Understanding Bail in Ontario
Bail is the procedure used to decide if a person charged with a crime will be held in custody or released while awaiting trial. When someone is accused of a crime, they are taken into custody and held in jail until their court appearance. In Ontario, a bail hearing must occur within 24 hours of the arrest, provided a judge is available; otherwise, it will happen as soon as possible.
- Being charged with a crime can be overwhelming.
- Securing bail is often the first significant step in building a defense.
- Denial of bail can place immense pressure on the accused, pushing them to consider pleading guilty, even if innocent.
- The thought of remaining in custody for months or years while awaiting trial can be daunting.
- This pressure may lead some to view a guilty plea as a way to avoid prolonged detention.
- While the bail process may seem straightforward, it is more intricate than most realize.
- Presenting a case for bail requires more than just making an argument; it demands strategic planning.
- Careful consideration of various factors is essential to increasing the chances of being granted bail.
- Anticipating the arguments from the Crown and the court allows for minimizing the risks of detention.
- A thoughtful approach helps secure fair release conditions for the accused.
What is bail in Canada?
Bail, also known as “judicial interim release,” refers to the system through which a person charged with a criminal offence can be released from custody while awaiting trial. It aligns with Section 11(e) of the Canadian Charter of Rights and Freedoms, which guarantees that individuals have the right not to be denied reasonable bail without just cause. The Supreme Court of Canada has emphasized that release should be the default, and detention should only occur in exceptional cases. After an arrest, the police can release the accused under conditions like a “Promise to Appear.” However, if the police choose not to release the person, Section 503 of the Criminal Code requires that they be brought before a judge within 24 hours or as soon as possible.
This is where judicial oversight comes into play. Unlike the police, whose role is to investigate and arrest, the judiciary ensures that the law and rights of the accused are upheld, including key protections under the Canadian Charter of Rights and Freedoms:
1. Presumption of innocence: Everyone is presumed innocent until proven guilty.
2. Right to reasonable bail: An accused person cannot be denied reasonable bail without just cause.
Key Considerations in a Bail Hearing
During a bail hearing, the court evaluates three main grounds to determine whether the accused should be released or remain in custody:
Primary Grounds: This refers to whether the accused is a flight risk—will they show up for future court appearances? The court may consider factors like the accused’s criminal record, immigration status, ties to the community, employment, or whether they turned themselves in voluntarily. Demonstrating strong community connections, such as property ownership or family ties, can reduce concerns about flight risk. Any criminal record must be carefully examined to show that it is either irrelevant, outdated, or minor in nature.
Secondary Grounds: This ground assesses the likelihood that the accused might commit further offences if released, which could endanger the public, including victims or witnesses. The court looks at the seriousness of the charges, the accused’s criminal history, any previous bail breaches, and the overall risk of reoffending. A strong supervision plan can help mitigate these concerns, especially if the accused has no prior record or has successfully complied with past bail conditions.
Tertiary Grounds: These focus on maintaining public confidence in the justice system. The court considers the strength of the Crown’s case, the severity of the offence, the circumstances surrounding it (e.g., use of firearms), and the potential sentence if convicted. For serious crimes like drug trafficking or violent offences, the Crown may argue for detention under this ground. It is crucial to challenge any weaknesses in the prosecution’s case and emphasize where the offence falls on the spectrum of seriousness. Even if the charges are grave, a well-structured supervision plan can be proposed to argue that detention is unnecessary.
FAQs
Is a bail hearing required for everyone charged with a criminal offence?
No, not all individuals charged with a criminal offence require a bail hearing. In many cases, especially in Toronto, police may release the accused without a bail hearing. However, if there are concerns about identifying the accused, protecting evidence, preventing further crimes, or ensuring attendance in court, the police may hold them for a bail hearing.
What is the goal of a bail hearing?
The purpose of a bail hearing is to determine if the accused can be released from custody while awaiting trial. The judge evaluates factors like the likelihood of the accused attending court and whether they might commit new offences or damage public confidence if released.
How quickly does a bail hearing take place?
A bail hearing must occur within 24 hours of arrest or as soon as reasonably possible, depending on court availability.
How does the court decide whether to grant bail?
The court looks at whether the accused will attend future court appearances, the risk of further criminal behaviour, and the potential impact on public confidence if released. Generally, the Crown must prove why bail should be denied, but in serious cases like gun possession, the accused must show why they should be released.
What occurs during a bail hearing?
At a bail hearing, the court decides if the accused will be released before trial. The Crown presents the charges and reasons for either keeping the accused in custody or releasing them under conditions. If the Crown can’t justify detention, the accused will be released, and the hearing can be adjourned for further preparation.
What is meant by “show cause” in a bail hearing?
A “show cause hearing” is another term for a “bail hearing.” It describes a situation where one side must explain why a person should or should not be detained before their trial. So “Show cause” means the Crown must prove why the accused should remain in custody while awaiting trial, showing that detention is necessary to ensure attendance at court or public safety.
What is a reverse onus bail hearing?
A reverse onus bail hearing occurs when the accused must demonstrate why they should be granted bail, often in serious cases or breaches of previous bail conditions.
What is a special bail hearing in Ontario?
A special bail hearing is necessary for complex cases that require more time than a typical bail hearing for careful assessment.
What steps must an accused take to obtain bail?
To secure bail, the accused usually needs support from family or friends who act as sureties. A surety supervises the accused and ensures compliance with bail conditions, possibly pledging a financial sum or other assets.
How does the court decide on the number of sureties and the bail amount?
The number of sureties and the bail amount depend on factors like the seriousness of the charges, the accused’s criminal history, and the surety’s ability to monitor the accused. The judge makes this decision based on the case’s unique circumstances.
What kind of information is presented during a bail hearing?
