Duhaime's Law Dictionary


Bail Definition:

The pledge of cash or property to secure the release of a thing or person which would otherwise be held in custody.

Related Terms: Judicial Interim Release, Bailee, Bailiff, Bailment, Bailor, Mainprize

Criminal law

A commitment made (and possibly secured by cash or property) to secure the release of a person being held in custody and suspected of a crime, to provide some kind of guarantee that the suspect will appear to answer the charges at some later date.

In Canadian criminal law, the term interim judicial release is inclusive of the more common term of bail. As to the distinction between the two, Chief Justice Lamer of Canada's Supreme Court wrote, in R v Pearson:

"Bail must refer to all forms of what is formally known under the Criminal Code as judicial interim release. In common parlance, 'bail' sometimes refers to the money or other valuable security which the accused is required to deposit with the court as a condition of release....

... most accused are released on less onerous terms. In order to be an effective guarantee, the meaning of bail in (the Criminal Code) must include all forms of judicial interim release."

In R v Yue, a 2007 decision of the Ontario Court of Appeal, Justice McPherson used these words:

"... bail is not jail. (B)ail is what an accused person seeks in order to stay out of jail.

"In saying this, I do not suggest that bail is not a restraint on the liberty of an accused person. It is a restraint and, where there are strict bail conditions, it can be a serious restraint. However, ... there is a fundamental difference between bail and jail. The natural meaning of these words - known at a practical, common sense level by all accused persons who seek bail - is that the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty."

Maritime Law

Security provided to the court by a defendant to prevent the arrest of a ship or cargo, or to secure its release from arrest.

The security typically takes the form of a bail bond, or letter of credit or letter of undertaking, that is usually equivalent in value to the claimant’s reasonably best arguable case, plus interest and costs.

Bail must not exceed the value of the item arrested.can be extended to the owner of a ship that has been arrested.

From §463 of the Canadian Encyclopedia Digest (CED):

"The court may, on motion, fix the amount of bail to be given for the release of arrested property.... In some cases, the amount of the statutory liability of the owners may have to be taken into account in fixing the security on release of the ship from arrest."

In Brotchie v. The 'Karey T', Canada's Federal Court wrote:

"The general rule in setting bail is that the Plaintiff is entitled to an amount sufficient to cover the amount of his reasonably arguable best case, together with interest and costs, capped at the value of the wrongdoing vessel.

"It is a generally accepted principle that the difficulty in ascertaining damages must not deter the courts from doing justice....

"(W)hen damages are difficult to estimate in money a judge must under such circumstances do the best it can ... even if the amount ... is a matter of guess work.

"I am mindful that an objective is not to tie up a commercial fishing vessel, by reason of an arrest and an overly large bail figure, during an upcoming salmon season. However the owner of an anchored vessel, struck by a vessel underway should not be penalized by inadequate bail."

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