Yes—bail is possible, but it’s rare. Here’s how it works, who decides, and what a judge looks at

By James Murray
Category: Legal | Courts 101

Thunder Bay – In Canada, a person charged with murder can apply for bail. But the bar is high and the rules are different from most other offences.

This is an area that confuses many people. It also in some cases makes or breaks the opinion that some in our community have of the courts. The number of times someone commits a crime and breaches the conditions of their release, make many people feel that the courts are not working.

So lets look at the facts and the realities that the courts in Canada must follow:

First: What is Murder under the Criminal Code of Canada?

In Canadian law, murder is a type of culpable homicide. The Criminal Code says a homicide is murder when a person means to cause death, or means to cause bodily harm they know is likely to cause death and is reckless about whether death happens (s.229).

You don’t have to plan to kill for it to be murder—knowing your actions could likely cause death and going ahead anyway can meet the legal test. This is why in growing numbers, too few in my opinion, a drug dealer who sells drugs to a person who overdoses and dies can be charged with murder, I digress…

Degrees of Murder (s.231)

First-degree murder

• Planned and deliberate killings; or

• Murders committed in specific circumstances set out in the Code (for example, the murder of a peace officer or jail guard), or while committing or attempting certain serious offences such as kidnapping/forcible confinement, hostage-taking, hijacking, and the major sexual assault offences.

• In these listed situations, even if the killing wasn’t “planned and deliberate,” the law classifies it as first-degree because of how and when it happened.

Second-degree murder

• All other murders that don’t meet the first-degree rules.

• The intent standard is the same (you meant to kill, or meant to cause bodily harm you knew was likely to kill and were reckless).

Penalties and Parole (ss.235, 742.1, 745–745.4)

• Both first- and second-degree murder carry a mandatory sentence of life imprisonment.

• The difference is parole ineligibility:

  • First-degree: 25 years before the person can even apply for parole.

  • Second-degree: Judge sets between 10 and 25 years, based on the case (facts, aggravating/mitigating factors, victim-impact statements).

• “Life” means lifelong supervision. Parole, if ever granted, can be revoked.

(Youth (12–17) are sentenced under the Youth Criminal Justice Act; adult sentences for murder are possible only after a special application and are rare.)

Related Offences

• Attempted murder (s.239): Trying to kill someone, even if death doesn’t happen. Very serious penalties (up to life in some circumstances).

• Accessory/party liability (ss.21–23): You can be guilty as a party (helping, encouraging) or as an accessory after the fact (helping someone escape justice), depending on your role.

Defences and Partial Defences (high-level)

• Self-defence (s.34): Can fully justify a killing if the legal test is met (reasonable perception of force or threat, purpose of defence, and reasonable response given the circumstances).

• Provocation (s.232): In limited, narrow circumstances, provocation can reduce murder to manslaughter. Since 2015 reforms, the provocative act generally must be a serious criminal wrong (not mere insults or jealousy).

• Intoxication/mental disorder: In rare cases, intoxication may affect the specific intent needed for murder; not criminally responsible (NCRMD) is a separate regime where a mental disorder made the person incapable of appreciating their act or knowing it was wrong.

How Murder Differs from Manslaughter and Infanticide

• Manslaughter (s.234): An unlawful killing without the specific intent for murder—for example, death caused by a sudden unlawful act or criminal negligence. No mandatory minimum (except where a firearm is used), and the judge has broad sentencing discretion.

• Infanticide (s.233): A biological mother causing the death of her newborn in circumstances tied to psychological disturbance after birth. It has a lower maximum penalty than murder.

Who decides bail on a murder charge?

• Only a Superior Court judge can hear a bail application for murder (a “section 469” offence under the Criminal Code).

• The application is made under section 522 of the Criminal Code. A provincial court justice can’t release someone on a murder charge.

Is there a presumption of release?

• For most crimes, the Crown must justify detention.

• For murder, it’s a “reverse onus.” The accused must show why detention is not justified. That makes release legally possible but uncommon.

What test does the judge use?

The judge applies the three public-interest grounds in s.515(10) of the Criminal Code:

1. Primary ground – Will the person show up for court?

2. Secondary ground – Public safety: Is there a substantial likelihood of reoffending or interfering with justice (e.g., witnesses)?

3. Tertiary ground – Confidence in the administration of justice, considering:

   • Strength of the Crown’s case

   • Gravity of the offence

   • Circumstances (e.g., use of a weapon)

   • Potential sentence (for murder: life imprisonment, with parole ineligibility set by the trial judge—10 to 25 years for second-degree)

Because murder is the most serious offence with a mandatory life sentence, the tertiary ground is often central.

So while an accused person can apply for bail, the reality in most cases is that a judge granting bail is not likely.

What can a release look like?

If a judge grants bail, conditions are typically strict, for example:

• Surety-supervised release (a responsible adult pledges money and supervises)

• House arrest or tight curfew, electronic monitoring, travel limits

• No-contact orders, no weapons, counselling, reporting to police

• Cash deposit/pledge as part of a release order

Judges must also follow the Supreme Court’s “ladder principle” (use the least onerous form that manages risk) but, in murder cases, that often still means very tight controls.

How fast does this happen?

• After arrest, the accused sees a justice promptly (often within 24 hours), but a murder bail under s.522 usually needs time to prepare (evidence, surety plans, proposed conditions).

• Either side can seek a publication ban on the bail hearing under s.517, to protect fair-trial rights.

Do background factors matter?

Yes. Under s.493.2, judges must consider the circumstances of Indigenous accused and other vulnerable populations(e.g., systemic and background factors) when making bail decisions. That doesn’t guarantee release; it ensures the analysis is fair and complete.

Bottom line

• Eligibility: Yes, a person charged with second-degree murder can apply for bail.

• Reality: It’s a reverse-onus hearing before a Superior Court judge, and detention is common unless the defence shows a solid plan that addresses attendance, public safety, and broader public confidence.