Often, officers will take the view that a person is releasable in theory, but they want more stringent conditions than would be imposed by an undertaking. They will have the person held for a Show Cause Hearing or, what is commonly called, a Bail Hearing.
Under the criminal code, the police have to get a person before a judge or justice of the peace for their bail hearing as soon as practicable or no later than within 24 hours. The reality is sometimes a little bit different. Often the time period is significantly longer than 24 hours when there is a mass arrest and the courts are overloaded. Another problem occurs when you are brought to court within the 24 hours, but the court is so backlogged by bails from the previous day or that day or from the weekend, that they have no time to hear your bail. That is a very common problem and my firm has brought a number of challenges and applications which are slowly leading to badly-needed bail reform.
This is one of the primary reasons why it is urged that people retain their own lawyer for a bail hearing. If you don’t retain private counsel, you’re going to be subject to a very overworked and often very harassed duty counsel system. There are excellent lawyers within the duty counsel system, but they are trying to deal with everybody who is unrepresented and who was arrested on the proceeding day and sometimes even longer ago. It is fairly common for courts to give priority to privately retained counsel and process their bail hearings first. We tell our clients that there is definitely an advantage to retaining your own private lawyer who’s going to advocate only for you and not for the 30 or 40 people that he or she has to see that day. We do our very best to ensure that your hearing gets heard as early as possible.
There are bail courts 365 days a year, 7 days a week. So there is a Saturday bail court, a Sunday bail court, a Christmas day bail court. Our office is available 7 days a week, 365 days a year, and we will get somebody down there for a bail hearing if it becomes necessary and will insist on conducting it. There’s no reason why a person who is presumed innocent and who is releasable under the law ought to spend extra days in custody, simply because they have the misfortune of being arrested on a busy Friday night.