Bail in
CanadaCanada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
refers to the release (or
detentionA prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
) of a person charged with a
criminal offenceThe criminal law of Canada is under the exclusive legislative jurisdiction of the federal government. The power to enact criminal law is derived from section 91 of the Constitution Act, 1867...
prior to being
sentencedIn law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
. A person may be released by a peace officer or by the
courtsThe court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial....
. A release on
bailTraditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
by the courts is officially known as a
judicial interim release. There are also a number of ways to compel a person's appearance in court without the need for an
arrestAn arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
and release. The Canadian constitution guarantees the right not to be denied reasonable bail without just cause. Unlike some other jurisdictions, there are no bondsmen or bail insurance policies in Canada.
History
The Canadian law of bail originates from the British legal tradition (see main article: Bail In England and Wales). The first major Canadian legislation with respect to bail was in the criminal legislation package of 1869; in that law, the federal government made bail discretionary for all offences. This provision was subsequently subject to much judicial interpretation, but the next major statutory change to bail in Canada was the 1960
Canadian Bill of RightsThe Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
which provided for a "right to reasonable bail" in s. 2(f); this provision was subsequently used by the courts to rule, for the first time, that the Extradition Act included a right to bail. In the early 1970s, the procedure for granting bail in Canada was completely revised by the
Bail Reform Act. This act placed the onus for justifying an accused's detention on the prosecutor, gave police new powers to release persons charged with an offence prior to their coming before a justice, and created detailed procedures for bail reviews. In 1982, the
Canadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
enshrined the right to bail in the Canadian constitution; s. 11(e) stipulated that "any person charged with an offence has the right ... not to be denied reasonable bail without just cause". This was subsequently used by the
Supreme Court of CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
, following decisions by the
Quebec Court of AppealThe Court of Appeal for Quebec is the highest judicial court in Quebec, Canada....
, to strike out bail provisions of the
Criminal Code of CanadaThe Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
which the court deigned to be excessively vague in
R. v. MoralesR. v. Morales, [1992] 3 S.C.R. 711, is a leading case decided by the Supreme Court of Canada. The Court found that the "public interest" basis for pre-trial detention under section 515 of the Criminal Code violated section 11 of the Canadian Charter of Rights and Freedoms, the right not to be...
.
Summons
A
provincial courtThe Provincial and Territorial Courts in Canada are local trial "inferior" or "lower" courts of limited jurisdiction established in each of the provinces and territories of Canada. These courts typically hear criminal, civil , family, traffic, and bylaw cases...
judgeA judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
or a
justice of the peaceA justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...
can issue a
summonsLegally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
requiring an accused to appear in court on a given date. The summons can also indicate when a person is required to report for fingerprinting and a
mug shotA mug shot, mugshot or booking photograph, is a photographic portrait taken after one is arrested. The purpose of the mug shot is to allow law enforcement to have a photographic record of the arrested individual to allow for identification by victims and investigators. Most mug shots are two-part,...
. Failure to comply with the summons can result in an arrest warrant and further charges.
Appearance notice
If a police officer is satisfied on reasonable grounds that an arrest is not necessary to establish the identity of the person, secure or preserve evidence, or prevent the continuation of the offence or the commission of another offence, they can issue the person an
appearance notice instead of arresting them (provided that the offence is a summary conviction offence, a
hybrid offenceA hybrid offence, dual offence, Crown option offence, dual procedure offence, or wobbler are the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as indictment...
, or an offence found in
section 553 of the
Criminal Code of CanadaThe Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
).
Like a summons, an appearance notice directs the accused to appear in court on a given date, and to report for fingerprinting and mug shots. Failure to comply with the appearance notice can result in an arrest warrant and further charges.
Release by police
Police officers have a number of options to release an accused subsequent to their arrest but without having to attend court for a bail hearing.
Summons
A police officer can release the person without charging them, with the intention to subsequently serve a summons (as described above).
Promise to appear
The
officer in charge of the place the accused is being held in custody can issue a
promise to appear. This is very similar to an appearance notice.
