Can You Get Bail if Charged with Murder in Canada?

The short answer is yes. There is no alleged offence that is too serious for you to be eligible for bail.

That does not mean it’s easy to receive bail if you are charged with murder. On the contrary, the process is complex and usually requires help from an experienced lawyer.

This article will address questions I often receive about the process.

In law, someone charged with murder is not a murderer. They are a person accused of murder.

Everyone charged with a crime in Canada has a right to reasonable bail because they are presumed innocent until proven guilty. Our legal system strives to avoid detaining innocent people unless necessary. Those facing murder charges are no exception.

When you are charged with murder, the police will take you to court (either in-person or by Zoom). The police must do this within 24 hours of your arrest. At this first appearance, the court will push your matter to a later date, and you will remain detained. “Detained” here is another way to say you will stay in jail.

Days or weeks later, you will have a bail hearing.

Although everyone wants to get out of custody as soon as possible, it’s important not to rush into the hearing. Prepartion is paramount.

The Criminal Code of Canada mandates that a bail judge consider three factors. The law calls these factors the primary, secondary, and tertiary grounds. I will address each.

This ground concerns whether you present a risk of not attending court. Put another way, will you flee?

On this ground, the judge may consider whether:

• you have ties to the jurisdiction;
• you have a history of failing to appear in court;
• you have the means to flee;
• you have expressed an intention to flee; and
• there is evidence you might flee (for example, a fake passport).

This is not an exhaustive list of factors.

To justify detention on this ground, the judge must find that you are “significantly likely” to endanger public safety or interfere with the administration of justice while on bail. The “administration of justice” factor largely concerns whether you might destroy evidence or interfere with potential witnesses (for example, intimidating them).

The more serious the charge, the higher the secondary ground concerns. Consider these two examples. In the first, you are charged with shoplifting a chocolate bar. The bail judge finds you are likely to shoplift again. Although you are likely to commit another offence, that offence poses a low risk to public safety. Now suppose that you stand charged with murder. A finding that you are likely to re-offend would, of course, endanger the public.

On the secondary ground, the judge may consider:

• whether you have a criminal record;
• whether you have a history of not complying with bail conditions;
• the relationship between you and the deceased;
• whether you have made threats to potential witnesses;
• your level of participation in the alleged murder (for example, get-away driver vs. shooter);
• whether you will be in circumstances like the alleged murder; and
• the strength of the prosecution against you.

This is not an exhaustive list of factors.

The tertiary ground aims to maintain the public’s confidence in the justice system. The key question is: Would your release offend a reasonable member of the public? A reasonable member of the public is not just anyone. The courts defines this person as someone who understands the circumstances of your case and the law on bail. It’s not Joe from the Bridge who calls into radio shows to rant about things he has little knowledge of.

Assuming the perspective of the reasonable person, the bail judge must consider these four non-exhaustive factors:

• the strength of the prosecution’s case;
• the gravity of the alleged offence;
• the circumstances of the commission of the offence, including whether a firearm was used; and
• if there is a potential for a lengthy term of imprisonment, and if a firearm was used, if the sentence would be three years or more.

In bail hearings for murder, the second and fourth factors are not contentious. Murder is obviously a serious offence and results in a life sentence upon conviction.

Usually, the dispute is on the first ground: the strength of the prosecution’s case. At a bail hearing, your lawyer may identify preliminary weaknesses in the evidence against you. The weaker the case, the stronger the defence argument on the tertiary ground.

The judge may also consider whether you pose a risk to public safety. Detaining you if you pose no risk to public safety might offend a reasonable member of the public.

The most important thing you can do before a bail hearing for murder is to create a strong release plan. Your plan should explain how you will alleviate the judge’s worries about releasing you. The plan might include:

• a person or people to supervise you;
• an address where you will live;
• restrictions on leaving this address, such as curfews or house arrest;
• GPS ankle bracelet monitoring;
• restrictions on using the phone and Internet;
• prohibitions on operating a car; and
• prohibitions on communicating with certain people.

This is very far from a complete list. It is a small sample of what might appear in a release plan.

Often, the most important consideration in a release plan is the first: a person or people to supervise you. The technical term for this role is a “surety” (sometimes incorrectly said as “assurety”).

A surety is a person who promises to help the court ensure you follow your bail conditions.  If you violate your conditions, the surety must call the police. A violation may result in the surety forfeiting an agreed-upon amount of money.

On serious charges like murder, the bail judge will scrutinize the proposed surety. For instance, if the judge thinks house arrest is necessary but your proposed surety is rarely home, the judge will likely deny bail.

Because bail for murder charges often results in house arrest, you may want to propose having two or three sureties living with you. More than one surety may reduce the judge’s concerns that you will be unsupervised and leave the house.

You or your surety may have to deposit or pledge funds in case you violate your bail conditions. Pledging means you don’t deposit anything, but you agree to forfeit the amount pledged if there’s a violation.

In Canada, the bail judge must not set the deposit or pledge amount outlandishly high. The amount deposited or pledged must be significant to the person on the hook for it. The purpose of the monetary component of bail is to discourage non-compliance.

For example, suppose a surety earns $70,000 a year and owns assets worth $25,000. A pledge of $50,000 would be significant for that person. Demanding a deposit of $1 million would not be appropriate.

If the court grants bail on a murder charge, the pledge or deposit is generally high. But that figure is not high in the abstract. The amount is measured against the person responsible for it. What is a lot for someone may not be a lot for someone else.

In Ontario, non-appeal matters proceed before either the Ontario Court of Justice or the Superior Court of Justice. The Superior Court is the higher of the two. Bail hearings for murder are always at the Superior Court.

You may apply for a review of your bail decision if: (a) the bail judge made a legal error; OR (b) your circumstances have changed in a material way.

To succeed on this route, you must show that the judge misstated or misapplied the law and that this error affected the outcome of the bail hearing. The reviewing court would not find an error of law if they simply disagreed with the outcome.

If you’re alleging that the bail judge made an error in a murder case, you’d apply for a bail review at the Ontario Court of Appeal.

This is the most common way to get bail after losing at a bail hearing. To win on this route, you must show that the bail judge would have decided your case differently if they knew about your change in circumstances. A few common examples of changed circumstances include:

• a new proposed surety and bail plan;
• information that reduces the strength of the Crown’s case; and
• a suitable living arrangement that you did not have at the bail hearing stage.

If you’re arguing that your circumstances have changed materially, you’d apply for a bail review at the Superior Court.

The simplest option is for your lawyer to ask the Crown (prosecutor) to change your conditions. The Crown does not have to agree.

If the Crown says no, your only option is to apply for a bail review. This review would be on one of the two routes (error or change) I spoke about earlier.

Self-representing at a bail hearing for the most serious charge is not a good idea. I would strongly recommend hiring a lawyer for two reasons. First, this process is very complicated. I would advise having a lawyer for the same reason as you would see a cardiologist for a heart problem. Second, you will be in custody until your bail hearing. Putting together a bail plan and preparing your surety or sureties for the bail hearing is next to impossible while you are in jail.

If you or a loved one stands charged with murder, you may wish to speak with a lawyer. Most criminal defence lawyers will gladly speak with you at no initial charge. You can reach us at (416) 999-8389 or by completing a consultation form.