In British Columbia, as well as the rest of Canada, individuals charged with a criminal offence have the right to seek bail. Bail is the ability to be released from custody while awaiting trial. However, not all bail hearings are treated the same. In certain cases, the usual presumption of release does not apply, and instead, the burden shifts to the accused to justify their release. This is known as a reverse onus bail situation.
If you or a loved one is facing a bail hearing in B.C. and may be subject to reverse onus, understanding how this process works is critical. Here’s what you need to know.
What Is Reverse Onus Bail?
In a typical bail hearing, the Crown (prosecution) must show why an accused person should be kept in custody. However, in a reverse onus situation, the roles are reversed: the accused must show the court why they should be released.
This is a much higher threshold to meet and requires strong legal strategy and planning.
When Does Reverse Onus Apply in British Columbia?
Under Section 515(6) of the Criminal Code reverse onus applies in several specific situations, including but not limited to:
1. Firearm-Related Offences
If the offence involves a firearm, especially if it’s alleged to have been used in the commission of another crime.
2. Drug Trafficking or Production
For serious drug charges under the Controlled Drugs and Substances Act, specifically sections 5 to 7 of the Act or conspiring to commit those offences. Sections 5 to 7 related specifically to trafficking and production.
3. Previous Convictions or Bail Breaches
If the accused is already on bail, probation, or has a record of failing to comply with court orders, reverse onus may apply.
4. Domestic Violence Allegations
In British Columbia, courts take domestic violence seriously. If someone is charged with a domestic offence while already under conditions related to a previous domestic incident or have committed a prior domestic violence offence, they will face reverse onus.
5. Offences Allegedly Committed While on Bail
If an individual is charged with committing a new offence while already out on bail for another, they may have to prove to the court why they should be granted bail again.
Under Bill C-14, which is currently in the House of Commons, the Government is looking to expand reverse onus offences to also include:
- Random and unprovoked violence
- Extortion
- Any offences involving a criminal organization
- Theft of a motor vehicle
- Break and Entering
- Human trafficking
- Violent offences where previous violent offences have been committed in the last ten years
What Does the Accused Have to Prove?
In reverse onus situations, the accused must show:
- That their detention is not necessary to ensure they attend court.
- That they are not a risk to public safety or likely to commit further offences.
- That their release would not undermine public confidence in the administration of justice.
To do this, the defence usually prepares a detailed bail plan, which may include:
- A surety (a responsible adult who agrees to supervise the accused)
- Cash bail
- Conditions such as curfews, no-contact orders, abstaining from alcohol or drugs, etc.
- Proof of stable housing, employment, or enrolment in treatment programs
- House arrest conditions or electronic monitoring
Without a concrete plan of how an accused is going to stay out of trouble and not commit further offences, it is unlikely they will be able to satisfy a Judge that they should be released. If they are not able to satisfy the Judge that they should be released, they will remain in custody until such time that they can have a bail review, they resolve their matters, or the matter goes through the trial process.
Why Legal Representation Matters
Reverse onus bail hearings can be high stakes. Without a concrete plan of how an accused is going to stay out of trouble and not commit further offences, it is unlikely they will be able to satisfy a Judge that they should be released. If they cannot satisfy the Judge that they should be released, they will remain in custody until such time that they can have a bail review, they resolve their matters, or the matter goes through the trial process. This can have serious consequences for employment, family life, and the ability to prepare a defence.
At our firm, we have extensive experience representing clients at bail hearings across British Columbia, including in reverse onus cases. We work closely with clients and their families to build strong release plans and advocate for fair outcomes.
Contact Us for Help
If you or someone you know is facing a bail hearing in British Columbia, do not face it alone. Contact our office today to schedule a confidential consultation with one of our criminal defence lawyers. We are here to help you understand your options and protect your rights at every stage of the process.