Arrest and bail in Alberta

What happens when you are arrested

You should know what happens if you are arrested and charged with criminal offences. First of all, you are still innocent. Charges are nothing more than accusations. You have not yet been proven guilty. You have many rights, some of them constitutional. A good lawyer will assert and protect your rights in any criminal proceeding.

The police may arrest you and charge you with criminal offences if they have reasonable and probable grounds for arrest that are objectively justifiable. When you are arrested, you must identify yourself; otherwise you may be charged with the offence of obstruction. Upon arresting you, the police may release you for nothing more than a promise to appear in court when required to do so or an agreement to respect certain conditions. The police have the authority to release a person accused of relatively minor offences. Indeed, an ordinary traffic ticket is actually a form of release by the police officer.

Your first appearance

If the police do not release you, they will detain you until your first appearance before a justice of the peace, which should occur within 24 hours but sometimes does not. Your first appearance will typically take only ten or fifteen minutes, and rarely as long as an hour. It may occur on any day of the year, from 8:00 in the morning until midnight. You will attend with the justice of the peace, a police officer, a Crown prosecutor (a lawyer representing the government), a lawyer representing you if you want one, and an interpreter if you request one. If you are under 18, you have the right to have a parent or another adult attend the hearing with you. Many of these people will appear by videoconference or by telephone.

The justice of the peace will check your identity, read the charges to you, and confirm that you understand the charges. The justice does not expect you to agree with the charges, only to understand them, because otherwise the justice cannot continue the hearing; you will have to wait in a cell until the next day when a judge sitting in court can speak with you. The first appearance is not the time to argue about the charges. You cannot plead guilty (except to certain very minor charges), nor should you make a case for your innocence (remember that you are innocent at this stage). Be careful about what you say: the hearing is recorded, and anything that you say may be used against you later on. Many people have ruined their defence by making careless statements. Please get legal advice before saying anything to the police, in court, or even in detention.

First appearances in Alberta are almost always conducted in English, though some subsequent criminal proceedings may be conducted in French at your request. If you are not fully comfortable in English, feel free to request an interpreter for any language that you prefer. The court will provide one free of charge.

Your bail hearing

Except in a few uncommon instances, you will get the chance to request bail. Technically bail is called «judicial interim release», but even lawyers and judges call it bail. You have the constitutional right to be released on reasonable bail unless the Crown can prove just cause for denying bail. The meanings of «reasonable bail» and «just cause» are discussed below.

Bail is important because it often makes a big difference in the conduct of the entire criminal case. If you win bail, you may be able to fight the charges more effectively. If you are denied bail, you may have to stay in detention for many months, and that may hurt your chances of a successful defence and also put pressure on you to accept a less advantageous settlement rather than waiting for a trial.

Unless you are under 18, you get only one bail hearing. You may have it immediately at your first appearance or postpone it to a subsequent appearance in court. Most people hold the bail hearing immediately in the hope of being released right away, but sometimes it is better to wait. Consider getting a lawyer’s advice.

You may have a lawyer speak to bail for you. Until 2018, most accused people in Alberta had no lawyer to represent them at first appearance; if they spoke to bail, they did so on their own. I considered that unfair and successfully advocated for lawyers to be provided free of charge at all bail hearings. Today, Legal Aid Alberta does provide lawyers, known as duty counsel, at bail hearings in Alberta. You do not have to use duty counsel, but you are welcome to do so, at no cost to you. Because bail is important and can involve complicated legal issues that you may not be able to address on your own, you should consider having a lawyer—either your own lawyer or duty counsel—speak for you at the bail hearing.

Duty counsel will represent you at the bail hearing only. There may be duty counsel (probably a different person) on some other occasions when you appear in court. But duty counsel will act for you only temporarily. If you want ongoing legal help with your case, you will need to find your own lawyer. You should consider doing so, especially if your charges are serious. You may be able to get a lawyer for little or no money. Duty counsel can suggest some possibilities.

