Bail and Types of Release

If you’ve been charged with an offence, the police have discretion to release you from the station and/or scene, or to hold you for a bail hearing.

 I’ve Been Charged and Released

 If you’ve been charged with an offence, the police have the discretion to release you from the scene/station, with or without conditions. These different types of releases are known as:

  1. Appearance Notice (“Form 9 Release”)

  2. Promise to Appear (“Form 10 Release”)

  3. Undertaking Given to a Peace Officer/Officer in Charge (“Form 11.1 Release”)

  4. Recognizance Entered into Before an Officer in Charge (“Form 11 Release”)

An appearance notice is the least restrictive form of release. This form simply notifies you what you’ve been charged with, and when and where you must attend for your first court appearance as well as for fingerprinting (for hybrid or indictable offences). These are usually issued directly from the arrest scene.

A promise to appear is very similar to an appearance notice in form. The main distinction is that a promise to appear is generally issued at the station once you have been processed and formally charged.

An appearance notice and promise to appear, on their own, do not require you to comply with any release conditions.

If you are released from the station, on a promise to appear, the police also have discretion to include an undertaking to a police officer. The undertaking specifies the conditions you must follow upon your release. For example, the undertaking may restrict your ability to visit certain locations, to possess weapons or to communicate with specific people.

You can also be released on a recognizance, which is a written promise to appear in court on a specific date and time and to follow certain conditions in the meantime. You are also required to pledge or promise a specific amount of money to the court as a security for your release. If you fail to comply with the conditions of your own recognizance, you forfeit this sum of money.

Importantly, an undertaking or recognizance creates new potential criminal liability: if you do not comply with the applicable conditions, you can be charged with the failure to comply with an undertaking or order (s. 145(4), (5) and (6) of the Code).

 I’ve Been Charged and Held in Custody

If you’re not released from the station or scene, the police will hold you for a bail hearing. If you are denied bail, you will remain in custody pending either an appeal of the bail decision or until the case is dealt with either by guilty plea or trial.

If you are granted bail, you will be released on either an/a:

  1. Undertaking with or without conditions (“Form 12 Release”);

  2. Own recognizance;

  3. Bail Program Recognizance;

  4. Surety Recognizance; or

  5. Residential Surety Bail

A Form 12 Release is the same as an undertaking discussed above, but it is given to a Justice or Judge who decides to grant you bail. The undertaking can either be with or without conditions. Following your release on an undertaking, you are bound to return to court on the date, time and place stipulated by the court.

A bail program recognizance is a more restrictive form of release which requires a caseworker to check-in regularly to ensure you are following your bail conditions. A surety recognizance is even more restrictive. Your release is conditional on one or more individuals (known as “sureties”) coming to court and agreeing to supervise you. The court may also require your surety to promise to pay the court a specific amount of money as security to the court. Your surety or sureties are required to report you if you do not follow your conditions. Similarly, a residential surety bail requires all of the above but also requires you to live with your surety.

Sureties are typically spouses, family members such as parents, grandparents or siblings, or family friends. To be a surety, you must have no criminal record; be over the age of 21; have an ability to supervise the accused individual; have an amount of money to pledge to the court as security; a capacity to understand and enforce bail condition; and, an ability to attend court as required.

Undertakings and recognizances can have various degrees of restriction. Less restrictive releases may include no or few conditions. More restrictive releases may include very strict conditions such as curfew (i.e. you must be home during specific hours) or house arrest (i.e. you cannot leave your home except for certain purposes or in the presence of your surety).

Disclaimer: Please note that this article is not legal advice. It is simply intended to be a simplified explanations of the criminal process in Ontario. There may be differences, however, in different jurisdictions or courthouses within Ontario based on their own rules, regulation or common practices. If you’ve been charged with a criminal offence or are anticipating potential charges, don’t hesitate to reach out to a lawyer for a consultation to discuss the particulars or details of your case.