Bail Hearings - Criminal Defence Lawyer Toronto

What happens when someone is held for a bail hearing?  <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />


For many criminal offences, the police have the option of releasing a person charged with a criminal offence on a promise to appear in court without requiring a bail hearing. If the police have concerns about a person’s identity or a belief that the person will commit another criminal offence if released they may choose to hold the person for a bail hearing. A police officer may also do this if there is a fear the accused individual will destroy evidence or not show up for court. 


For a person who is being held in custody, the bail hearing is often the most stressful part of his/her case. The implications from the bail hearing can affect what the accused individual does with his/her case from that point forward. Therefore, the importance of the bail hearing should not be minimized. 


How can I get bail when I am charged with a crime? 


You will likely need the help of your family and/or friends to attend court to act as a surety on your behalf. On some occasions, when the charges are less serious, bail can be arranged without the need for a surety.


What happens at a bail hearing?


The Crown Attorney will read in the allegations surrounding why the individual was charged. Oftentimes, the Court will then hear evidence from the potential surety (or sureties). The Crown will have an opportunity to ask the potential surety questions. The lawyer will then make submissions as to why the individual should be released from custody. The court will then decide whether or not the accused person should be released from jail while they await their trial. 


 To release an individual from custody pending trial, the Court must be satisfied that the person charged with the crime(s) will attend court on all his/her court dates, will not commit any criminal offences while awaiting trial, and that the community would not be offended by the idea of a person charged with the specific offence(s) being released on bail. This last factor is generally considered when the offences are serious in nature. 


 More often in today’s society, the onus is on the accused individual to convince the court that he/she should be released on bail pending trial. Under our current Conservative government, more and more offences are triggering the reverse onus provisions of the Criminal Code of Canada than ever before. For some offences, the Crown still has the burden of showing the court why the accused individual should stay in custody until their trial.  


 


What is a surety and what does that person have to do?


A surety is a person who agrees to take responsibility for a person accused of a crime. A surety must be sure they can supervise the individual charged while he/she is in the community. If the person fails to obey any of the terms placed on him/her by the court, you could lose any of the money that you pledged to the court. A surety cannot accept any sort of fee for acting as a surety.


To qualify as a surety, a justice of the peace or a judge will look at a number of factors. The qualifications necessary will often depend on the seriousness of the allegations. The justice of the peace will often inquire about your finances, knowledge of the accused individual, your relationship with the accused individual, and possibly even your personal character.


The amount of money required to be pledged often depends on a number of factors such as:


i.                    the severity of the crime


ii.                  the number of charges faced by the accused individual


iii.                the surety’s ability to supervise the accused


iv.                 financial security of the surety


v.                   the amount pledged on any outstanding bails that the accused individual  is currently on


The responsibilities of a surety include making sure that the accused individual comes to court on time for each and every court appearance, and ensuring that the accused individual obeys every condition of the recognizance (the bail document).


Can I withdraw from being a surety?


At any time you might decide that you no longer wish to supervise the accused individual. You can then either go to court with the accused individual and ask that you be relieved as a surety or apply in writing to be removed as surety. person. If the accused individual is not following his/her bail conditions, you can also ask to be removed as a surety.


 


Does the accused individual or the surety have to deposit any money with the court?


Occasionally, an accused is required to deposit a sum of money with the court to secure his/her release.


On other occasions, a surety may be required to deposit money with the court to secure the release of an accused individual.


Deposits are often required when the accused individual is not a citizen of <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Canada or normally resides in another province.


The amount required to be deposited often depends on the seriousness of the allegations.  


Will I, as a surety, have to testify in court?


If you want to act as a surety for an accused individual, you may be called on to testify at the bail hearing. Testifying can be a very nerve-wracking process. The job of the defence lawyer is to meet with you prior to the bail hearing to prepare you to testify in court. The defence lawyer will go over your personal information with you and let you know what questions you will be asked when in court. The lawyer will also prepare you for the questions you will likely face from the Crown Attorney. This meeting is very important as the decision to grant bail often comes down to the strength of the surety to supervise the accused individual.


 


If my friend already had his bail hearing and was denied, is there any way to get him released on bail?  


If your friend was detained after a bail hearing was conducted, an application can be brought to the Superior Court of Justice (called a Bail Review) seeking to have the detention order reviewed by a Judge. For this to happen, the Justice of the Peace will have had to have made an error in law during the bail hearing or if there is a material change in your friend’s circumstances since the bail hearing (such as a new plan being in place for his release).


How long does it take to bring a Bail Review?


To file a bail review, there are several documents that are required to be filed with the court (such as the charging document, transcript of the bail hearing, and statements made under oath (called affidavits) of the Applicant and possibly the surety). All of these documents are almost always required. Once all these items are received by the lawyer (which generally takes 2-4 weeks), it will take at least three business days notice before the application can be heard by a judge.


The lawyer, the client, and any proposed sureties will have to attend the Superior Court of Justice on the day scheduled for the bail review.


I was granted bail but I want to vary some of the conditions I am required to follow. How do I go about doing this?


Generally, your lawyer can discuss these changes (called a bail variation) with the Crown Attorney. If the Crown Attorney agrees with the change, this can be done in the Ontario Court of Justice. If the Crown Attorney does not agree to change the term(s) of your bail, you will be required to bring an application in the Superior Court of Justice to vary your bail. See the prior question for a description of the process.


If you know someone charged with a criminal offence who requires a bail hearing OR if you know someone who requires a bail review or bail variation, you should consult a lawyer to discuss your case. Click HERE to contact Jeff Hershberg for a free consultation.