Recognizance
Recognizances are described in more detail below. The maximum amount of a recognizance entered into before an officer in charge is $500 (
CADThe Canadian dollar is the currency of Canada. As of 2007, the Canadian dollar is the 7th most traded currency in the world. It is abbreviated with the dollar sign $, or C$ to distinguish it from other dollar-denominated currencies...
) with no sureties. This can be paid in cash (refundable if the accused complies with the terms of the recognizance), but alternatively a "no cash" recognizance can be used - in this case the accused is not required to put up any money up front but is liable for the amount of the recognizance if (s)he fails to comply with the terms.
Undertaking to an officer in charge
The accused can enter into an
undertakingUndertaking may refer to:* The task performed by a funeral director* In business, in particular in "EU English", the term is used interchangeably with Company, i.e. a business entity...
to an officer in charge to abide by certain conditions while they are on a release. An undertaking is entered into in addition to any other type of release before an officer in charge. An undertaking can have one or more of the following conditions:
- to remain within a territorial jurisdiction,
- to notify the officer of any change of address
An address is a collection of information, presented in a mostly fixed format, used for describing the location of a building, apartment, or other structure or a plot of land, generally using political boundaries and street names as references, along with other identifiers such as house or...
, employmentEmployment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...
, or occupation,
- to abstain from communicating
Communication is the activity of conveying meaningful information. Communication requires a sender, a message, and an intended recipient, although the receiver need not be present or aware of the sender's intent to communicate at the time of communication; thus communication can occur across vast...
directly or indirectly with certain individuals,
- to abstain from attending certain locations,
- to deposit their passport
A passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
,
- to abstain from possessing any firearm
A firearm is a weapon that launches one, or many, projectile at high velocity through confined burning of a propellant. This subsonic burning process is technically known as deflagration, as opposed to supersonic combustion known as a detonation. In older firearms, the propellant was typically...
and to surrender any firearms licenses,
- to report at certain times to the police,
- to abstain from the consumption of alcohol
In chemistry, an alcohol is an organic compound in which the hydroxy functional group is bound to a carbon atom. In particular, this carbon center should be saturated, having single bonds to three other atoms....
or other intoxicating substances,
- to abstain from the consumption of drugs
The Controlled Drugs and Substances Act is Canada's federal drug control statute. Passed in 1996 by the Chrétien government, it repeals the Narcotic Control Act and Parts III and IV of the Food and Drug Act and establishes eight Schedules of controlled substances and two Classes of precursors...
except in accordance with a medical prescriptionA prescription is a health-care program implemented by a physician or other medical practitioner in the form of instructions that govern the plan of care for an individual patient. Prescriptions may include orders to be performed by a patient, caretaker, nurse, pharmacist or other therapist....
, and
- to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any victim or witness.
Failure to comply with the undertaking is a criminal offence.
Timing
If an accused is not released by the police, he or she must be brought before a provincial court judge or a justice of the peace without unreasonable delay and in any event within 24 hours of the arrest, unless a justice is not available in that amount of time in which case the accused must be brought before a justice as soon as possible. If the offence is one found in
section 469 of the
Criminal Code of Canada (
murderMurder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
,
treasonIn law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
, etc.), the accused is automatically detained so that he or she can be dealt with as described below. Otherwise, the judge or justice of the peace can hear the bail hearing.
The hearing may be
adjournedAn adjournment is a suspension of proceedings to another time or place. To adjourn means to suspend until a later stated time or place.-Law:In law, to adjourn means to suspend proceedings to another time or place, or to end them....
by the defence, the
prosecutorCrown Attorneys or Crown Counsel are the prosecutors in the legal system of Canada.Crown Attorneys represent the Crown and act as prosecutor in proceedings under the Criminal Code of Canada...
, or the court. However, if the defence does not consent to the adjournement, the bail hearing can only be adjourned up to 3 days. If the bail hearing is adjourned, the court may order the accused not to communicate with certain individuals while he or she is detained.
Justification for detention
In Canada, there are only three grounds for detaining an accused prior to sentence. They are commonly referred to as primary grounds, secondary grounds, and tertiary grounds.
Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court. Considerations include the accused's criminal history, their behaviour in the matter before the court, their connections (or lack of) with the jurisdiction, and the type of offences before the court.
Secondary grounds refers to whether detention is necessary for the protection or safety of the public. This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice.
Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice, and is generally reserved for very serious offences. The four factors to consider are:
- the apparent strength of the prosecutor's case,
- the seriousness of the offence,
- the circumstances surrounding the offence, including whether a firearm was used, and
- if found guilty, whether the accused is liable to a potentially lengthy term of imprisonment, or if a firearm was involved, faces a minimum of 3 year of jail.
Burden of proof
Generally, the prosecutor has the burden to show on a balance of probabilities why the accused should be detained. However, the accused has the burden to show why he or she should be released if they are charged with the following offences:
- an offence committed while at large on a release,
- an offence committed at the direction or in association with a criminal organization,
- a terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
offence,
- certain offences under the Security of Information Act
In Canada, the Security of Information Act is part of the Canadian Anti-Terrorism Act which received Royal Assent on December 18, 2001 and came into effect on December 24, 2001. This Act renamed and replaced Official Secrets Act 1981...
,
- a weapons trafficking offence,
- certain violent
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
offences (including attempted murder) where a firearm was used,
- an offence that involved a firearm, crossbow
A crossbow is a weapon consisting of a bow mounted on a stock that shoots projectiles, often called bolts or quarrels. The medieval crossbow was called by many names, most of which derived from the word ballista, a torsion engine resembling a crossbow in appearance.Historically, crossbows played a...
, restricted weapon, or prohibited weapon while under a weapons prohibition,
- any offence if the accused is not an ordinary resident of Canada,
- an offence of failing to comply with release conditions or failing to attend court, or
- certain offences under the Controlled Drugs and Substances Act
The Controlled Drugs and Substances Act is Canada's federal drug control statute. Passed in 1996 by the Chrétien government, it repeals the Narcotic Control Act and Parts III and IV of the Food and Drug Act and establishes eight Schedules of controlled substances and two Classes of precursors...
that carry the possibility of a life sentence.
The prosecutor is not required to show cause why an accused should be detained, and may consent to the release of an accused. Similarly, the accused may concede that the prosecutor can show cause (or if the accused has the burden of proof, indicate they do want to show cause why they should be released) and consent to their detention.
If an accused is ordered detained, the court may order that they not communicate with certain individuals while they are in custody awaiting their trial and sentencing.
Evidence
The standard of evidence in a bail hearing is
trustworthy and credible, and can include
hearsayHearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
. This can include a summary of the alleged offence and any witness statements. The court is allowed to consider other offences the accused has been charged with but is still awaiting trial for.
As with all other criminal proceedings, it is optional for the accused to testify. If the accused does testify, he or she cannot be
cross-examinedIn law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
on the offence before the court unless the accused testifies about the offence itself. This only applies to the offence the accused is charged with and not with other offences committed by the accused. The rule does not apply to any other witnesses in the hearing.
Types of release
If the court is satisfied that the accused should be released, there are a number of options available:
Undertaking
A basic
undertaking only requires the accused to appear in court as directed by the undertaking. The court may also impose further conditions as described below. Failure to comply with the undertaking is a criminal offence.
Recognizance without sureties and without deposit
A
recognizanceIn some common law nations, a recognizance is a conditional obligation undertaken by a person before a court. It is an obligation of record, entered into before a court or magistrate duly authorized, whereby the party bound acknowledges that he owes a personal debt to the state...
requires an accused to follow certain conditions with a financial penalty if they are not followed. If there are no conditions, then the recognizance just requires the accused to attend court as directed by the recognizance. The recognizance can be for any amount the court determines would be appropriate based on all of the circumstances (the accused's financial situation, the circumstances of the offence, the likelihood of the recognizance not being complied with, etc.).
If the recognizance is not complied with, a judge can order the accused to be
liableJudgment Debtor, in English or American law, a person against whom a judgment ordering him to pay a sum of money has been obtained and remains unsatisfied...
to the Crown for an amount up to the amount of the recognizance. The accused can also face further criminal charges.
