Not every arrest in Ontario leads to a bail hearing in front of a justice of the peace or judge. In many cases, police have the authority to release a person directly from the police station, with a written promise to attend court and, often, a list of conditions to follow in the meantime. This is sometimes called "police bail," and it is the most common way that people charged with less serious offences make their way back into the community while their case proceeds. This page focuses specifically on how the police-release decision works and the documents involved. For a broader look at what happens immediately after an arrest, including when a bail hearing becomes necessary instead, see our guide to arrest and release in Ontario.
Since 2019, federal reforms under Bill C-75 simplified and modernized the release documents police use and added an explicit "principle of restraint," directing police to release a person at the earliest reasonable opportunity, on the least restrictive conditions appropriate, rather than default to detention. That legal framework still applies today, and understanding it can help make sense of why some people are released quickly from the station while others are held for a bail hearing.
How Release by Police Fits Into the Process
When a person is arrested in Ontario, one of the first questions the investigating officer, and then the officer in charge at the station, must consider is whether the person can be released without being brought before a court at all. Release by police happens at the police station, usually within hours of arrest, and does not involve a hearing, a justice of the peace, or a Crown prosecutor arguing about detention. It is a decision made by the police themselves, guided by the Criminal Code and internal policy.
This is different from a contested bail hearing, where a justice of the peace decides whether a person should be detained or released, and on what conditions, after hearing from the Crown and the defence. Release by police is meant to be the default outcome for most charges, particularly less serious ones, with a bail hearing reserved for cases where police believe detention or a more thorough judicial review of release conditions is necessary.
The Documents Police Can Issue
Part XVI of the Criminal Code sets out several forms of release that police can use, depending on the circumstances. The specific document used affects what obligations a person is under and what happens if those obligations are not met.
- Appearance notice (Form 9). Used where a person is not arrested at all, or is released without being taken into custody, and simply requires them to attend court on a specified date. It generally does not carry additional conditions.
- Promise to appear (Form 8). A document a person signs after arrest, promising to attend court on a specified date. On its own, a promise to appear does not include conditions beyond attending court.
- Undertaking given to a peace officer (Form 10). This is the document most commonly used when police want to attach specific conditions to a release, such as reporting requirements, no-contact conditions, or restrictions on where a person can go. An undertaking is a formal promise, and failing to comply with it can lead to a separate charge. Our page on release conditions explains common condition types in more detail.
In some situations, a recognizance can also be used at the police station, particularly where a surety or a deposit of money is thought to be appropriate, though this is less common at the police-release stage than at a bail hearing before a justice. Our page on the role of a surety explains how sureties generally work in Ontario.
Conditions Police Can Attach
Since the 2019 reforms, police have express authority to attach a range of conditions to an undertaking, so long as the conditions are reasonable in the circumstances and connected to specific concerns, such as ensuring attendance in court or protecting a particular person. Conditions imposed by police can include reporting to a police station, staying away from a specified person or location, abstaining from alcohol or drugs, and, for many offences involving violence, a condition prohibiting the possession of weapons. Our page on weapons-related release conditions explains that topic in more detail. Conditions set at the police station tend to be narrower than conditions that can be imposed at a bail hearing, reflecting the more limited nature of police-level release decisions.
What Police Consider Before Releasing Someone
While the precise wording of the applicable Criminal Code provisions is technical, the practical factors police generally weigh before deciding whether to release someone directly, rather than hold them for a bail hearing, include the following:
- Confirming identity. Police generally need to be satisfied they know who they have arrested, which is part of why identification documents matter at this stage.
- Flight risk. Whether there is reason to believe the person will not attend court if released, based on ties to the community, prior history, and the circumstances of the arrest.
- Public safety. Whether releasing the person poses a risk to any specific individual or to the public generally, including the risk of further offences.
- Confidence in the administration of justice. Whether releasing the person without further conditions or judicial oversight would undermine public confidence in how serious the justice system treats the alleged conduct, particularly for more serious charges.
