Parliamentary Committee Notes: Bail vs. Conditional Release
Date: March 8, 2023
Fully releasable (ATIP)? Yes
Branch / Agency: CPB, Public Safety
To differentiate community release on bail from federal conditional release.
- Release on bail is governed by federal legislation through the Criminal Code. Accordingly, bail is the legislative responsibility of my colleague, the Minister of Justice, and is administered and enforced by our provincial and territorial criminal justice partners.
- That said, it may be helpful to clearly differentiate between bail and federal conditional release, such as parole or statutory release. I understand that these two types of release can often be mistakenly conflated by the public.
- As Minister of Public Safety, I am responsible for the Corrections and Conditional Release Act, which governs the conditional release of those under federal jurisdiction, typically those criminally convicted and sentenced to two years or more.
- While both bail and federal conditional release may require compliance with certain conditions while in the community, release on bail is a court decision, which occurs prior to trial for an individual charged with a crime.
- With respect to bail, while there are grounds for a court to deny release to an accused, including public safety, Section 11 of Charter specifically protects both the right to be presumed innocent and the right not to be denied reasonable bail without just cause.
- Those granted bail release who fail to comply with their court-ordered conditions may incur new criminal charges.
- Conditional release, on the other hand, involves a release decision by the Parole Board of Canada for offenders who have been convicted and are under sentence.
- The Parole Board of Canada makes decisions about conditional releases and the imposition of special conditions after taking into consideration all available information, and on the basis of the specific risk posed by the offender. In these decisions, the protection of society is the paramount consideration.
- Those on conditional release are supervised in the community by parole officers, who are federal employees of the Correctional Service of Canada. Federal offenders will remain subject to supervision until the expiration of their sentence.
- The intent of the conditional release is to support safe reintegration into the community, providing offenders with the necessary intervention, assistance, programs and controls to support rehabilitation and minimize the risk to public safety.
- Federal offenders who breach their release conditions may have their release suspended, and they may ultimately be returned to a federal institution for a part, or all, of their remaining sentence.
- That said, the vast majority of conditional releases are completed successfully, with fewer than 1% of supervision periods ending with a revocation for a new violent offence.
- Ultimately, keeping our communities safe is a priority for this Government. We remain committed to public safety, whether supporting the effective rehabilitation and safe reintegration of those serving a federal sentence, or supporting our criminal justice partners as they manage the risk of those on bail.
Canada’s bail system is a court process which governs the determination of whether an individual charged with a criminal offence will be released from custody prior to trial, whether such release requires conditions, or whether the individual will remain in detention awaiting trial. During a bail hearing, the Crown must establish why an accused should remain in custody prior to trial. This requires the Crown to satisfy the court, on a balance of probabilities, that at least one of the grounds for denying bail exists in the circumstances, such as to ensure the accused appears in court, for public safety, or to maintain confidence in the administration of justice (e.g. consideration of the gravity of a particular offence). When the court orders that an accused person be detained prior to trial, they are typically remanded to a provincial or territorial correctional facility. If the accused is released on bail based on the information presented at the bail hearing, the court may require that the accused abide by certain conditions while awaiting trial. Failure to comply with these conditions may result in new criminal charges. It should be noted that the presumption of innocence and access to bail are areas specifically addressed under Section 11 of the Charter.
The administration of bail hearings is largely the responsibility of the provincial or territorial court system, and monitoring and enforcing of bail releases is chiefly the responsibility of law enforcement. However, Canada’s bail system is governed by the relevant provisions of the Criminal Code and is therefore under the legislative jurisdiction of the federal government. In particular, the Criminal Code is the responsibility of the Department of Justice and the Minister of Justice.
An adult who has been criminally convicted, and sentenced to two years or more, typically serves their sentence in a penitentiary under federal jurisdiction. However, a part of this sentence is usually served on conditional release. Under the Corrections and Conditional Release Act (CCRA), there are different types of conditional releases, including Day Parole, Full Parole and Statutory Release.
The Parole Board of Canada (PBC) has exclusive authority to grant both Day Parole and Full Parole, pursuant to the CCRA. The PBC bases parole decisions on various information sources, including assessments prepared by the Correctional Service of Canada (CSC). Before granting release, PBC members must be satisfied that the offender will not pose undue risk to the community and that they will fulfill specific conditions. Offenders serving determinate sentences become eligible for Day parole after serving the longer period of either six months, or six months prior to becoming eligible for Full Parole; and for Full Parole after having served one third of their sentence. There are much lengthier periods of ineligibility for offenders serving indeterminate and life sentences. Pursuant to the CCRA, all federal offenders serving determinate sentences are entitled to Statutory Release from a federal penitentiary after serving two-thirds of their sentence, unless they are likely to commit a serious offence before the end of their sentence. Statutory release is mandated by subsection 127(1) of the CCRA, and not by a decision made at the discretion of the PBC. However, like parole, the PBC may impose specific conditions on these releases. Offenders serving life or indeterminate sentences are not eligible for Statutory Release.
The purpose of all forms of conditional release is to contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen. It aims to accomplish this by providing offenders with intervention, assistance, programs and necessary controls required to minimize the risk of their committing new offences. Supervision provides an opportunity to ensure support and monitoring of the offender’s reintegration, thereby minimizing the risk of recidivism. All offenders on conditional release must report a federal parole office. Should an offender breach their release conditions, or should it be deemed necessary for the protection of society, an offender’s release can by suspended and they may ultimately be returned to a federal institution.
Prepared by: Darren Bell, Correctional Policy Unit, CPB (343) 572-3164
Approved by: Talal Dakalbab, SADM, CPB, (613) 852-1167
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