If you decide to have your bail hearing before the justice of the peace, the Crown will begin by stating its position. The Crown may support bail for you, in which case the justice of the peace will ordinarily give you bail, and the only question will be the terms of your release. Those terms must be reasonable, as I stated above, and the law requires the lightest possible terms that will ensure that you are likely to show up for court and stay out of trouble. You may be released without conditions, or with only a few conditions. If the justice of the peace believes that conditions alone will not work (often because you have a history of not respecting conditions), you may get what is called no-cash bail, or bail without deposit: you will not have to deposit any money in order to be released, but you will have to obey certain conditions; otherwise, you may be required to pay money in the amount set by the justice of the peace, and you may also be arrested again and charged with a criminal offence for violating your conditions. If no-cash bail seems unlikely to work, the justice of the peace may require you to get someone (called a surety) to deposit property as security that the Crown can keep if you violate the conditions of your release. Finally, the justice of the peace may require you to deposit cash with the court in order to be released. You will get the cash back if you abide by the conditions of your bail; otherwise, the Crown may seek to keep it. (If you have to deposit cash, it must be in a reasonable amount—one that you can afford. That may be a very small amount if you have hardly any money.)

If instead the Crown opposes bail, the Crown must prove «just cause». There are only three possibilities: 1) the «primary grounds», namely that you probably would not show up for court if you were released; 2) the «secondary grounds», namely that there was a substantial likelihood of your committing a crime or interfering with the administration of justice if you were released; 3) the «tertiary grounds», namely that releasing you would cause the public to lose confidence in the administration of justice. If the Crown cannot prove one of these, you must be given bail in some form.

Sometimes, however, the opposite is true: it is you who must prove that you can be safely released; the Crown does not have to prove anything. That situation is called the reversed onus, because the onus (burden) of proving the position on bail lies with you rather than with the Crown. When the onus is reversed, just cause for denying you bail is presumed from the circumstances. Of the various circumstances that reverse the onus, the most common is a charge of violating the terms of bail that was previously granted to you. In other words, if you are released on bail but are then charged with breaching the conditions set by the court, the court must assume that you cannot be trusted with bail again unless you can prove the opposite. In that situation, you may wish to get a lawyer’s help.

If the Crown opposes bail, it must explain why. Do not interrupt the Crown prosecutor, even if you disagree with what she says. The Crown will have a copy of your criminal history and will probably use it (once you have confirmed that it is accurate). Once the Crown is finished, you have the chance to explain your position and respond to anything that the Crown has said. The justice of the peace, perhaps after asking you a few questions, will decide whether you get bail and, if so, on which terms. You can dispute the decision by bringing an appeal to the court on another day, but you will probably need a lawyer’s help.

Bail is a contract between you and the Crown: in exchange for being released, you agree to comply with certain conditions. You will receive a copy of the conditions in writing when you are released. It is important to respect the conditions. If you violate them, you may be arrested again and face additional criminal charges, and you may also lose money and find it difficult to persuade the court to give you bail again. If you think that your conditions are unreasonable or impossible to satisfy, you should speak with a lawyer, who may be able to ask a court to modify the conditions. Since bail must be reasonable, the conditions must be ones that you can respect.

Final thoughts

Many people are arrested and charged with crimes even though they may have done nothing wrong. Criminal charges, however, are serious. If you face criminal charges, ask for a lawyer right away, before you say or do anything that could harm you. Find a good lawyer whom you trust to fight hard for the best result. Call me right away for an initial consultation. We shall discuss your situation and develop a good strategy for your defence.

I can also speak to bail for you, if you want me to do nothing but that for the time being. Bail hearings are usually scheduled quickly, so please call right away to make arrangements. If I am not available, I can probably recommend someone else whom you may call. Please note that I require payment of my fee before I attend your bail hearing. You may have a friend pay the fee for you.

Contact me today