Bail: What is it, and How is COVID-19 Affecting Procedures and People?

In response to COVID-19, governments across Canada are implementing changes that include stay-at-home orders, mandatory mask-wearing, and physical distancing measures. The Courts have also been forced to respond to the challenges posed by the pandemic, which have impacted the Criminal Justice System.

One of the realities Courts must evaluate is the process of determining bail during COVID-19. As a result of the increased COVID-19 case counts and outbreaks, Courts have altered their pre-trial custody procedures.

What is Bail?

“Bail”, formally known as Judicial Interim Release, is a Court Order that allows an individual to remain in the community while awaiting trial. Many people who are arrested are released shortly afterwards by the police, either at the scene or from the police station after being booked. If the police detain a person in custody after arrest, they must be brought before the Court within 24 hours. Normally what will happen next is a bail hearing. A bail hearing is not a trial; the judge will not determine if the person is guilty or not guilty, rather, they will only decide if the person should be released from custody or held in jail until their trial.

When determining if an individual should be granted bail, the Court will consider three grounds for detention. The primary ground considers whether the individual, if released, is likely to attend Court when required. The secondary ground looks at the potential risk that the individual would reoffend if they were to await trial in the community. Finally, the tertiary ground examines whether bail is required to uphold the public’s confidence in the Criminal Justice System. While these tests pre-date the pandemic, the enhanced risk COVID-19 poses to inmate health has pushed the Courts to modify bail procedures.

Bail Protocol During COVID-19

The Ontario Court of Justice (OCJ) has recently updated its protocols regarding bail hearings during the present pandemic.1 Under the current regime, there is an expectation that all preparation and discussion that can occur outside of the court room will take place before a Court appearance wherever possible. This means that the Crown and the Defence are expected to make reasonable efforts to communicate prior to bail appearances to determine whether the hearing will proceed on consent or whether a contested hearing will occur. In an attempt to further minimize in-person contact, bail proceedings will proceed on a written record as much as possible. When a bail hearing is necessary, it will be conducted by audioconference or videoconference.

COVID-19: Impact on Bail and Public Confidence

Despite numerous procedural changes, COVID-19 has not changed the Crown’s normal obligation to demonstrate why the individual should be detained.2 The impact of COVID-19 on bail has primarily been analyzed under the tertiary ground: public confidence in the justice system.

Many argue that COVID-19 is a significant change that should be a factor considered when examining if an individual should be released. Detention Centres are often hotspots for COVID-19 outbreaks, which result in lockdowns, meaning individuals are denied access to showers, outdoor time, and shared spaces. Additionally, inmates lack personal protective equipment and cannot practice physical distancing while incarcerated, which increases their risk of falling ill.

Courts have consequently identified three principal reasons why granting bail during COVID-19 is in the public interest. Firstly, it is problematic to place individuals into custody and expose them to COVID-19 given the high rate of infections in Detention Centres. Secondly, newly-detained individuals may import the virus into jails and endanger other detainees and staff. Thirdly, inmates who are subsequently released from custody create the risk that infection within Detention Centres will be spread into the community, placing the broader population’s health at risk.

Courts will evaluate COVID-19 as it relates to bail by considering factors such as the general risk of infection, specific risks to the individual considering their medical history, and the prevalence of COVID-19 in the applicable Detention Centre.

If you or someone you know has specific questions about the bail process, please contact our criminal lawyers to obtain information tailored to your case.

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2 Normally the Crown has the burden to prove why a person should be detained until their trial. In certain circumstances, an accused person may have the burden of proof to show why they should be released pending trial. These circumstances include a) alleged breach of prior release conditions, b) alleged involvement in further criminal activity while already on bail for previous charges, and c) being charged with certain serious offences, such as terrorism or murder.