The Bail Hearing Process

Does everyone charged with a criminal offence require a bail hearing? For most criminal offences, the police have the choice to release a person charged with a criminal offence without requiring a bail hearing. Police will generally not release a person without a bail hearing where they have concerns on one of the following grounds:

1) they need to establish the accused person’s identity
2) they fear the accused will destroy evidence relating to their investigation
3) they fear the accused will continue or repeat the offence or commit other criminal offences
4) they have reasonable grounds to believe the accused will not show up for court.

If the police hold any of these concerns, they will likely hold the accused person for a bail hearing.

What happens at a bail hearing? At a bail hearing, the court will decide whether or not the accused person should be released from jail while they await their trial.

How does the Court determine who can and cannot be released? In determining whether or not an individual facing criminal charges should be released from jail, the Court must be satisfied that the accused person will attend their court dates, that there is not a substantial likelihood that the accused would commit further criminal offences while released on bail and that the community would not be offended by the person's release given the serious nature of the offences alleged and the strength of the Crown’s case against the accused.

The onus is generally on the Crown to show why the accused should not be released on bail. In some situations, the onus is switched and it is the accused who must show why he should not be detained in jail while he awaits trial.

Most commonly, the reverse onus provisions are triggered when an accused person is already released on bail for other charges or is charged with a specific offence that imposes the reverse onus procedure, such as drug trafficking. A reverse onus situation may also be triggered when the person charged does not ordinarily reside in Canada.

For a person in custody, a bail hearing is often a critical juncture that will affect their decision on how to proceed with their case. This is a very important part of the criminal process and cannot be underestimated.

What does an accused person need to do to in order to get bail? At the bail hearing stage, the person charged will likely need the assistance of his or her friends or family members to come to court and act as sureties.

A surety is somebody willing to supervise the accused person while released on bail and is responsible for ensuring that all of the conditions of the bail are being followed. In some instances, the accused person may be required to live with the surety and the surety will likely be required to pledge a monetary amount towards the bail. This monetary pledge ensures that the surety will properly supervise the accused person - or risk losing their money should they fail to do so. In most instances, the surety need only establish that they have access to the amount of money being pledged and need not deposit the money with the courts. Bankbook statements or property deeds are examples of ways the surety can prove their assets to the Court.

How many sureties does somebody need to get bail? How much money will the sureties need to pledge? The amount of sureties and money to be pledged can vary depending on a number of factors such as the number of criminal charges the accused is facing, the type of charges, the financial situation of the surety, the surety’s ability to supervise the accused, whether the accused has a prior criminal record and the extent of the record among other considerations. Every case is fact specific and the decision of how many sureties are required and how much money they must pledge is ultimately a decision for Judge or Justice presiding over the bail hearing.

A surety may be asked to testify in Court about their plan to supervise the accused and perhaps give some background information about the accused person as well as their personal relationship with the accused in order to determine their suitability as a candidate to supervise the accused while on bail.

One of the most important roles a defence lawyer has at the bail hearing stage is to ensure that potential sureties at the bail hearing are adequately prepared for the process of testifying in court. The sureties should know ahead of time what questions will be asked of them by the defence lawyer and even what questions they may be asked by the Crown Attorney. One wrong answer to any of the questions asked in Court could result in the denial of bail for the accused.

Experienced criminal lawyers know what questions will likely be asked at a bail hearing and can prepare sureties ahead of time for the “tough” questions. A well prepared surety is often the difference between securing a release on bail and a detention order.

What if the surety can’t attend court for the bail hearing? If sureties are absent, one option may be to postpone the bail hearing to a later date when the sureties can be in attendance. There is no limit to the number of times a bail hearing can be postponed; however, a lawyer is usually only retained to appear for one bail hearing appearance. Postponing the hearing may result in additional costs incurred with the lawyer to have them appear on another date.

What happens if the accused is not granted bail? In the event of a detention order (denial of bail), the accused will have to bring a special application to the Superior Court of Justice to have his detention order reviewed by a higher Judge. For more information on the detention review process, please read "Changing My Bail Conditions"

Additional information can also be found on my website at http://www.yourbestdefence.com/. Alternatively, I can be reached at 416.297.7200 for a free consulation.