1. Pursuant to s. 515 of the Criminal Code, in most cases, you are presumed to be releasable unless the Crown can convince the Court otherwise.
If you have been charged with an offence and have been taken into police custody, then you will require a bail hearing to ensure you are released as you await the trial of the charges. The general rule is that an accused must be brought before the court for a meaningful bail appearance within 24 hours of their arrest which means that your hearing should happen within 24 hours of very soon thereafter. (The Courts are suffering from bail delay issues. For more information see R. v. Simonelli 2021 ONSC 354- a decision of a Superior Court of Justice ending the prosecution against Ms. Shikhman’s client on the basis of unreasonable bail delay.)
The principle of not being denied reasonable bail without just cause is guaranteed under the Charter of Rights and Freedoms. The law provides that the Crown or prosecutor bears the onus of proving that the accused should be held in custody, or detained, prior to trial. The presumption is that the accused should be released without any conditions and the Crown must satisfy the Court as to why any proposed conditions are reasonable and necessary.
There are exceptions to the general rule, the Criminal Code designates certain offences and circumstances[1] where the onus will be reversed, which results in the accused having to prove why they should be released from custody prior to trial. In other words, you are presumed not to be releasable, and must convince the Court as to why you should be released on the bail you are proposing.
An Accused charged with offences where the onus is reversed is still entitled to a speedy bail as a matter of right.
A separate category is Section 469 offences under the Criminal Code, which include treason, murder, piracy, accessory to murder and attempts to commit these offences will require a reverse onus standard for the bail hearing and the bail hearing is not automatically set, but rather an application needs to be brough in a Superior Court of Justice seeking release.
2. The Court considers specific criteria when determining whether to release on bail
In every bail matter where the Crown bears the onus, the Crown must take a position as to whether the accused is releasable. If their position is that the accused is not releasable, they will need to tell the Court the basis upon which the accused should be detained. There are three grounds to detain an accused: primary, secondary, or tertiary.
An accused can be detained on the primary ground only when the accused’s detention is necessary to ensure their attendance in court. If you have roots in the community and a surety that is pledging a sum of money, it is very unlikely that you would be detained on this ground.
The Court will detain on the secondary ground only where it is necessary for the protection or safety of the public or to preclude interference with the administration of justice. The question the Court must ask itself is whether there is a substantial likelihood that the accused would either reoffend of interfere with the administration of Justice if released from custody taking into account the specific conditions proposed. If the proposed plan of release would prevent a substantial likelihood of either, then the Court’s secondary ground concerns should be satisfied.
Finally, the tertiary ground permits the Court to detain the accused if they find it necessary to “maintain confidence in the administration of justice”. The court will consider all the circumstances, including:
- the apparent strength of the prosecution’s case,
- the gravity of the offence,
- the circumstances surrounding the commission of the offence, including whether a firearm was used, and
- the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
3. You do not always need a surety
Before a Court directs that the accused requires the supervision of a surety, the Court needs to satisfy themselves that a lesser form of release is not sufficient. In other words, if the accused does not require third-party supervision at all, or if they can manage with the supervision of the Toronto bail program (administered by provincial government), then they should be released on that plan.
If the Court does direct that a surety is required and unless the Court directs otherwise, the surety is required to complete and file with the court a “surety declaration form”. The form will set out:
- Their name, date of birth, contact information and employment information;
- Their relationship to the accused;
- The name and date of birth of any other accused for whom they act as a surety;
- Their acknowledgment of the charge, and of any other outstanding charges against the accused and the contents of the accused’s criminal record, if any;
- Their acknowledgment of the amount that they are willing to promise to pay or deposit to the court and that may be forfeited if the accused fails to comply with any condition of the release order;
- Their acknowledgment that they understand the role and responsibilities of a surety; and
- A description of their criminal record and any outstanding charges against them, if any.
4. You can apply to vary your bail conditions
If you are unhappy with the bail conditions imposed upon you at the conclusion of your bail hearing, you have two options available to you. The first is to ask the Crown Attorney to consent to a variation of your conditions. It may be that the Crown requires further material in order to consider and/or agree to your request. For example, should you wish to be able to speak to the complainant, the Crown may wish to receive input from that complainant and confirm that they would like contact with you. As a further example, you may wish to seek an exception to your house arrest or curfew condition to be able to go to work or school and may do so by providing to the Crown proof of employment/education.
The second option is to apply in writing to a reviewing court (the Superior Court of Justice) and ask the Court to Order that your conditions be varied. This is otherwise known as a “bail review”. A right to a bail review is not automatic. Rather, you must demonstrate that the lower court justice made a legal error, that the lower court gave inappropriate weight to one factor over another or that there has been a material change of circumstances (something either not available or known at the time of the original bail hearing).
5. What is the best course of action to take in case someone needs bail?
If you or someone you know may be arrested or has already been arrested and is being held for bail, you will want to consider whether to retain private counsel. Bail courts in Toronto are staffed with Duty Counsel (government funded lawyers) who are able to assist with bail. However, Duty Counsel are handling several matters daily, are impacted by resource constraints and may not take on very serious bail matters.
You should put potential sureties in contact with the lawyer that you choose so that the lawyer can interview them, prepare them for the bail hearing and complete with them the necessary paperwork. Your surety will be required to attend in Court (virtually or in person, depending on the form of the proceeding). Your lawyer will prepare you and your surety for what to expect at the hearing.
The lawyers at Bytensky Shikhman Barristers have significant experience conducting bail hearings in Toronto. Should you or someone you know be seeking a bail lawyer, please contact our office.
[1] The following offences and situations will require a reverse onus standard for bail hearings:
- An allegation that outstanding release order conditions were violated;
- Offences committed while already on bail for outstanding indictable offence;
- Offences committed for the benefit of a criminal organization;
- Terrorism offences;
- Certain firearm offences;
- Certain offences under the CDSA such as trafficking;
