Parents and caregivers often feel frustrated when they see headlines about a suspect charged with child online luring, sexual assault, sexual interference, or invitation to sexual touching being released before trial. Given that these offences frequently involve young victims, it’s understandable why many Canadians find such decisions alarming and extremely frustrating. However, it’s important to note that in most cases, police do not want to release an accused individual – what many people may not realize is that law enforcement is legally required to do so.
The reality is that if the accused is a first-time offender with no prior criminal record and is not destitute, their release from custody for the offences mentioned above in Canada is highly likely. Here’s why:
How Bail Works in Canada
When police arrest someone in Canada, they have a few options for release:
- A “Promise to Appear”
- An “Undertaking” with specific conditions
- A “Recognizance”, which may require a financial guarantee
If the accused is not released by police, they must be presented before a justice within 24 hours for a bail hearing, as required by Section 515(10) of the Criminal Code. At this stage, the Crown prosecutor must demonstrate why the accused should remain in custody. Detention is only justified if:
- The accused is unlikely to appear in court.
- The accused poses a significant risk to public safety (including victims and witnesses).
- Detention is necessary to maintain confidence in the justice system.
Since Canadian law emphasizes the presumption of innocence, it is not uncommon for courts to release accused individuals on strict conditions within 24 hours of arrest.
Why Courts Grant Bail: The R. v. Antic Precedent
In R. v. Antic (2017 SCC 27), the Supreme Court of Canada reinforced the principle that pretrial release (bail) is the norm, not the exception. The Court emphasized that:
- Individuals are presumed innocent until proven guilty.
- Bail conditions must follow a ladder principle, meaning the least restrictive conditions should be used first.
- Unjustified detention, such as requiring cash deposits that an accused cannot afford, disproportionately affects marginalized individuals.
- Conditions should only be restrictive enough to ensure court attendance and public safety.
Because of this ruling, bail conditions must be tailored to each case, and judges cannot automatically detain an accused unless there is strong legal justification.
Recent Bail Reforms: Bill C-48
To address public concerns over violent offenders, Bill C-48, which came into effect onJanuary 4, 2024, introduced key changes:
- Reverse Onus for Repeat Violent Offenders: In certain cases, the accused must now prove why they should be granted bail, rather than the Crown having to prove why they should be detained.
- Expanded Reverse Onus for Firearm Offences: More firearm-related charges now require the accused to justify bail eligibility.
- Intimate Partner Violence (IPV) Considerations: Those previously charged with IPV, especially with prior convictions, face tougher bail conditions.
- Consideration of Violent History: Courts must factor in an accused person’s history of violent convictions.
- Community Safety Focus: Judges must explicitly state how public safety was considered in bail decisions.
These changes aim to increase public safety while maintaining the legal rights of accused individuals.
As of February 2025, discussions continue about whether these reforms strike the right balance. Some groups, like the Canadian Civil Liberties Association (CCLA), argue that increased restrictions on bail could disproportionately affect marginalized communities and infringe upon the presumption of innocence. However, in some communities, like Calgary Alberta, even after Bill-C-48 came into effect, in 2024, of the 18 homicides, eight of the accused were released on conditions. (1)
While the legal system can feel frustrating, understanding its principles helps contextualize these decisions:
- Bail is a constitutional right in Canada, ensuring that individuals are not punished before trial.
- Release conditions are often imposed, including no-contact orders, internet bans, and curfews.
- Public safety remains a priority, with courts weighing risks carefully before granting bail.
- Reforms are ongoing, and changes like Bill C-48 aim to address concerns over repeat violent offenders.
As a parent or caregiver, staying informed and advocating for balanced policies ensures both justice for victims and fairness in legal proceedings. While it is difficult to see suspects released, the Canadian legal system is designed to protect both public safety and fundamental rights, a delicate balance that continues to evolve.
If you want to see changes regarding crimes against children, youth, and teens, write to your Member of Parliament and urge them to include offences such as online luring, sexual assault, sexual interference, and invitation to sexual touching in an addendum to Bill C-48 when it comes to custody issues.
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References
1/ https://www.blueline.ca/qa-changes-to-bail-practices-with-chief-mark-neufeld-calgary-police-service/