Recognizance with sureties and without deposit
The court may require that
suretiesA surety or guarantee, in finance, is a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults...
be added to the recognizance. Sureties are jointly and severally liable for the amount of the recognizance. The court has the ability to name specific individuals as sureties.
Sureties are allowed to apply to the court to be relieved of their obligations. This will usually result in the accused being arrested and held for a new bail hearing.
Recognizance with deposit
If the accused is not an ordinary resident of the
provinceThe provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
where they are in custody, or they do not ordinarily reside within 200 kilometres of where they are in custody, the court can require that they deposit a sum of money or valuable security, which they will not get back until their matter is disposed of. Sureties are an option in this situation.
If the accused is an ordinary resident, they can make a deposit instead of requiring sureties, provided the prosecutor consents to such an arrangement.
Conditions of release
If the court releases a person on bail, they can require the accused to comply with one or more of the following conditions:
- report at a certain time to the police,
- remain within the territorial jurisdiction,
- notify the police of any change of address, employment, or occupation,
- abstain from communicating, directly or indirectly with certain individuals,
- refrain from attending certain locations,
- deposit their passport,
- comply with any other condition the court considers necessary to ensure the safety of any victim or witness, and
- comply with any other reasonable condition the court considers desirable.
If the accused is charged with one of the following offences, the court is required to prohibit the accused from possessing any firearm, crossbow, restricted weapon, or prohibited weapon, unless the court considers that such an order is not required:
- an offence with the commission of violence, attempted violence, or the threat of violence,
- a terrorism offence,
- criminal harassment
Harassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behaviour intended to disturb or upset, and it is characteristically repetitive. In the legal sense, it is intentional behaviour which is found threatening or disturbing...
,
- intimidation
Intimidation is intentional behavior "which would cause a person of ordinary sensibilities" fear of injury or harm. It's not necessary to prove that the behavior was so violent as to cause terror or that the victim was actually frightened.Criminal threatening is the crime of intentionally or...
of a justice system participant (victim, witness, etc.),
- certain offences under the Controlled Drugs and Substances Act,
- an offence that involves a firearm, crossbow, restricted weapon, or prohibited weapon, or
- certain offences under the Security of Information Act.
If the accused is charged with one of the following offences, the court is required to consider whether conditions are necessary to protect the victim or witnesses of the offence:
- a terrorism offence,
- criminal harassment,
- intimidation of justice system participant,
- an offence with the commission of violence, attempted violence, or the threat of violence, or
- certain offences under the Security of Information Act.
Publication bans
Either party can request a
publication banA publication ban is a court order which prohibits the public or media from disseminating certain details of an otherwise public judicial procedure. In Canada, publication bans are most commonly issued when the safety or reputation of a victim or witness may be hindered by having their identity...
on all evidence and reasons given in a bail hearing until the charges are resolved. If the publication ban is requested by the defence it is automatic.
For a period of time the automatic publication ban was found to infringe Section two of the Canadian Charter of Rights and Freedoms#Freedom of expression by the Court of Appeal for Ontario. As a remedy, the Court found that the automatic publication ban should be limited to when there is a possibility of a
juryA jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
trial, and will expire if that possibility is eliminated at some point in the proceedings. However, this case was overturned on a subsequent appeal to the
Supreme Court of CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
which held that while the provision infringed s. 2 of the Charter it should be upheld under Section 1 of the Canadian Charter of Rights and Freedoms.
Revocation of bail
If a police officer has reasonable grounds that an accused has or is about to contravene any type of release (including summons and appearance notices), they can arrest the individual. If the prosecutor proves a contravention of the conditions on a balance of probabilities the court must revoke the original release order. If the court revokes the release order a new hearing is held and the accused bears the onus on a balance of probabilities to show cause why detention is not necessary.
Bail can also be revoked by the trial judge under section 523 of the
Criminal Code of CanadaThe Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
on application by the Crown or, in limited circumstances, on the court's own motion. Where the accused is released on a surety bond, the surety may apply to the court for an order to be removed. The consequence results in the accused being arrested and facing a bail hearing as though he or she has just been arrested for the original offence.
