Freedom Before Trial: Bail Hearings

Your first contact with Bernstein Law Group maybe when you — or a relative or friend of yours — call us to get you out of jail after an arrest. Without bail, you will have to stay incarcerated until your trial, which may be several months away.

Bail hearings are a vital part of our practice. We are ready to come and see you as soon as possible. However, it's important to not only get you out but get you out with conditions that are as favourable as possible.

It's also important to keep you out; bail revocations are not uncommon, and it can be even harder to get out the second time you are brought back in under section 524.

Arguing For Liberty

Your bail hearing isn't really about whether or not you're guilty but about whether you should be out of jail while your guilt is decided. The Crown may argue several points, including:

Attendance: If you are unlikely to attend your court date, you are less likely to get bail. If you have skipped court dates before, even if your charge is minor, your chances of getting out again go down.
Protection of the public: If you have a criminal record, or the Crown feels you may try to hurt the alleged victim, or you have committed a crime while on bail before, your chances are also slimmer.
Evidence: If the evidence against you is strong, the Crown may argue that it would not look good for the justice system to allow you out before your trial.
The seriousness of the charge: Charges like murder, serious assault, and sexual assault charges are more challenging in terms of getting bail.

We will discuss your chances before asking for bail. Even in serious cases, or in cases where you were out on bail and something went wrong, we may be able to get you out with restrictions such as having to live with a surety, surrendering your passport, posting money for bail, and other conditions.

For most of our clients, the lawyers' aim is not just to get you out but to make your life as close to normal as possible while you await your trial.

Bail is the conditional release of an accused against a set sum: a certain amount of money, or property, that is to be held by the court until the case is over – basically, an incentive for an accused to appear and participate in every required court appearance, and respect any issued court dates.

Besides the verdict itself, bail hearings, under the right to reasonable bail, are perhaps one of the most crucial components of any criminal process.

Most often, the money is “pledged”, meaning the surety does not need to bring a cash bail to the court, but rather, have access to the funds and be willing to lose it, should the accused person breach.

What is Bail?

Also referred to as a judicial interim release and Recognizance of Bail, bail is essentially a pledge made to the criminal court to ensure that the accused would appear and participate in upcoming court appearances.

Bail hearings are typically an accused person's first appearance before the judge. The hearing takes place at the arraignment – that is, where the charges are made clear to the accused, and they are asked to plead either guilty or not guilty.

Under Section 503 of the Criminal Code, the accused is to be brought in front of a judge within twenty-four hours of the arrest for a bail hearing. If not in twenty-four hours, then as soon as possible.

The bail hearing is usually concurrent with the arraignment, but in some cases, the initial hearing might not be wherein the bail amount and stipulations are set. In which case the hearing must be scheduled within the next three days.

Factors That Affect Bail

It is important to understand that posting bail while an accused awaits the trial is in no way an admission of guilt. The bail hearing in itself is meant to elaborate on the allegations, and not necessarily on the alleged offender.

Simply put, The Crown states their case on the nature and severity of the crime and argues whether the crime should or should not be considered as a bailable offense.

There are, in fact, several factors that the judge takes into consideration when starting the bail process:

• Sufficiency of the evidence levied against the accused
• Whether the accused is subject to bail conditions in a separate case
• Past criminal charges, history of any criminal cases, criminal record, and current parole status
• The seriousness of the charges
• The accused’s history and previous appearances in court hearings

Bail Conditions

Bail is quite literally a conditional release; the release is subject to the accused complying with the conditions and stipulations set forth by the court. While these conditions vary from one court to another, the terms are typical as follows:

• Forbidden contact with the victims
• Forbidden from leaving the province without prior notice, and not without just cause
• To attend mandated counseling
• Possibly implementing a curfew
• Report to their assigned police officer at a certain given time

There are, however, several “non-bailable offenses”, such as treason, murder, and crimes against humanity. However, in certain conditions, the presiding judge can consider these crimes as bailable offenses – granted that the onus of the crime would warrant a higher bail.

The right to bail is imperative to maintain the administration of justice effectively. Section 515 (10) of the Criminal Code of Canada elaborates on certain conditions wherein the court might deny an interim judicial release or a pre-trial release for an accused:

• When detention (through a detention order) is necessary to ascertain court appearance
• When public safety is threatened
• A high likelihood of the accused committing the offense again
• Cases wherein The Crown has gathered sufficient evidence against the accused

The Bail Hearing

Under Section 11(e) of the Canadian Charter of Rights and Freedom, any person charged with an offense has the right not to be denied bail without just cause.

The accused is held in holding before they are to appear before the judge for their initial appearance, pre-trial appearance, or bail hearing.

In some cases, the pre-trial might consist of The Crown Attorney presenting a synopsis of sorts of the charges levied against the accused and he or she is given the opportunity to plead guilty or not guilty.

