When a person who has been charged with a criminal offence is not released by the police, they are held for a bail hearing before a justice or a judge. Here, you will find information about the law of bail; what happens during a bail hearing; conditions that might be imposed while on bail; and, how to change conditions or appeal a bail decision. An experienced Toronto bail lawyer can help you with each step.
If you are facing a bail hearing there are three things you should always keep in mind. Firstly, although everyone has a right to be released on bail not everyone is released. In fact, statistics show that the majority of people who are incarcerated are people who are held in custody while waiting for future court dates. Secondly, the rules of evidence are relaxed at a bail hearing. But there are some rules to keep in mind. For example, an accused person cannot be asked about the charges. And thirdly, in some cases, the bail hearing may be the most important stage of the case. This is so because it has long been recognized that a person held in custody is more likely to plead guilty or to be found guilty at trial.
Ultimately, there is no substitute for having a Toronto bail lawyer on your side during this crucial step in the proceedings. An experienced bail lawyer will craft the best release plan; prepare the witnesses; and negotiate with the crown attorney to put you in the best position to get bail.
Legal principles of bail
Judicial interim release, or bail as it is more commonly referred to, is a critical element of criminal procedure. The Supreme Court of Canada has described the right to bail as an essential element to an enlightened criminal justice system.
The right to bail has two main aspects. First, everyone charged with an offence has the right not to be denied bail without just cause. This means that bail should only be denied in narrow circumstances. Second, every person has the right to reasonable bail. This means that the conditions of bail should not be too restrictive.
For a majority of criminal charges, there is a presumption that the accused should be released without conditions; unless the crown can show why detention or conditions are necessary. On the other hand, in some circumstances, that onus can shift to the defendant to show why detention is not justified. This is usually the case with more serious criminal charges.
Finally, the most important legal principle in the law of bail is that there are only three grounds to detain a person. First, if they are a flight risk. This is called the primary ground. Second, if they pose a substantial risk of re-offending. This is the secondary ground. And, third, if detention is necessary to maintain confidence in the administration of justice. This is the tertiary ground. Any decision to detain or to impose conditions must be tied to at least one of these three grounds.
The bail hearing
A bail hearing is the proceeding in which a justice decides whether the accused should be released pending trial. Every bail hearing should begin with information about the defendant. The justice should be made aware of the defendant’s background; ties to the community; family status; education; work history; relationship with the proposed surety; and, relationship with the complainant. The defendant’s criminal record, if any, is also an important factor.
Next is the allegation. Generally, the crown will read a synopsis of the allegations. Sometimes they will read statements from witnesses or from the complainant. However, the defendant must consent to this procedure. Otherwise, the crown must call evidence from police officers about the allegations.
In most cases, the surety is a vital part of the bail hearing. A surety is a person who takes on the responsibility of supervising the defendant on bail. That supervision is based on a promise that the surety will forfeit a specified sum of money to the crown if the accused fails to comply with the conditions of the bail. Naturally, a potential surety should be someone who knows the accused, who is of good character, and who has the financial means to guarantee a sum of money in support of their obligation.
After the evidence is presented and the lawyers make their submissions, the justice will decide whether the accused should be released or not. If released, the surety has to make sure that the accused goes to court when required; does not commit any further criminal offences; and, does not breach the conditions of the bail.
Conditions of bail
Once the decision to release the defendant is made, the next question is whether the release should be made with any conditions. Conditions on a release order are restrictions on the defendant’s liberty. As such, they must be relevant to the circumstances of the case and tied to the three grounds of detention.
Typically, a bail with conditions will have conditions such as: reside with surety; abstain from communicating with the complainant; do not attend certain locations etc. Obviously, the suitability of these conditions will depend largely on the facts of the case. In some cases, more restrictive conditions such as a curfew or house arrest may be imposed. Moreover, in some cases, the court will demand that sureties use technological aids to monitor the defendant such as alarm systems, video surveillance, and electronic monitoring.
Bail reviews and changing bail conditions
A bail review is an appeal of the bail hearing. It is an application to review the order or any conditions of release made before a judge of the Superior Court of Justice. As such, the bail review application must be in accordance with Rule 20 of the Criminal Proceedings Rules for the Superior Court of Justice. At a minimum, application materials must include an affidavit from the accused and a transcript of the bail proceedings.
As mentioned, conditions of a bail order can be changed by bringing a bail review application. However, another way to change bail conditions is to seek a bail variation on consent of the crown attorney. This second method of changing bail conditions involves two steps. The first step is to secure the consent of the crown. The second step is to have the variation approved by a justice. In most cases, a bail variation is a much more favourable way of changing bail conditions because it does not involve an application in court with the necessary materials.
Police are under an obligation to bring an accused person before a justice for a bail hearing within 24 hours. And, in most cases, the defendant is entitled to a bail hearing when they appear before a justice. This means that bail hearings are often rushed. Sometimes these hurried bail hearings lead to unfortunate results such as detention orders or unnecessarily strict conditions.
If detention is ordered, it takes time to bring a bail review application. If overly harsh conditions are imposed; you may have to live with those conditions until the trial date. To avoid a bad result in bail court it is imperative that you immediately speak to an experienced Toronto bail lawyer.
An experienced criminal lawyer will prepare your sureties; review the allegations while raising triable issues; and, make convincing legal arguments for release on the least onerous conditions. Do you have questions about a bail hearing? Contact the law office of Deniz Sarikaya for an experienced criminal lawyer with a track record of success in bail court. Book your free consultation by calling 647-282-5777.