Bail Hearings and Show Cause Hearings in British Columbia
For most accused people, the bail hearing is the single most important stage of a case. It determines whether a person is released from custody or remains in jail while their matter proceeds. It also sets the conditions of release. These are rules that can affect daily life, employment, travel, and communication for months or longer. In many cases, it influences how the rest of the case unfolds, including resolution discussions and trial preparation.
Our firm represents clients at bail and show cause hearings throughout British Columbia, including at:
- Vancouver Provincial Court (222 Main Street)
- Surrey Provincial Court
- Richmond Provincial Court
- North Vancouver Provincial Court
- Port Coquitlam Provincial Court
- Victoria Courthouses
- By video link to regional jails
What is a bail hearing?
A bail hearing, formally called a judicial interim release hearing or show cause hearing, is held under section 515 of the Criminal Code. It is the court process that determines whether an accused person will be released from custody while their charges are pending, and if so, on what conditions.
Under section 11(e) of the Canadian Charter of Rights and Freedoms, every person charged with an offence has the right to “not be denied reasonable bail without just cause.” The starting point in every case is that an accused person should be released on the least restrictive from of release that is appropriate in the circumstances.
If the court orders detention, the accused remains in custody until their case is resolved through trial or sentencing. If the court orders release, the accused returns to the community but must follow strict conditions set by the court.
In many cases, the Crown does not seek detention and instead agrees to release on specific conditions. If the accused accepts those conditions, the matter may resolve without a contested hearing.
However, if the defence disagrees with one or more proposed conditions, or if the Crown seeks detention, a bail hearing is required. The court will then decide whether release is appropriate and, if so, what conditions should apply.
In some cases, the Crown may seek a short adjournment, often a few days, to prepare for the bail hearing. This is particularly common when detention is being considered or when additional information is needed. It is important to distinguish between being in custody and being formally detained after a bail hearing. A person may remain in custody awaiting their bail hearing, and that time can later be credited toward a sentence if they are ultimately convicted.
The three grounds for detention
Under section 515(10) of the Criminal Code, a court may only order an accused person detained on one or more of three grounds. The first is the primary ground under section 515(10)(a), which concerns attendance in court. Detention may be ordered where it is necessary to ensure the accused attends court so they can be dealt with according to law. In practice, this is generally only an issue where the accused has a history of failing to attend court or otherwise presents a genuine flight risk.
The second is the secondary ground under section 515(10)(b), which relates to the protection or safety of the public. Detention may be ordered where it is necessary to protect the public, including any victim or witness, and to prevent the accused from committing further offences or interfering with the administration of justice. The court must consider all of the circumstances, including whether there is a substantial likelihood that the accused, if released, will commit a criminal offence or interfere with the justice process.
The third is the tertiary ground under section 515(10)(c), which concerns maintaining confidence in the administration of justice. Detention may be ordered where, having regard to all the circumstances, it is necessary to maintain public confidence in the justice system. This involves a broader assessment, including the strength of the Crown’s case, the seriousness of the alleged offence, the circumstances surrounding the offence (including any use of a firearm), and the potential length of sentence if convicted.
On each of these grounds, the Crown must show that detention is necessary, not merely convenient. The Supreme Court of Canada reinforced this principle in R v Antic, which confirmed the “ladder principle” of bail. This principle requires courts to start with the least restrictive form of release, typically an unconditional release on an undertaking, and only move to more restrictive forms where the Crown can justify why letter options are insufficient. In other words, release is the default position in Canada, and each step up the ladder must be independently justified before more onerous conditions or detention can be imposed.
Who bears the onus?
In most cases, the Crown bears the burden of showing why an accused person should be detained, on a balance of probabilities. It is the Crown’s responsibility to justify why release is not appropriate.
However, in certain circumstances set out in section 515(6) of the Criminal Code, the onus is reversed. In these reverse onus situations, the presumption is detention, and the accused must show why their release is justified. This typically applies in more serious or higher-risk categories of offences, including situations where the accused is alleged to have committed an offence while already on another form of release; certain indictable offences where the accused is not ordinarily resident in Canada; specified firearms offences; drug trafficking; importing or production offences under sections 5 to 7 of the Controlled Drugs and Substances Act; offences committed for the benefit of a criminal organization; terrorism offences; and a second alleged intimate partner violence offence. It also applies to offences listed under section 469 of the Criminal Code, including murder, for which bail can only be granted by a judge of the British Columbia Supreme Court.
Recent legislative amendments under Bill C-48, which came into force in January 2024, expanded these reverse onus provisions further, particularly in relation to repeat violent offending and repeat weapons offences.
What the defence builds for a bail hearing
A persuasive release plan is the product of deliberate preparation and is designed to directly address the Crown’s concerns about risk. In a typical case, we begin by identifying and preparing sureties, which are responsible individuals who are willing to supervise the accused and pledge money they would forfeit in the event of a breach.
We also assemble proof of stable housing, ensuring there is a fixed address that is acceptable to the court and, where possible, not connected to the complainant. Employment and income information is documented to demonstrate stability and structure in the accused’s daily life.
Where relevant, we secure treatment or counselling supports, which may include community-based programs such as Connective Support Society or First Step Counselling, as well as residential treatment programs where addiction or mental health issues are a factor.
Finally, we draft proposed release conditions that anticipate and respond to the Crown’s public safety concerns, with the goal of presenting a structured and realistic plan that supports release on the least restrictive terms appropriate in the circumstances.
If bail is denied: the BC bail review
If bail is denied by a Provincial Court judge, an accused person has the right under section 520 of the Criminal Code to apply to the British Columbia Supreme Court for a bail review. A bail review is not a new hearing. Rather, it is based on the transcript of the original bail hearing, along with any new evidence filed by affidavit that was not previously available or considered.
