Bail Variations

June 29, 2009

Individuals facing criminal charges are often released on bail while they await trial. When released, the accused individual will be provided with a “recognizance” or other Court order which dictates the terms of release. The recognizance is essentially a document which states that the accused individual is released on bail and stipulates the conditions of that release. An individual released on bail will often have to comply with a variety of conditions upon their release. Some typical conditions are:

  • A curfew;
  • A prohibition against possessing drugs, alcohol, or weapons;
  • A driving suspension;
  • A prohibition against communicating or having contact with specific individuals;
  • Remain in the province of Ontario.

According to the terms of the recognizance, the accused person is bound to comply with the terms of their bail until the completion of their trial. However, due to the delays in the Toronto criminal justice system, an individual often may have to wait a year or more until their case is heard in a Toronto court. In this context, the terms of the recognizance are often an undue burden on an accused person, making it hard for them to live a normal life in their community. Since every individual in our criminal justice system is presumed innocent until proven guilty, they should not undergo undue hardship as they await trial. As criminal defence lawyers, one of our most important duties is to ensure that our client’s bail conditions are reasonable or as least restrictive as possible. The long delay between a charge and a trial can be stressful enough without having to deal with bail conditions which may interfere with your ability to work, visit loved ones, and interact with your community. We try to lessen that burden by varying any unfair or burdensome bail conditions.

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If one of our client’s believes that any condition of their bail unfairly interferes with their lives, we will negotiate with the Crown Attorney’s office to vary the terms of their recognizance. After the Crown agrees to modify a term, that modification must also be approved by a Justice of the Peace. Once agreed upon by all parties, an unreasonable bail condition is replaced or deleted. This is known as “bail variance”

Bail variation comes up often in domestic assault cases where both partners wish to continue their relationship but are forced into an artificial separation by a mandatory restraining order in the accused person’s bail. Often, with the permission of the Crown, a Justice of the Peace, and the alleged victim of the domestic assault, that condition can be removed so that the relationship may resume cohaitation. Another common situation where bail variances can be very effective is in the context of a DUI charge. Sometimes, an individual charged with impaired driving will be released upon condition that they  refrain from driving or being in the front seat of a motor vehicle as part of their bail. However, this can restrict an individual’s mobility to the point that they cannot continue to work. A defence lawyer will often apply to the Court to vary this term allowing the accused person to drive for work purposes. In Toronto, this variation is often granted.

The criminal justice system in Toronto and throughout Canada puts a very high value on an accused person’s ability to continue in their career and maintain family ties as they work their way through the court system. Thus, reasonable bail variations which attempt to accomplish these two goals have a high chance of success in the Toronto system. However, other types of bail variations are also common. For example, as an accused awaits trial they may apply to change their curfew based on good behaviour. As long as the accused person has complied with the terms of their bail and has been otherwise well behaved, the Crown will likely agree to modify their curfew.

An effective criminal defence lawyer will not only take care of an accused individual at the trial stage, but will fight for their rights at every stage of the trial process. A bail variation is one example of how a competent defence lawyer can mitigate the onerous level of stress which a client experiences as an accused. At Kostman and Pyzer, Barristers, we are sensitive to these factors. We protect our clients!

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