Bail

Upon arrest, the police can either release you or they can choose to take you into custody at the police station. Typically, in situations of minor offences or where the person has no significant criminal record, the police will release the person on a Form 10 undertaking with particular conditions and a “promise to appear” in court. However, where the police have concerns where the accused won’t come to court, will endanger the public, or if the accused being released will shock the general public and bring the justice system in disrepute, the police will keep an accused in custody. If taken into custody at the police station as per s. 503 of the Criminal Code, the police must give you a bail hearing within 24 hours before a Judge or Justice of the Peace without unreasonable delay.

Under s. 11(e) of the Canadian Charter of Rights and Freedoms, everyone has the right not to be denied reasonable bail without just cause.  This right is guaranteed based upon the principle that a person is presumed innocent until proven guilty. “Just cause” means that bail must be granted unless there is a very good reason to deny it. “Reasonable bail” means that when bail is granted, the conditions of release must be reasaonable.

WHAT HAPPENS AT A BAIL HEARING

 Once before the court, the Crown takes a position of either consenting to your release, with or without conditions, or keeping you in custody until the criminal charges have been handled in court. A Judge or Justice of the Peace will decide to either release you with or without conditions or keep you in custody.  A bail hearing is not the same as a trial, and whether you are guilty or ot is not determined by the Judge or Justice of the Peace at this phase of the criminal justice process. Bail hearings are also referred to as “show cause” hearings, as it is typically the Crown’s responsibility to “show cause” as to why the accused shouldn’t be released based on on or more of three different grounds.

WHAT THE COURT CONSIDERS WHEN DECIDING TO GRANT BAIL

Section 515 (10) of the Criminal Code provides that bail may be denied in three situations:

1. Primary Ground: The court considers whether detention is required to ensure that the accused will attend court as required. The court may consider an accused’s status in Canada, whether they have a history of not attending court, or whether they reside in the province where they have been charged or have any meaningful connections in the community in which they have been charged (such as employment, family nearby, etc.)
2. Secondary Ground: The court considers whether detention is required for the protection of the public (including any victim or witness to the offence or any person under 18 years of age) and whether the accused will commit a criminal offence or interfere with the administration of justice if released. The court may consider whether the accused has other outstanding charges or a criminal record for similar offences or a history of failing to comply with court orders.
3. Tertiary Ground: The court considers whether detention is required to maintain the public’s confidence in the justice system. The court is required to consider all of the circumstances including the strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence (including whether a firearm was used), and whether if, upon conviction, the accused is facing a potentially lengthy term of imprisonment for a term of three years or more.  

CONSENT RELEASE vs. CONTESTED BAIL HEARING

Your paralegal or lawyer may be able to negotiate a consent release with the Crown under a proposed plan with particular conditions. Even if you disagree with some of the bail conditions, it is advisable to accept a consent release if the proposed conditions do not conflict with other court orders and you can follow the conditions. No release will be granted if you refuse to comply with the conditions. It is important to have a licensed paralegal or lawyer represent you when negotiating a consent release to ensure you do not agree to conditions that are more onerous and unreasonable than is necessary. Often, an accused will agree to conditions without providing them consideration as to their impact just to get released from custody.

Typical conditions considered when negotiating a bail plan are:

• No contact orders preventing communication with the victim and/or the co-accused
• Location bans where the accused is restricted from certain locations
• Requirements to live at a specific address
• Curfews where the accused is required to stay home during specific hours, usually overnight
• House arrest
• Requirement  to deposit passport in the province and stay there
• Requirement to report any changes in your employment or address
• Prohibition from possessing weapons.

If you do not agree with the consent release, the Crown may insist on a contested bail hearing. During the contested hearing, the court may decide to detain you and you may not be released.