Bail variation
A recognizance or undertaking can be varied at any time with the written consent of the prosecutor.
An order for release or detention can be vacated and replaced without a review or appeal being required in the following situations:
- by the trial judge,
- after completion of the preliminary hearing
Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...
(except for an offence found under section 469 of the Criminal Code of Canada), or
- with the consent of the defence and prosecution.
Application for review
If and when the court makes an order for the release or detention of the accused, or varies such an order, either party can bring an application to a superior court judge to review the order, and if necessary vacate and replace it. Once a decision is made, both parties must wait 30 days before being allowed to make another application.
Automatic review
If an accused is ordered detained (either at a bail hearing or after a bail review application), an automatic bail review is made by a superior court judge after a prescribed period of time. For summary conviction offence, the period is 30 days from the date the detention order was made. For indictable offences, the period is 90 days from the date the detention order was made. Besides being able to vacate and replace the order, the judge can also make directions to expedite the accused's trial.
Enforcement of automatic review
Since s. 525, the automatic review provision, is addressed the institution head holding the accused, an accused cannot invoke the provision directly. If the institution head has not brought the accused before a superior court of criminal jurisdiction, the accused may apply for either a writ of
habeas corpus is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
or
mandamusA writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
to compel the institution head to comply with the provision. A breach of this provision by an institution head will not lead to a finding of lack of jurisdiction over the accused.
Awkward wording of legislation
In the second edition of the Law of Bail in Canada, Professor Trotter (as he was then) noted a few inconsistencies in the bail review provisions. Under s. 520 and 521, a bail review is made to a "judge" against the decision of a "justice." Yet s. 520 and 521 permit successive reviews and specifically authorizes the admission into evidence any transcripts of previous bail reviews. Courts have resolved this dispute by resorting to the principles of
statutory interpretationStatutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
. It was found that the intent of Parliament was to permit either the accused or the Crown to seek review of a decision of a justice or judge as a successive bail review.
Also the definition of "judge" under Part XV (Compelling Appearance) is not consistent across Canada. For all jurisdictions, "judge" includes a "judge of a superior court of criminal jurisdiction." However, for a few jurisdictions the definition of "judge" also includes a "judge of the court of appeal." Therefore, in some jurisdictions an accused or the Crown has the option of seeking review of bail decision by a judge of the court of appeal. Jurisdictions with no appeal to the court of appeal may only seek review of the decision by either a successive application or by direct appeal to the
Supreme Court of CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
under section 40 of the
Supreme Court ActThe Supreme Court Act is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the Supreme and Exchequer Courts Act...
.
Section 469 offences
Offences found in
section 469 of the
Criminal Code of Canada (murder, treason, etc.) are heard differently. The bail hearing is before a superior court judge, and the accused has the burden of proof. A review is heard by the Court of Appeal.
Youth
Generally, bail hearings for
youthCanada's Youth Criminal Justice Act is a Canadian statute, which came into effect on April 1, 2003. It covers the prosecution of youths for criminal offences...
have the same way of proceeding as adult bail hearings, with a few exceptions.
Courts are prohibited from detaining youth prior to sentencing as a substitute for appropriate child protection, mental health, or other social measures.
Detention for secondary ground purposes (i.e. protection or safety of the public) is presumed to be unnecessary unless the young person faces the possibility of jail time for the offence. Specifically, one or more of the following factors must exist for the presumption not to apply:
- the offence is violent offence,
- the youth has failed to comply with non-custodial sentences (which is different from not complying with bail orders), or
- an adult could face 2 or more years of prison, and the youth has a pattern of findings of guilt.
If the youth would normally be detained by the court after an adult bail hearing, the court must then inquire as to whether there is a
responsible person who can exercise control over the young person (and that the young person is willing to be placed in that person's care). If so, both the responsible person and the young person enter into an undertaking with conditions.
It is a criminal offence for the young person to not comply with the undertaking. Unlike a surety, the responsible person faces no financial penalty. Instead, the responsible person also faces a criminal offence if they wilfully fail to comply with the undertaking.