These are the same broad categories of concern that come up at a bail hearing, discussed in our guide to how bail hearings work in Ontario, but at the police-release stage they are assessed informally by the officer in charge rather than argued before a justice.
The principle of restraint. Police are directed to release a person at the earliest reasonable opportunity, using the least restrictive form of release appropriate to the circumstances, rather than defaulting to detention or to imposing more conditions than necessary. In practice, this means many people who are arrested for less serious matters, with no significant record and a stable address, can expect to be released fairly quickly from the station.
The 24-Hour Rule
If police do not release a person, section 503 of the Criminal Code requires that the person be brought before a justice without unreasonable delay, and in any event within 24 hours of arrest if a justice is available within that period. If no justice is available within 24 hours, the person must be brought before one as soon as possible afterward. This is sometimes described as the "24-hour rule," though it is more accurately a dual requirement: without unreasonable delay, and in any event within 24 hours where a justice can be reached. Courts have treated this obligation as strict, with very limited room for police convenience or scheduling to justify holding someone longer than necessary.
The point of this rule is to make sure that if a person is not released by police, responsibility for deciding whether they should be detained shifts promptly to a justice of the peace, rather than remaining indefinitely in the hands of police. Once a person is brought before a justice, the matter proceeds as a bail hearing, covered in detail in our guide to how bail hearings work.
Judicial Referral Hearings
A more recent option available for certain administration-of-justice offences, such as some breaches of conditions that did not cause harm to a specific victim, is a judicial referral hearing, which can be used by police and the Crown as an alternative to laying a new charge. This tool is meant to reduce the number of relatively minor breach allegations that flow into the formal charge and bail system, though it does not apply to every situation and is used at the discretion of police and the Crown. Anyone facing an alleged breach should still take the matter seriously; see our page on alleged breaches of release conditions for what typically happens next.
If Police Do Not Release You
If the officer in charge decides not to release a person, or believes a more restrictive form of release requiring judicial oversight is appropriate, the person is held for a bail hearing rather than released on a promise to appear or an undertaking. This does not mean the person will necessarily be detained; it means the release decision, including what conditions and possibly what sureties are needed, will be made by a justice of the peace rather than by police. Many people held for a bail hearing are still released, often on a consent basis agreed between the Crown and defence, without a fully contested hearing.
After You Are Released
Whether release happens through police or through a bail hearing, the resulting document, whether an undertaking, a promise to appear, or a recognizance, is legally binding. It sets out the court date and any conditions that must be followed until the case is resolved or the conditions are formally changed. Speaking with a lawyer promptly after release, even where the person feels the conditions are minor, is generally a good idea. A lawyer can review the paperwork, explain anything unclear, and advise on next steps, including how to access duty counsel or legal aid if needed.
Frequently Asked Questions
What is the difference between a promise to appear and an undertaking?
A promise to appear generally just requires attending court on a set date. An undertaking is used when police want to attach additional conditions, such as no-contact or reporting requirements, and carries its own obligations separate from the underlying charge.
Can police hold someone the full 24 hours as a matter of routine?
No. Section 503 requires a person to be brought before a justice without unreasonable delay, and 24 hours is an outer limit where a justice is available, not a default holding period.
Does release by police mean the charge is not serious?
Not necessarily. While more serious charges are more likely to result in a bail hearing rather than police release, the decision depends on the specific circumstances, the person's history, and the assessed risks, not solely on the classification of the offence.
Can conditions from a police undertaking be changed later?
Yes, generally through a consent process with the Crown or, if needed, a bail review. See our page on changing release conditions.
What happens if I miss my court date after being released by police?
Missing a court date after being released on a promise to appear or an undertaking can lead to a warrant for arrest and a separate charge of failing to appear, in addition to the original charge.
Is release by police the same as being found not guilty?
No. Release is a decision about whether someone should be held in custody while the case is ongoing. It has no bearing on guilt or innocence, which is decided later in the court process.