PREPARING A BAIL PLAN

Things to consider when preparing a bail plan are:

• Where will you be residing while out on bail?
• What kind of supervision will you receive in the community?
• Is there anyone available to supervise you (a.k.a. someone to act as your “surety”)?
• What would be reasonable and necessary release conditions?
• Are you in school or working?
• What steps will you take to address any drug or alcohol issues associated with your charges?
• In what way do you plan to stay on top of your court dates and attend court?

CHOOSING A SURETY

A surety is someone who is willing to supervise an accused while they are released on bail. The surety must appear in court to be approved by a Judge or Justice of the Peace, be 18 years of age or older, be an immigrant or a Canadian citizen, be uninvolved in the offence for which the accused is being charged, have some financial assets that can be pledged as security for the court, monitor the accused’s progress and ensure that the bail conditions are followed, bewilling to report the accused if they fail to follow the bail conditions.

The court will require the surety to “pledge” a certain amount of money. The surety promises to pay the court money if the accused fails to follow their bail conditions. The amount of bail is usually referred to as the “quantum of the bail”. In most cases, this money does not have to be paid in advance.

When choosing a surety, it is advisable to choose someone with whom you have a close relationship and can provide you with the supervision the court requires. The court may potentially ask the surety what their relationship is to you, in what ways they are prepared to supervise you, the court may ask the surety for an overview of their personal and financial history, ensure they understand their surety  obligations and their willingness to report a breach of conditions if one occurs.

REVERSE ONUS FOR CERTAIN OFFENCES

Typically, the Crown must “show cause” as to why an accused should remain in custody until their criminal charges are dealt with. If the Crown is unable to do so, the accused will be released. However, there are certain instances in which an accused person charged with specific crimes will be required to demonstrate why they should be released on bail. This is referred to as “reverse onus”, in which there is a shift from the usual burden of proof from the Crown to the defence. A reverse-onus bail hearing occurs:

• When charged with the unlawful possession of a prohibited or restricted firearm (loaded or unloaded with readily accessible ammunition)
• When charged with breaking and entering to steal a firearm
• When charged with robbery to steal a firearm
• When charged with manufacturing an automatic firearm
• When charged with drug offences involving the sale of drugs
• When charged with intimate partner violence where the accused has a prior conviction of such an offence on their record
• When an accused with a prior conviction for a serious offence (with a penalty of 10 or more years imprisonment) involving violence within the last five years.
• When following the accused’s release, new, unrelated charges have been filed against them
• When the accused was already on release and failed to follow the conditions of that release, which led to the charge of failure to comply against them.

In situations in which there is a reverse onus, the defence may need to gather more comprehensive character references and evidence of stable community ties to show the accused would not be a danger to society if released on bail.

IS IT POSSIBLE TO CHANGE YOUR BAIL CONDITIONS?

It is possible to request a variation, or a change, in your bail conditions. There are a couple of ways of going about this. The easiest and cheapest way is to have your lawyer or paralegal negotiate the variation with the Crown and obtain their consent. An explanation of why the variation is needed or is appropriate will be required and the request should include the background of the accused, the reason or need for the change, or the complete inappropriateness of the condition in the first place. However, if the Crown refuses the accused also has the option of requresting a bail review before the Superior Court. Paralegals are not able to represent an accused within a bail review before the Superior Court and it will be necessary to hire the assistance of a licensed lawyer.  

HOW WE CAN HELP

Paralegals may only represent an accused at a bail hearing when being held in custody on a straight summary offence or if the Crown has elected to proceed by way of summary conviction prior to the bail stage. However, these circumstances are rare, and involving a licensed lawyer will likely be required.

Glass Gavel Law can provide guidance, coordinate with your potential sureties, and assist in preparing a strong bail plan to present to the court and negotiate with the Crown for your release from custody. Ultimately, our goal is to relieve the stress associated with bail and help you or your loved one return home. Should you or a loved one require representation at a bail hearing or guidance with regards to the process, call Glass Gavel Law at 1-833-344-2835 for a free, 30 minute consultation.