In the event an accused cannot attain a bail hearing lawyer, one will be provided for them through Legal Aid typically. Although the accused holds the right to waive the need for a criminal defense lawyer until the actual trial itself or to defend themselves in the event the judge examines them.

A typical bail hearing goes as follows:

1. The Crown reads out the charges levied against the accused. The Crown mentions the accused’s past offenses, track records, and instances (if any) wherein they did not adhere to bail conditions.
2. The lawyer or duty counsel provides evidence to support the accused’s moral character or presents a potential surety – that is, someone who agrees to supervise the accused. The lawyer for the accused will present as strong of a case as possible for release and make a suitable plan that will appease the court and help prevent the risk of reoffending.
3. The judge makes a determination based on the facts of the case.
4. While a bail hearing might seem like a short trial, it actually holds no standing in determining an accused’s guilt. The actual trial succeeds the bail hearing.

What Is Show Cause?

Show cause refers to the Crown's obligation to demonstrate why the accused individual's custody should be extended. The Crown must establish that your imprisonment is justified on one of the following three reasons for show cause to be successful:

• Primary Ground: Your detention is required to guarantee that you appear in court.
• Secondary Ground: Your detention is required for public safety, to stop future crime, and to protect witnesses from possible intimidation; and,
• Tertiary ground: Your continuing detention is critical to maintaining public trust in the judiciary.

What Is Reverse Onus?

During a bail hearing, the Crown Prosecutor, acting on the behalf of The Crown, usually has the burden of verification to establish grounds for your prolonged detention.

Under some situations, however, this duty might be flipped, leaving your legal team to defend your release from detention. In this case, the accused has the burden to prove their eligibility to be released, also known as the reverse onus.

• The Crown has applied to have your bail revoked because you were previously freed on bail but failed to comply with your terms.
• You've been accused of violating the terms of your bail.
• You've been accused of violating a conditional sentence.
• While on bail, you have been charged with a new offence or multiple new offences.
• You've been accused of major crimes including drug trafficking, weapons offences, terrorism, criminal offences, or violations of the Security of Information Act.

Who Can Be A Surety?

For individuals who wish to present themselves as surety during a criminal proceeding, they are required to check-off several stipulations as specified by the Canadian courts.

They must be acquainted with the terms of the bail. If bail is denied, an accused person is able to appeal their bail.

In what would essentially be a bail review, the terms of the original bail hearings are presented again in front of a Superior Court Justice of the Ontario Superior Court of Justice, which is a higher court than the Ontario Court of Justice, where your bail hearing would have taken place before a Justice of the Peace.

Bail appeals are not the same as the initial bail hearings: the reviewing judge cannot supersede the initial judge’s decision. Rather, the accused’s legal teams try to prove that a major legal error has occurred during the initial hearing.

For example, a misreading of the applicable legal test or misrepresentation of the facts of the case.

Additionally, if there has been a material change in circumstances, an accused person may be eligible for release on that basis.

What is an Appellate Court?

An appellate court is one wherein a bail review is conducted. This court is not the same court where the bail hearing took place and the presiding judge will also be different.

The burden of proof is on the accused to present that he or she had been denied bail based on whether or not the trial court conducted an abuse of the justice system or whether there was an error in deciding bail.

The Crown is present during the bail review and in fact, the revised stipulations of the bail as per the appellate court may sometimes be consented to by The Crown.

Compared to criminal appeals of convictions and sentences, bail reviews before the Superior Court of Justice are likely to have a higher success rate and are well worth pursuing if you have the resources and intend to take your case to trial.

Considerations When Remanded In Custody

In case the bail has been denied by both the trial court and the appellate court, the accused will be remanded in custody while awaiting trial.

In the event that the accused has been found guilty of the charge and sentenced to a criminal sentence, his or her time while being remanded will be reduced based on the length of time he or she spent in custody before the trial.

Although it tends to change, an accused person can expect to get 1.5 days for every 1 day served in custody, and sometimes better depending on the circumstances and the decision of the presiding justice.

In many cases, cash deposits as bail are not manageable for the accused’s family members and loved ones.

Having an experienced bail lawyer by your side that knows the criminal law surrounding bail can be incredibly valuable. Our lawyers will leave no stone unturned.

Contact Bernstein Law Group

At the Bernstein Law Group we will work tirelessly on your case and come up with the best plan possible in the circumstances for your release. Our law firm services Hamilton, Barrie, Brampton, Newmarket, Toronto, Ontario and the rest of southern Ontario.

Bernstein Law Group believes in giving their client holistic legal advice through free consultation before offering their services as your legal representation. Contact our law firm at your earliest opportunity to discuss your case or your loved one’s case.