Bail Hearings

Bail Hearings: What you need to know

The law of bail can often appear quite complex and is a very important step in the process as it determines whether an accused person will have to wait in custody until their matter is dealt with.

A bail hearing should not be taken lightly, even if the charges appear minor.

Toronto Criminal Lawyer Adam Goodman has experience conducting bail hearings for a number of different individuals faced with varying charges. Adam works with potential sureties in developing a solid bail plan and communicates with those in custody about the entire bail process.

How Bail Hearings work

After being arrested, the police may decide to release an individual directly from their custody, with or without conditions. When the police choose not to do this, or when an individual does not agree to conditions, they must be brought before a Judge or Justice of the Peace to deal with the issue of bail. This appearance should occur within 24 hours. Bail courts sit 365 days a year. Special courts, called WASH courts, are set-up for weekends and statutory holidays (which is what WASH stands for).

In most cases a bail hearing will occur before a Justice of the Peace in the Ontario Court of Justice. Occasionally Judges of that court will conduct a bail hearing (youth bail de novo hearings will always be before an OCJ Judge). Individuals charged with certain serious indictable offences (such as murder, treason, piracy, etc.), as defined in s. 469 of the Criminal Code, will have their bail hearings before a Judge of the Superior Court of Justice.

Preparing for Bail

The assistance of a criminal lawyer is necessary at a bail hearing. This lawyer can be privately hired counsel or free duty counsel lawyers who are present at the courthouse. The decision on whether to hire private counsel or duty counsel is a personal one. While duty counsel is qualified and generally experienced with bail hearings, a private lawyer will be focused on their client and matters such as negotiating with the Crown, preparing sureties and submissions, etc.

The Law

The law pertaining to bail hearings can be found in s. 515 of the Criminal Code. The first factor to consider is whose onus the bail hearing is on to “show-cause”: either the Crown must show-cause why an accused person should remain in custody, or an accused person must show-cause why they should be released from custody. When the onus is on the accused, it is said to be reversed. The onus is reversed in the following circumstances:

When an accused is charged with certain offences defined in s. 515(6)(a) of the Criminal Code.

  1. When an accused is charged with an indictable offence and is not ordinarily resident in Canada.
  2. When an accused is on a release for another offence and is alleged to have breached a term of that release.
  3. When an accused is charged with certain drug offences that carries a potential sentence of life imprisonment.
  4. In cases where an accused is on a previous release, the Crown may make an application under s. 524 of the Criminal Code to cancel all outstanding releases. In such cases, the Crown has the right to a short adjournment to prepare the necessary paperwork to make this application.

In determining whether an accused should be released from custody, a court will consider three different factors, or grounds:

  • Primary ground: This is a question of whether an accused will attend for their court dates.
  • Secondary ground: This is a question of whether there is a substantial likelihood of the accused committing further criminal offences while on release.
  • Tertiary ground: This is a question of whether detention is necessary to maintain confidence in the administration of Justice.

While an accused does still maintain the presumption of innocence at a bail hearing, the court will still consider the allegations in determining whether an individual can be released.

Once a court determines that an individual shall be released, a court may impose conditions on the accused that consider the three grounds mentioned above. In practice, these conditions are suggested by the accused’s counsel during the bail hearing as a means of demonstrating to the court how concerns over the three grounds can be addressed while the matter proceeds through the court system.

The Plan of Release

Preparing a plan of release is a highly-individualized process that factors in personal details of the accused such as age, work history, education, place of residence, criminal record, drug or alcohol problems, mental health issues, etc. The allegations before the court are also a consideration – more serious allegations generally require a more strict bail plan. The background and suitability of the surety is also a major consideration.

Potential conditions may include a curfew, requirement to seek counseling, requirement to be in school or working, and could be as strict as a 24-hour house arrest. It is best to work with a criminal lawyer to determine the best possible plan of release.

The Sureties

It is always best to have a responsible individual that is prepared to help supervise the accused. In some cases, more than one surety may be necessary or advisable. In addition to assisting with supervision, a surety will either pledge or deposit an amount of money which can be lost should an accused breach the conditions of their release and the Crown decides to estreat the bail. In the majority of cases no actual funds will have to be deposited to the court but rather the potential surety “pledges” that amount of money, understanding they could lose the money in the event of a breach. Often the surety will have to provide documentation that they either make enough money to cover the bail or have assets of a value equal or greater than the bail amount.

In cases of a contested bail hearing, the potential sureties will provide viva voce evidence to the court. A surety should be prepared to give evidence on the following:

  • Personal details including work history, citizenship status, and whether they have a criminal record or outstanding charges (it is best to be upfront about any criminal antecedents including withdrawn, discharged, and pardoned matters).
  • Knowledge of the allegations before the court, if any, and knowledge of the accused’s criminal background.
  • The plan of release for the accused.
  • Their relationship with the accused and the complainant, if known to them.
  • Knowledge of the responsibilities of a surety and whether they have been a surety in the past and what happened with that matter (most importantly, whether the person complied with their bail).
  • A willingness to “pull the bail” and call the police should they find the accused in breach of bail (for any reason and without warning) and a willingness to “pull the bail” should they become uncomfortable and no longer wish to act as a surety.

A criminal lawyer will thoroughly interview any proposed sureties and assess their suitability as well as prepare them for testimony.

The Decision & Method of Review

Once all sureties have given evidence, both the Crown and defence counsel will make submissions on whether the accused can be released. Submissions may include a review of the plan of release, background of the accused, as well as the apparent strength and weaknesses of the Crown’s case. The court should then provide their decision, with reasons.

The defence or Crown may “review” the bail decision of an OCJ Judge or Justice of the Peace by means of a bail review before a Judge of the Superior Court of Justice. This could take some time to prepare as affidavits and transcripts may be necessary. A decision may be altered either in a case where there was an error in law or where the court finds there to be a material change in circumstances (such as a new surety coming forward or disclosure revealing a weakness in the Crown’s case).

In cases where an accused has difficulty with a condition imposed by the court, they may approach the Crown to see if they would be agreeable to a bail variation. Should they agree, this variation can be done in the Ontario Court of Justice, often out of court. Should an agreement not be reached, a bail review must be held.

Following a preliminary inquiry (but before committal) or after an accused has pled or been found guilty but before sentencing, a Judge of the Ontario Court of Justice has jurisdiction under s. 523 of the Criminal Code to reconsider the issue of bail. This may include an application by the Crown for an accused to be detained in custody.

How much does it cost to hire Adam Goodman for a Bail Hearing?

In most cases, a retainer (usually between $2000-4000) is required to begin working on your matter. Depending on the circumstance, Adam may consider working on a contingency or partial contingency basis. Adam’s law practice offers payment plans and also accepts various forms of payment including debit and credit cards.

What should you do next?

Remember it costs you nothing to pick up the phone to find out your rights. Contact one of Adam Goodman’s Toronto offices today for a free assessment of your bail hearing and let him help lessen your stress and worries about your legal matter(s).