What does “Bail” mean?
Bail is the temporary release of an accused person while their charges work their way through the court system towards a withdrawal of the charges, a resolution or a Trial. In Canada, what we call “Bail” is technically called Judicial Interim Release.
Bail hearings are for the most part conducted by a Justice of the Peace although Judges can sometimes preside over a Bail Hearing. A Justice of the Peace does not have to have a law degree. Usually, they are well educated people with relevant experience and are known to be upstanding members of our community.
A Bail Hearing is not a Trial. Whether a Judge or a Justice of the Peace, presides over a Bail Hearing, the question of guilt or innocence is NOT decided then. Instead, the issue is should the accused person be released back into the community while the case proceeds through the criminal court system.
If you’re denied Bail, you will be kept in custody while the case is ongoing unless you choose to apply to the higher courts for a Bail Review.
Is every accused always held for a Bail Hearing?
No, not every arrest results in a Bail Hearing. A person can be released from the police station. After an arrest is made, the police will look at different factors in deciding whether an accused person can be released from the police station on what’s called a “Promise to Appear” and an “Undertaking to An Officer in Charge”. Previous criminal record, seriousness of the charges, presence of other outstanding charges, are all factors considered by the police in deciding if the accused can be released from the station or if a Bail Hearing is necessary.
What happens at a typical bail hearing?
When the accused is brought into Bail Court, first thing to do is find out the Crown’s position. Meaning, is the Crown prepared to consent to a release o, and if so on what conditions. If the conditions requested by the Crown are reasonable and acceptable to the accused, then the Bail Hearing will be quick. The Justice will read out the agreed upon conditions and order the accused to appear in Court in a few weeks for a First Appearance.
Whether the conditions are agreeable depends on your circumstances. As such, it is very important for the lawyer who represents you to know your lifestyle and needs.
If the Crown takes the position that the accused should not be released, or if the parties cannot come to an agreement about the conditions, there will have to be a Bail Hearing (also referred to as a Show Cause Hearing).
First, the Crown presents the allegations to the Court. Most of the time, the Crown will do this by reading out the allegations found in the police synopsis. In some cases, the Crown will present the allegations by calling a witness (or witnesses) to testify in court. This witness will usually be the police officer in charge of the investigation.
After the allegations have been presented by the Crown, the accused’s lawyer or duty counsel has a chance to ask questions and present evidence. In most cases, witnesses called by the defence do not address the allegations of guilt or innocence of the accused, rather, the witnesses the defence presents relate to the proposed plan of release. Specifically, the defence would call people who are willing to act as sureties for the accused. (See “What is a Surety” later in this article)
When both sides are finished giving their evidence, submissions are made to the Justice of the Peace or a Judge who decides whether accused should be released on Bail and if so on what conditions. While most of the decisions are rendered the same day, sometimes, the complexity of the arguments necessitates a short adjournment for the Presiding Justice to consider the arguments made and come to a decision.
What things will the Presiding Justice consider?
The Judge or Justice of the Peace will consider all relevant factors including but not limited to:
- The accused’s criminal record (if any);
- The seriousness of the charges;
- The ability of the proposed surety or sureties to supervise the accused (if applicable);
- Protection of the public or the complainant;
- The likelihood that the accused might commit further offences if released; and
- The age, mental health, education and employment status of the accused.
In making their decision the Presiding Justice will also consider the “Grounds for Detention” as set out in s. 515(10) of the Criminal Code of Canada:
- To ensure that the accused will attend in court as required, and not “skip Bail” (called the “primary ground”);
- To protect the safety of the public, including victims or any person under 18, because it’s likely the accused will commit another offence if released (called the “secondary ground”); or
- “If the detention is necessary to maintain confidence in the administration of justice” (called the “tertiary ground”).
What is a Surety and is one always necessary?
A surety is a responsible person who undertakes to the Court to ensure that the accused person follows the conditions imposed on them. A surety must pledge an amount of money and demonstrate to the Court that they have the ability to pay in the event that the accused breaches the conditions.
The presumption in the Criminal Code is that a person with no outstanding charges will be released on their own Recognizance WITHOUT a SURETY AND WITHOUT conditions. That has not always been the case. CLICK HERE to read more about this issue.
What are some typical Bail conditions?
Bail conditions are rules that the accused must follow while they are out on bail. The conditions will vary, but they will be related to the charges the accused is facing.
For example, if the accused is charged with assault, the conditions will likely include:
- Not to contact the alleged victim;
- Not to go to the alleged victim’s home, workplace or school;
- Not to have any weapons (e.g. guns, knives etc.)
Other possible conditions may include house arrest (often with exceptions for court, medical appointments, work etc.), a curfew, a condition to reside with your surety, a condition to report to a probation officer or a condition to report a change of address or employment.
What makes a good surety?
Someone intending to propose themselves as a surety in Court should have/be:
- No criminal record;
- Be an adult (over the age of 19);
- Be able to supervise the accused to the degree required by the Court;
- An amount of money in savings or tied up in assets that they can pledge to the Court as security of their promise to ensure the accused person abides by their Bail conditions;
- A capacity to understand and enforce the conditions the Court imposes;
- An ability to attend court on the day of the Bail hearing in a punctual manner;
- An undertaking that they will contact the police should they learn that the accused person is breaching any of their Bail conditions; and
- An understanding that they may withdraw themselves as surety at any time.
Your surety is often required to “pledge” a certain amount of money to the court. In most cases, this means your surety promises to pay the court that amount of money if you do not follow your Bail conditions. In almost all circumstances, this money does not have to be paid upfront. If you do not follow your Bail conditions and your surety does not report you to the police, the Crown can apply to have your surety pay some or all of the money that they pledged into court. This process is called an “estreatment hearing”.
NOTE TO SURETIES: if you are planning to act as surety please CLICK HERE to see if the jurisdiction you are attending requires you to fill out any paperwork upfront.
Should you hire a lawyer for a Bail Hearing?
Often, when offered a release, most accused will accept the terms – no matter how stringent – since waiting for their turn to argue a contested bail hearing (where your bail lawyer attempts to persuade the Justice of the Peace that the conditions are not required in law) may mean spending a night in custody behind a long line of cases not yet reached by a busy Court.
Bail courts are often jammed. Duty counsel are spread thin. When not using the services of a private criminal lawyer on bail, one must try to resist the urge to accept restrictive conditions just to secure an immediate release. A concession that saves you time on the day of your bail hearing, could end up costing much more time, money and even your freedom (should you be charged with breaching conditions) months or years later as you remain on bail until your case has been completely decided by a trial or plea.
Can I change my Bail after my initial Bail Hearing?
Post Bail Hearing, there are only two ways to change any of the imposed conditions:
- Seek consent of the Crown, which is unlikely to happen right away since the Crown sought those conditions in the first place;
- By Bringing a Bail Review in Superior Court. This procedure requires private counsel, transcripts, court materials, and is both time consuming and costly.
How long do the Bail conditions last for?
If you are released on Bail, the bail conditions are not just in place until your first appearance in court. The conditions are in place until the case comes to an end, either by a trial or by some other result. This may take several months or longer.
If you or a friend/family member require a lawyer for the purposes of a bail hearing, contact us immediately to learn how our experienced bail hearing lawyers can help you.