Reverse Onus Bail: How It Affects Your Rights

In most Canadian criminal cases, when someone is charged and held in custody, it is the Crown’s responsibility to justify why that person should be denied bail. However, in certain situations, the legal burden shifts to the accused. This is known as reverse onus bail. Instead of the Crown proving why you should be detained, you must prove to the court why you should be released.

Reverse onus bail applies in specific circumstances outlined in the Criminal Code of Canada, and it often involves more serious offences or situations where public trust and safety are at greater risk. Understanding how reverse onus works is crucial, as the consequences of failing to meet this burden can mean remaining in custody until trial.

This article explains what reverse onus bail is, when it applies, what the accused must demonstrate, and how a criminal defence lawyer can help prepare and present a successful release plan.

What Is Reverse Onus Bail?

Reverse onus refers to a legal shift in responsibility. In a typical bail hearing, the onus is on the Crown to demonstrate that the accused should be kept in custody pending trial. But in reverse onus situations, it is up to the accused to convince the court that they can be safely released into the community.

The reverse onus provision changes the dynamic of the bail hearing significantly. The accused must present a solid plan that addresses all concerns the court may have, including risk of flight, public safety, and confidence in the justice system.

When Does Reverse Onus Apply?

Reverse onus applies in specific cases set out in section 515(6) of the Criminal Code. These include:

• Accused already on release for another indictable offence at the time of the current offence

• Firearm-related charges, including using a firearm in the commission of an offence

• Drug trafficking or importing offences under the Controlled Drugs and Substances Act

• Terrorism-related offences

• Criminal organization offences

• Failure to comply with previous court orders

• Breach of conditions related to domestic violence allegations, particularly involving intimate partners

• Certain offences committed while out on bail

Additionally, reverse onus applies to secondary releases on bail—meaning if someone has already been released once and is applying again due to breach or revocation.

The Legal Test in a Reverse Onus Bail Hearing

When facing a reverse onus hearing, the accused must prove to the court, on a balance of probabilities, that:

• They will attend all court dates (primary ground)

• They do not pose a risk to public safety or reoffending (secondary ground)

• Their release will not bring the administration of justice into disrepute (tertiary ground)

The court will assess the nature of the allegations, the strength of the Crown’s case, the accused’s criminal record, their ties to the community, and the release plan presented.

Because the burden is higher on the accused in these hearings, preparation and legal advocacy are key.

How a Defence Lawyer Builds a Strong Release Plan

A strong release plan is the foundation of a successful reverse onus bail hearing. A criminal defence lawyer will work with the accused and their family to develop a detailed plan that addresses the court’s concerns.

This plan may include:

• Securing a surety: A responsible person who will supervise the accused and ensure compliance

• Setting conditions: Such as a curfew, no-contact orders, travel restrictions, or abstinence from substances

• Proposing monitoring tools: Including electronic monitoring, regular reporting, or check-ins

• Highlighting rehabilitation efforts: Enrolment in counselling, substance abuse programs, or community supports

• Establishing community ties: Employment, school attendance, or family responsibilities

The lawyer will also prepare the surety to testify in court, ensure all documentation is complete, and anticipate questions the Crown may raise.

What Happens if You Fail to Meet the Reverse Onus?

If the accused is unable to satisfy the court that release is justified, they will remain in custody pending the outcome of their charges. In serious cases, this could mean spending months or even years in remand before trial.

Pre-trial custody can affect an accused’s ability to work, support their family, and prepare a full defence. It can also result in harsher plea deals or pressure to resolve the matter quickly, even if the accused is innocent.

This is why it is critical to approach reverse onus hearings with strategic preparation and the support of experienced legal counsel.

Can You Appeal a Denied Reverse Onus Bail Decision?

Yes. If bail is denied at a reverse onus hearing, the accused has the right to apply for a bail review at the Superior Court of Justice. The reviewing court can reconsider the original decision, especially if new evidence is available, a legal error occurred, or circumstances have changed.

A bail review is a complex legal process and requires a written record, including transcripts from the original hearing. A criminal defence lawyer will file the application, gather supporting evidence, and argue for release under new or revised conditions.

Charter Rights and Reverse Onus

While reverse onus shifts the burden onto the accused, it must still comply with section 11(e) of the Charter, which guarantees the right not to be denied reasonable bail without just cause. Courts have confirmed that reverse onus provisions are constitutional, but they must be applied fairly and not lead to arbitrary detention.

If reverse onus is misapplied or results in unreasonable delay, your lawyer may file a Charter application to challenge the process and seek remedies, including a review of detention or exclusion of evidence.

Why Legal Representation Is Essential

Reverse onus bail hearings are legally complex and carry high stakes. Without proper representation, the chances of remaining in custody are much higher. A skilled criminal defence lawyer will:

• Identify whether reverse onus applies in your case

• Prepare a detailed and persuasive release plan

• Select and coach a reliable surety

• Argue the case effectively in court

• Challenge the Crown’s evidence and concerns

• Seek a bail review if the application is denied

The earlier you involve a lawyer, the better your chances of success.

Why Choose De Boyrie Law

At De Boyrie Law, we have extensive experience representing clients in reverse onus bail hearings across Ontario. We understand the legal thresholds involved, how to develop strong bail strategies, and how to advocate effectively for your release. Whether you are facing serious criminal allegations or applying for a second release, our team is here to help you secure your freedom and protect your rights.

Schedule a Free Consultation with De Boyrie Law

If you or someone you know is facing a reverse onus bail hearing, contact De Boyrie Law today for a free, confidential consultation. We’ll assess your case, build a strong release plan, and fight for your right to bail.