The most terrifying experience for anyone is getting arrested by the police. At the time of your arrest you are detained and are no longer free to leave and go about your business. The police take possession of your personal belongings, handcuff you and place you in the back of the police car for transport to the police station. After being processed at the police station, some people get released upon signing a “Promise to Appear” in court and some don’t. This article outlines the various forms of release from custody, who gets released and under what circumstances.

Promise to Appear in Court
The simplest form of release from custody is a “Promise to Appear” in court. This is sometimes referred to as an “Appearance Notice”. This is a form which the police complete and the Accused person signs. Upon signing, the Accused is released from custody on his promise to appear in court on a later date and to attend at the police station for fingerprinting and to have his photograph taken pursuant to the Identification of Criminals Act. Accused persons who normally reside in the area of the province under the jurisdiction of the court who are charged with relatively minor criminal and drug offences are usually released on a Promise to Appear. (An accused person who is not arrested can be issued a “summons” to appear in court.)

Undertaking with Conditions
The police may also ask an Accused to enter into an “Undertaking with Conditions” to secure his release from custody. This form of release is frequently used in domestic violence and sexual assault cases where the Accused will be asked to undertake to have no contact with the complainant or alleged victim. There can be other conditions such as abstaining from alcohol or drugs or residing at a particular address. The police have the burden of justifying these conditions should the Accused request a variation before a judge of the Provincial Court.

Bail Hearing
If the police decide not to release an Accused on a Promise to Appear, Recognizance or Undertaking, they must take him to court for a bail review within twenty-four hours of his arrest. At a bail hearing a judge will decide if the Accused will be released and the conditions of release. If a judge determines that an Accused can be released it will be in the form of a Recognizance entered into before a judge or justice. The Recognizance may be with or without a surety. A “Surety” is an individual who accepts responsibility for the Accused and promises to pay an amount of money to the court should the Accused fail to attend at court or fail to abide by his release conditions. Not everyone can act as a surety; for example, the court would not accept as a surety an individual without a fixed address or an individual who has a criminal record.

Who May be Refused Bail
If an Accused has a history of failing to show up at court or has a history of committing the same offence, he may be denied bail. Similarly, if the Accused was already out on bail and breached his release conditions, he may be denied bail. In some cases if an Accused was already on release conditions for an indictable offence, he may have to show cause as to why he should be released. As a general rule, if an Accused has already been released on conditions and is arrested again, the release conditions will be more onerous and may include a curfew and house arrest. If an Accused habitually breaches his release conditions, the court may decline to release him under any conditions and he will have to remain in custody until his trial. In some cases, after an Accused has been arrested, the Crown Attorney may request that the Court not proceed with a bail hearing for three days to permit the police to investigate further.

An Accused who has been arrested and not been released by the police pursuant to a “Promise to Appear” should always contact a lawyer to determine how to obtain his release from custody. An experienced criminal defence lawyer can navigate the often complex rules which will determine if you are released from custody and under what conditions. A failure to get it right the first time may result in a costly appeal of the bail decision.