What Is Bail in Ontario & Why Can Someone Be Released Before Trial

When someone is charged with a criminal offence, it’s a common assumption that they must remain in custody until their case is finished. In Canada, that is not how bail works.

In Ontario, bail is the court’s process for deciding whether an accused person is released or detained while their case moves through the justice system. At this stage, there has been no finding of guilt, only an allegation.

The Canadian Charter of Rights and Freedoms protects the right not to be denied reasonable bail without just cause. As a result, release is the starting point, not detention.

What Bail Actually Means

Bail (also called judicial interim release) is governed by section 515 of the Criminal Code of Canada.

The law begins with a presumption of release. This means the Crown prosecutor must justify why detention is necessary or why strict release conditions are required.

Bail is not simply “released or detained.” An accused person may be:

• Released without conditions
• Released with conditions (such as reporting, no-contact provisions, or residence requirements)
• Detained in custody if the legal test for detention is met

Why Someone Can Be Released Before Trial

A criminal charge is not proof of guilt.

Bail exists because pre-trial detention is not meant to be a punishment. It is a limited legal measure that must be justified under the Criminal Code.

At a bail hearing, the court focuses on if detention is necessary before trial.

If detention is not justified under the law, the court must order release.

When a Court Can Refuse Bail

Under section 515(10) of the Criminal Code, bail can only be denied on three specific grounds:

1. Attendance in Court

To ensure that the accused will return for future court appearances.

2. Public Safety

To protect the public, including victims and witnesses, from further harm or risk.

3. Confidence in the Administration of Justice

To maintain public confidence in the justice system. This includes factors such as

• The strength of the Crown’s case
• The seriousness of the offence
• The circumstances surrounding the alleged conduct
• The potential sentence if convicted

These are the only legal grounds for detention.

What “Reverse Onus” Means

In most cases, the Crown must show why an accused should be detained. This is known as the primary onus.

However, in certain situations, the burden shifts to the accused. This is called reverse onus.

In a reverse onus case, the accused must demonstrate why release is justified.

Reverse onus may apply in cases involving the following:

• Specific firearm offences
• Some repeat violent offences
• Intimate partner violence offences

Importantly, reverse onus does not create new grounds for detention. It only changes who must prove whether release is appropriate.

What Judges Consider at a Bail Hearing

While the legal test is based on the three grounds above, judges also consider other practical factors, including:

• The seriousness of the allegations
• The accused’s criminal record, especially violence or prior breaches
• The risk of accused failing to attend court
• Risk to public safety
• The strength of the proposed release plan
• Whether reverse onus applies

In practice, bail decisions often turn on the following:

• The credibility and structure of the release plan
• The accused’s history with court orders
• The specific risks identified by the Crown

This is why two people facing similar charges can receive very different bail outcomes.

Why Bail Does Not Decide the Case

One of the most common misconceptions is that being granted bail means that the case is weak.

That is not correct, and a person can still be released on bail if:

• Be convicted at trial
• Plead guilty
• Receive a custodial sentence

“Bail” simply means the court was not satisfied that detention was legally justified at that time of the case or that the accused fell into reverse onus situation.

Bail is about temporary release, not guilt or innocence.

Recent Bail Developments in Ontario

While the core bail framework has not changed, two developments are noteworthy:

1. Expanded Reverse Onus Rules

Federal amendments have expanded the reverse onus that now also includes

• Specific firearm-related offences
• Some repeated intimate partner violence cases
• Violent offences that involve weapons

2. Ontario Bail Practice Direction

The Ontario Court of Justice introduced a new Bail Practice Direction effective June 1, 2026, that now also addresses procedures

• Timelines for hearings
• Identification of complex bail matters
• Filing requirements for bail materials

This update does not change the legal test for bail.

How Foote Law Can Help

Foote Law assists clients with:

• Bail strategy and early legal advice
• Developing strong and realistic release plans
• Responding to Crown detention positions
• Representation at bail hearings

Because bail decisions are often made under tight timelines, preparation and structure can make a significant difference in the outcome.

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