What is Bail Hearing?

October 6, 2019
  • When someone is charged with a criminal offence(s) and arrested, they may be released at the scene of their arrest, from the police station, or later at their bail hearing.
  •  If released from the scene of their arrest or the police station they are released using a summons, Appearance Notice, Promise to Appear (with or without an undertaking), or Recognizance of Bail (with or without an undertaking).
  • If they are not released they will have to have a bail hearing.
  • Bail hearings occur in a criminal courthouse shortly following the accused’s arrest.
  • At a bail hearing a person’s release is determined.
  • The Judge or Justice of the Peace will make a determination as to weather or not the accused will be released or held in custody until the criminal charges they are detained on are resolved.
  • It is comparable to a short trial, but instead of assessing innocence or guilt, whether someone should be released or not is assessed.
  • Sometimes the Crown will consent to the release of accused. If the release is consented to, both the defence lawyer and the Crown submit to the Judge/Justice that the accused should be released.
  • In this case the Crown and defence lawyer must negotiate the terms of the accused’s release, with the defence seeking the least restrictive bail conditions.
  • In more serious cases it is likely that the Crown will not consent to the accused release.
  • In this case a contested bail hearing will occur.
  • At contested bail hearings the onus rests on the Crown to show through their submissions that the accused should be detained based upon the primary ground grounds, the secondary grounds, tertiary grounds.
  • In cases where the accused is being detained because they breached their bail or probation then a reverse onus bail hearing will occur.
  • In this case the onus is on the defence to prove that the accused should be released by demonstrating that the accused does not constitute a danger to the public and is not a flight risk.
  • In both instances, the defence will present the best plan of release possible, demonstrating that accused can comply with a good plan of release.
  • The Justice of the Peace makes his or her decision to release the accused based upon three points:
  1.  Primary grounds: If released, will the accused appear at their subsequent court dates to face their charges or will they attempt to take off? Is the accused a flight risk?
  2. Secondary Grounds: If released is the accused going to be dangerous? Are they likely to commit further offences, contact the complainant in relation to their charges, or breach the conditions of release imposed by the court?
  3. Tertiary Grounds: Is there any other “just cause” for detention?  What is the apparent strength of the case against the accused? What is the gravity of the alleged offences the accused is charged with? What is the circumstance of the alleged offences? What is the potential for lengthy term of imprisonment, or whether a minimum sentence of three plus years is required for the alleged offence?

 What is a surety?

  • A surety is a friend, family member or partner of the accused who is willing to sign bail for the accused so that the accused may be released from custody.
  • The Surety is asked to pledge or sign an amount of money. The money is required so that the surety takes their responsibility seriously. They are responsible to supervise the accused make sure that they comply with the conditions of their bail.
  • If the accused does not follow the conditions of their bail it is the surety’s job to contact the police or the office of the Justice of the Peace to have the bail pulled.
  • If the surety fails to report a breach of bail conditions by the accused they could potentially lose the amount of money they signed the bail for.
  • The surety must not have a criminal record, must be at least 21years old, must be employed or retired, not be an employee of the accused, must be a Canadian citizen or a landed immigrant, demonstrate that they are good for the amount of money required for the bail.
  • The judge/justice may use their discretion, these requirements are not absolute.

 What happens at a bail hearing?

  • Your Toronto criminal defence lawyer or duty counsel interviews the accused and the potential surety or sureties to gather general information about their background, their age, address, education, employment, and living situation.
  • They use this information to construct an appropriate plan of release for the accused that can be presented to the court.
  • At the appropriate time the Crown will have the accused brought into the court.
  • The allegations against the accused will be read. The Defence lawyer will present the surety and the plan of release for the accused.
  • If the accused release is contested the Crown will cross-examine the surety to try and demonstrate weaknesses in the defence’s plan of release.
  • The defence will make submissions as to why the accused should be released. The Crown will then make arguments as to why the accused should not be released.
  • Then judge/justice will make a determination as to whether the accused will be released.
  • If the accused is not released it is likely that they will be held in until their charges are resolved, either through a guilty plea, trial or withdrawal of the charges by the Crown.

If you or someone you know is facing criminal charges and has an upcoming bail hearing contact Toronto Defence Lawyers, Kostman and Pyzer, Barristers for advice.

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