Explainer: The three grounds a judge must consider before granting bail to an accused facing criminal charges

Court must consider if they will show up, stay out of trouble, and will release undermine public trust in the justice system

February 26, 2026

When a judge decides on whether an accused person should be released on bail in Canada, they consider three grounds under section 515(10) of the Criminal Code:

• Primary grounds: To ensure the accused will attend court.
• Secondary grounds: To protect public safety and prevent further offences or interference with justice.
• Tertiary grounds: To maintain public confidence in the justice system, considering the seriousness of the offence, strength of the evidence, and potential sentence.

More simply put, a judge has to consider if the person is released on bail, will they show up? Will they stay out of trouble? Will it undermine trust in the system?

When someone is released on bail, which is technically called a “judicial interim release,” if the court is not satisfied they’ll show up for court or not commit further offences, it may require a surety, usually a family member or close friend, who promises to supervise and make sure the accused follows bail conditions. 

The surety signs an undertaking and sometimes they are required to put down or pledge money to ensure the accused shows up and is a good boy or girl. The surety is then expected to supervise the accused, make sure they follow court-ordered terms.

Under the criminal code section 515(2)-(3), judges are required to follow the “ladder principle,” starting at the least restrictive release (unconditional undertaking) only stepping up the ladder when justified. 

The 2017 Supreme Court of Canada decision in R v Antic baked this into the system by stating that bail is presumptively unconditional, Crown must justify every single step up the ladder, and cash bail should be rare. Basically, the default position is unconditional release on the least onerous form appropriate in the circumstances. The onus is on the Crown to convince a judge that an accused should be detained because of one or more of the three gounds.

As with much of the criminal justice system, this is related to the Charter of Rights and Freedoms, section 11(e) that says any person charged with an offence has the right not to be denied reasonable bail without just cause.

There are other more recent precedents but Antic is arguably the most important, confirming and reminding lower court judges that release on bail without onerous conditions is a constitutional imperative.

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Paul J. Henderson
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