Getting Bail In Alberta

police car

When you are arrested for a crime, the first thing that will have to be decided is whether or not you should be held in jail (known as a remand centre) or released into the community on bail while you await your trial. Currently, trials in Alberta are significantly delayed and it can take several months to several years to have your trial heard. If you are ordered to await trial in a remand centre, you will be unable to work and there will be limited time to talk to your family, your lawyer and to assist your lawyer with preparing a defence. If you are arrested for a crime, you will want to avoid waiting for your trial in jail.

What happens when you’re arrested for a criminal offence?

If you are arrested, the police have a few options. First, they can release you right away and give you a promise to appear. The promise to appear will give you a court date, time, and place and you will not be required to stay in jail while you wait for your trial. It is important for you or your lawyer show up to court on the date on your promise to appear, otherwise a warrant for your arrest could be issued and you could face additional criminal charges.

The police can also release you on an undertaking. This is similar to a promise to appear in that you are released, and have to come to court on the day the undertaking says. It is different, because an undertaking may also have some extra conditions you have to follow going forward, until your criminal charges are fully dealt with. For example, there could be conditions to live at a specific address , not to contact someone, or not to drink alcohol. It is important to follow the conditions in your undertaking, otherwise you could face additional criminal charges.

The police can also defer the decision to release you to a Justice of the Peace and hold you in jail for a bail hearing. That means you cannot leave jail unless or until a Justice of the Peace releases you. As always when detained by the police, you are entitled to talk to a lawyer before your bail hearing, and have that lawyer represent you in your bail hearing. You are also entitled to a bail hearing within 24 hours of your arrest, although this timeline is not always met. Any later than 24 hours may be a violation of your rights under the Charter.

What happens during a bail hearing?

If you are being held for a bail hearing, you can choose to speak to your bail yourself, or hire a lawyer to represent you, for your bail in front of a Justice of the Peace. Don’t worry if you are in a rural area. Your lawyer of choice from anywhere in the province can help you with a bail hearing, because bail hearings can be done with your lawyer on the telephone any day of the week, including weekends and holidays.

The Justice of the Peace makes the final decision about your release in a bail hearing. During the hearing, both your lawyer and the Crown prosecutor will have the chance to speak. Sometimes they both agree you should be released, other times they may make arguments about whether or not you should be released, and how.

A lawyer can help you in many ways. First, if the Crown prosecutor does not want to release you on bail, your lawyer can help advocate as to why you should be released. A lawyer can also help negotiate and advocate for how you are released, and whether you should be on any conditions.

The Justice of the Peace will consider three things:

Whether there is any concern you will not attend your future court appearances;
Whether there are any public safety concerns with your release;
Whether your release would cause the public to lose faith in the justice system.
As long as the Justice of the Peace is satisfied these three considerations will not be put at risk by your release, you should be released from jail. At the end of your bail hearing, you will get a court date to appear on as well as conditions which you must follow while awaiting your trial. You must follow these conditions exactly or, again, you may be charged with the additional criminal offence of breaching your conditions of your release.

If you choose not to speak to your bail, you will get a court date to speak to it in provincial court, and will have to stay in jail unless and until you are released by a provincial court judge on that day. Usually, prior to speaking to bail before a Justice of Police you are held in the detachment where you were arrested or are transferred to the Edmonton Police Service’s Downtown Division. If you do not speak to bail before a Justice of the Peace, you will be transferred to a local remand centre: usually the Edmonton Remand Centre, the Calgary Remand Centre or the Peace River Correctional Centre for long-term holding.

How can I be released after a bail hearing?

There are many different ways you can be released from jail in a bail hearing. The least restrictive way is called an undertaking without any conditions to follow.

You can also be released on “no cash” or “cash” bail. The only difference between no cash and cash bail, is that in order to be let out of jail on a cash bail, you will be required to post money up front, which will be returned to you if you do not break any of your release conditions. You do not have to post money if you are let out of jail on a no cash bail, but you may have to pay the money later if you do break any of your conditions. Additionally, you will face further criminal charges of breaching your bail conditions.

The most restrictive way to be released is with a surety. A surety is someone in your community who promises to supervise you. Typically this is a person of good character, who is close to you both in terms of your relationship and physical location.

Why does this matter?

It is important to get your bail right the first time, because without a change in circumstances or an error in law, you only get one chance to speak to your bail. If you get denied release, you can try again in the court of Queen’s Bench, but only if something has changed since your first bail hearing, or if the Justice of the Peace made a mistake in how she applied the law when deciding. You may also end up with a long list of restrictive conditions that may be difficult for you to follow. If you wish to get these changed, you would have to make an application in Queen’s bench too.

A lawyer can help you come up with a plan for your release to ensure you have somewhere to go and the supports in place necessary to ensure you make your court appearances, and don’t get into trouble. This type of plan makes releasing you more appealing to the Justice of the Peace.  A lawyer can also help.

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