The prosecutor can present details about the accused, including their criminal record and current charges. Since the accused is presumed innocent, some details may be limited to protect the fairness of the trial. In some cases, a publication ban may be requested.
What conditions might be imposed if someone is released on bail?
Bail conditions vary but can include regularly reporting to a police station, following a curfew, avoiding certain places or individuals, and informing authorities of any changes in address or employment. These conditions ensure compliance with the legal process.
What happens if a surety can’t attend the bail hearing?
If a surety cannot attend the scheduled bail hearing, it may be postponed, which could lead to extra legal fees if a lawyer needs to attend multiple hearings.
What are the consequences if bail conditions are violated?
If an accused violates their bail conditions, they can be arrested again and brought back to court for another bail hearing, where the court may revoke bail or impose stricter conditions for future release.
What happens if the court denies bail?
If bail is denied, the accused can apply to the Superior Court of Justice for a review of the decision by a higher-level judge.
What should an accused person do after being released on bail?
Once released, the accused should meet with their criminal defense lawyer to prepare for trial and comply with all bail conditions to avoid re-arrest.
Can someone be denied bail in Ontario?
Yes, individuals can be denied bail, especially for serious crimes or if they have a history of disobeying court orders. However, the accused has the right to apply for a judicial review of the denial.
What is the cost of a bail hearing in Ontario?
There are no direct court fees for a bail hearing. However, money pledged by the accused or their surety as part of bail conditions may be forfeited if those conditions are violated.
How many bail hearings can an accused have in Ontario?
Most accused individuals are granted bail at their first hearing, but if the Crown opposes bail, additional hearings may be necessary. If bail is denied, the accused can request a judicial review, leading to another bail hearing.
What are the possible conditions of release after a bail hearing?
If bail is granted, the accused may be released under several conditions, including:
- Undertaking without conditions: A promise to attend court.
- Undertaking with conditions: Restrictions like curfews or no-contact orders.
- Own recognizance: A pledge of money to ensure court attendance.
- Surety recognizance: A surety pledges money and supervises the accused.
- Residential surety: The accused must live with the surety.
How can a criminal lawyer assist with the bail process?
A criminal lawyer can guide the accused through the bail process, helping to secure release with the least restrictive conditions possible.
Are all individuals arrested for a crime held for a bail hearing?
No, not everyone arrested is held for a bail hearing. Individuals arrested without a warrant can be released at the scene or from the police station, with or without conditions.
Does being held for a bail hearing automatically mean there will be a contested hearing?
No, once brought to court for a bail hearing, the Crown will review the case and decide whether to agree to release the individual. If they don’t agree, a contested hearing will be required.
Will a person held for a bail hearing automatically get a lawyer? Should someone find one for them?
Yes, all bail courts in Ontario have duty counsel from Legal Aid Ontario to help individuals in custody with their bail hearings. However, hiring a private lawyer is often a better option for personalized attention.
When will the bail hearing happen?
A bail hearing must occur within 24 hours of detention. If it can’t be addressed at that time, the court can adjourn the hearing for up to three days unless the defense agrees to a longer delay.
Can more than one person act as surety?
Yes, the court may require multiple sureties for adequate supervision, sharing financial responsibility if the person they supervise breaches bail.
Is a surety required to pay money upfront?
No, a surety typically does not need to pay upfront. They promise a specific amount of money that they could owe if bail conditions are not followed.
What should I bring to court if I’m acting as a surety?
Bring photo identification, proof of address, and possibly bank statements or proof of property ownership to demonstrate sufficient assets to support the bail amount.
Can I be a surety if I have a low income?
Yes, having a low income does not automatically disqualify someone from being a surety. The court focuses on the relationship between the surety and the individual to ensure effective supervision.
Can someone with a criminal record be a surety?
Having a criminal record does not automatically disqualify someone. The court considers the nature of the conviction and how recent it was.
Can I act as a surety for more than one person?
Generally, no. Courts prefer one surety for each individual due to the significant responsibility involved.
Should I seek legal advice before becoming a surety?
Yes, it’s advisable to consult an independent lawyer before agreeing to be a surety, as the defendant’s lawyer cannot provide you with advice due to a conflict of interest.
Can I withdraw as a surety after agreeing to it?
Yes, you can withdraw at any time by going to court and requesting to “pull the bail.” You don’t need to provide a reason, and a justice of the peace will issue an arrest warrant for the person you bailed out.
What if the bail conditions need to be changed?
Bail conditions can be modified through negotiation between the defence and the Crown, and if both agree, the changes can be signed off by the court. If the Crown does not agree, the defence can apply for a bail review in the Superior Court of Justice.
Is a surety always required for release?
No, the law first requires the court to consider releasing a person on their own recognizance before requiring a surety. However, it is common practice in Ontario to require sureties for release.
Do people who are bailed out have to live with their surety?
Not always. Whether the person must live with the surety depends on the conditions set by the judge during the bail hearing.
Can a surety refuse to pay if bail conditions are violated?
If a surety believes a violation has occurred, they must report it to the court immediately. However, the surety is legally obligated to pay the pledged amount if the accused fails to comply.
How Much Money Will a Surety Be Required to Pledge?
The court considers several factors when determining the pledge amount for a surety. These include the nature of the offence, where serious charges generally require a higher pledge, and whether the accused has a prior criminal record, as a history of offences may necessitate a larger amount. Additionally, the financial situation of the surety is taken into account; the pledge should be significant relative to the surety’s finances.
Does the Surety Have to Testify at the Bail Hearing?
If the lawyer cannot convince the Crown Attorney to release the accused without a hearing, the surety will need to testify in court about their relationship with the accused and the proposed supervision plan. A well-prepared surety, along with a solid plan, can increase the chances of securing a release.
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