is important to remember that Breaching bail conditions is a separate charge under the Criminal Code. If an accused breaches their conditions from either a Promise to Appear, Undertaking or Recognizance, they will be charged with a breach and will most likely be held for a bail hearing. In this situation there is also a very realistic chance that their bail will be revoked. Lastly, if the accused or a surety has either put down money or pledged money to secure the release the accused then that money could eventually be forfeited to the state.

If you have any questions about bail or any other legal issue please contact me or another one of our lawyers in St. John’s, Newfoundland.

-Stephen Orr

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