This is a very critical juncture in the criminal trial process. If you or someone you know are charged with a criminal offence, you should retain private counsel to act at the bail hearing. It is not only the issue of bail versus detention which is at stake. It is the nature of the restrictive conditions that the court orders upon release. The quality of life on bail can be dramatically different from one bail regime to the next. The relief of being out of jail and on house arrest eventually turns to frustration when months later the individual is still unable to leave their home except for court appearances, medical emergencies and visits to their lawyer’s office. The law firm of Kostman & Pyzer has extensive experience in conducting bail hearings and we will fight for your right to bail. We will obtain the least restrictive form of bail available in the circumstances of the case. We fight for your rights and we fight to win!
An individual who is denied bail may feel pressured to resolve the proceedings rather than wait months or even years for their trial. In many cases, individuals who are incarcerated without bail, plead guilty to offences rather than wait months for trial. Facing similar allegations, their co-accused, who are out of custody, may be acquitted after trial. A person charged with a “domestic assault” who does not get bail because of the alleged threat they pose to a complainant, often finds themselves with the difficult choice to contest the allegations and wait in custody for trial for months or plead guilty and win their freedom immediately.
It is essential that a person charged with a criminal offence puts his strongest bail application before the Court even if it means waiting a number of days for potential sureties to make themselves available. Once a person has been detained in custody after a bail hearing, it is often an uphill battle to obtain a release. On appeal, an applicant must show a significant change in circumstances or that the judge who heard the original bail application made an error in law. Patience is the best approach to the bail application even if it means some delay. It is very important to put your strongest application before the Court. Once you’re free on bail, we can challenge and defend the case against you without the added strain of pretrial custody.
Although there are competent lawyers known as “duty counsel” who assist individuals who do not have a lawyer at their bail hearings, if you have the financial resources it is worthwhile to retain private counsel to assist you. Duty counsel are unable to give a significant amount of attention to the in-custody client due to the volume of individuals that they must represent. Furthermore, again due to time constraints, they are unable to give the proposed sureties and other witnesses the same quality of attention that private counsel can.
A bail hearing is not a trial. The Court hears a general overview of the allegations and makes a determination based on the following factors:
- Attendance at trial: Will some form of bail (monetary guarantee and conditions) ensure that the defendant will attend at his trial and not
leave the jurisdiction or “lay low” to avoid justice?
- Is detention necessary to prevent a repetition of the offence or to protect the Public or a specific complainant?
- Is detention necessary in the public interest, or will the release of the applicant undermine public confidence in the administration of justice?
Depending on the nature of the offence, the onus may be on either the defendant or the prosecution on a balance of probabilities to establish bail or detention in custody.