To bring a bail review, the accused must file an application in the British Columbia Supreme Court and serve it on the Crown. The application must include a Notice of Application (Form 1), supporting affidavit(s), and the transcript of the original bail hearing, which must be ordered and paid for by the application.
A bail review is not automatic. The applicant must show one of the following: the original judge made an error that affected the outcome of the bail decision; there has been a material change in circumstances such that the decision would likely be different today; or it would be unjust to continue the detention without release.
The review is usually limited to the written record, though in some cases additional evidence of witnesses may be permitted. The Supreme Court judge may either dismiss the application or vary the original order and grant release on new terms.
In appropriate cases, steps can be taken quickly, and a bail review can be brought within days of the initial hearing to seek a fresh assessment of release. Because bail reviews are time-sensitive and procedurally complex, legal advice is strongly recommended.
Breaches and the consequences
If you are released on bail and later charged with a breach under s.145 of the Criminal Code, or with a new indictable offence, you will be brought back to the court for a new bail hearing. In most cases, this places you in a reverse onus position, meaning you must justify why you should be released again rather than the Crown having to justify detention.
Bail conditions are not optional. They are court orders and must be followed strictly. Even a minor or technical breach can have serious consequences for your liberty. If you are facing a potential breach issue, it is important to get legal advice from us immediately before any new charge is laid.
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Frequently Asked Questions
Under section 503(1)(a) of the Criminal Code, you must be brought before a justice within 24 hours of arrest, or as soon as possible thereafter. In Vancouver, bail hearings typically proceed at 222 Main Street before a Provincial Court judge or Judicial Justice of the Peace, often by video link from police custody or a remand facility such as the North Fraser or Surrey Pretrial Centre. In practice, hearings may occur within hours of arrest, though the Crown may seek an adjournment of up to three clear days under section 516 of the Criminal Code.
A surety is a responsible adult who agrees to supervise an accused person while they are on bail and who pledges a financial amount that they may be required to forfeit if the accused breaches their conditions. A surety is not required in every case. Rather, under R v Antic, the starting point is that release should occur on the least restrictive form of bail that is appropriate in the circumstances.
However, for serious charges, reverse-onus matters, or where an accused has limited community ties, a credible surety can make the difference between release and detention. Sureties must understand the charges and bail conditions and be prepared to testify about their ability to supervise.
Usually not. Cash bail in Canada is uncommon. The typical form of release in British Columbia is an undertaking (a signed promise to attend court) or a release order with conditions, sometimes with a surety who pledges an amount of money that is only forfeited if there is a breach. Under section 515(2)(d) and (e) of the Criminal Code, a cash deposit may be imposed only where it is justified and necessary in the circumstances.
The Supreme Court in R v Antic also cautioned against the routine use of cash bail and emphasized less restrictive forms of release. It is also important to note, do not pay anyone claiming they can “post bail” for you. That concept, as seen in American TV and some U.S jurisdictions, does not exist in Canada.
Section 515(10) of the Criminal Code sets out three grounds on which detention can be ordered: (1) the primary ground, where detention is necessary to ensure the accused attends court; (2) the secondary ground, where detention is necessary for the protection or safety of the public, including any victim or witness, or to prevent the commission of further offences; and (3) the tertiary ground, where detention is necessary to maintain public confidence in the administration of justice.
The Crown must show that detention is necessary on at least one of these grounds. In assessing this, the court may consider factors such as the strength of the Crown’s case, the seriousness of the offence, the circumstances of the alleged conduct (including the use of violence or firearms), and the potential sentence if convicted.
You have the right under section 520 of the Criminal Code to apply to the British Columbia Supreme Court for a bail review. The review is based on the transcript of the original hearing, along with any new evidence introduced by affidavit. Common bases for review include new information, a material change in circumstances (such as the availability of a surety, a treatment having been arranged, or housing being secured), or an error made by the justice who made the initial decision Bail reviews can often be brought within days of an unfavourable initial result.
At a minimum, it is helpful to have a proposed surety who is familiar with the case and available to testify; proof of the surety’s financial situation (such as pay stubs or bank statements); proof of stable housing (such as a lease of utility bill); proof of the accused’s employment; and any confirmed counselling, treatment, or residential program enrolments. In more serious or reverse-onus cases, the more concrete and structured the release plan, the better. Your lawyer will advise you on what to prioritize based on the specific charges and circumstances.
Normally, the Crown must show why an accused should be detained. However, in a reverse-onus bail hearing, the burden shifts and the accused must show why their release is justified. Under section 515(6) of the Criminal Code, this applies to certain specified offences, including offences allegedly committed while on another form of release, certain serious drug offences, firearms-related offences, offences involving criminal organizations, and some repeat intimate partner violence offences.
In these cases, the accused must demonstrate that detention is not justified and that release on conditions is appropriate. This is a higher threshold, making experienced counsel and a detailed release plan essential.
Yes. Your lawyer can apply to vary bail conditions under section 519.1 of the Criminal Code, usually by consent of the Crown and with the agreement of sureties. This is commonly used for modest changes, such as adjusting a curfew, allowing specific travel, or permitting communication for parenting purposes. Where there is no consent, a contested variation may be required, for example where a return to the family home is sought. This usually requires a formal application and, in some cases, a full review in the British Columbia Supreme Court.
You can be charged with a separate offence under section 145 of the Criminal Code, which can carry a maximum penalty of up to two years on indictment. More seriously, a breach will usually result in a new bail hearing, which may place the accused in a reverse-onus position where the Crown will often seek detention. Failing to appear in court under section 145(5) is treated particularly seriously by the courts. If you realize you have breached or are at risk of breaching your conditions, you should contact your lawyer immediately rather than waiting for police involvement.
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