The vast majority of accused in Canada are released on bail with conditions pending the resolution of their case. As members of the court-room workgroup, the defence, the Crown, and the Justice of the Peace (JP) are tasked with negotiating a set of release conditions in a timely fashion; yet little work has attempted to understand how exchanges between these court-room participants shape the number and type of bail conditions imposed and how closely their in-court actions align with their legally mandated roles. Data collected from court-room observations of 257 bail cases in southwestern Ontario show that the distinct occupational roles of the defence, the Crown, and JPs are blurred within bail proceedings, contributing to a culture of numerous conditions and restrictive releases.

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Addressing criticism that bail blurs the line between prevention and punishment, the Supreme Court of Canada unanimously agreed “it is time to ensure that bail provisions are applied consistently and fairly” (R v Antic 2017 SCC 27, [2017] 1 SCR 509). Rather than reform bail, this decision simply reaffirmed the existing legal mandate: using the ladder principle, accused must be released with the fewest conditions necessary to prevent them from absconding, reoffending/interfering with the administration of justice, and/or bringing the criminal justice system into disrepute. We analyze 480 bail hearings in Ontario, Canada, that occurred pre- and post- the R v Antic decision. Our results reveal that justices are more attentive to the ladder principle post-Antic, such that more accused are released on their own recognizance than in the past. While post-Antic trends show a reduction in the use of certain behaviour-modifying conditions, bail supervision programs are used more frequently. We discuss the implications of these findings in light of Canada’s “broken bail system.”

Changes to Ontario's bail system (2017) are intended to keep accused out of custody and in the community as they await trial. For the Ministry of the Attorney General, living in the community while on bail is a vast improvement to remand because there is minimal state involvement in the lives of accused, resulting in fewer personal and administrative disruptions. Yet, most accused in the province require a surety to be released. Justices of the peace, Crowns, and even defense counsel expect sureties to act like civilian jailers, which questions the level of state intervention at this stage in the legal process. Previous scholarship on bail attributes the overuse of surety releases to a culture of risk aversion whereby the courts offload responsibility and blame for the accused's actions onto the surety. By exploring how court officials describe and determine who an appropriate surety is and the types of powers afforded to them, this paper argues that although sureties are legally obligated to supervise the accused, the court is still heavily involved in defining what this role looks like and how it should unfold outside the courtroom. The qualitative findings provide important insight into how criminally suspect individuals are governed in the province more generally.

Accused individuals employ various techniques in response to the challenges posed by living with bail conditions. By asking ‘what advice would you give to an accused individual who must appear in bail court and who will be assigned conditional bail’, this study assesses how individuals navigate release on bail in the community. A thematic analysis of interviews with 108 accused yielded three master themes: ‘abiding by the system’; a ‘broken system’; and ‘working the system’. The findings add to current research by identifying points of similarity, but also difference, in how common discourses used by bail court actors and bail scholars – including responsibilisation, self‐governance, and accountability – are responded to by accused. The results reveal how individuals accused of a crime find ways to assume a more advantageous position within a system largely perceived as working against them.