If someone you know has been arrested but is not released by police, they have a right to a bail hearing before a judge or justice of the peace to determine if they may be conditionally released. However, what may seem like a straightforward process is more complex than it may seem.
What is Bail?
Bail is a legal procedure to determine if a person charged with a criminal offence should remain in custody while awaiting trial or to be released. This release may come with various bail conditions they have to abide by, such as:
- No contact with the alleged victim or complainant, witnesses or co-accuseds
- Not attending a specific location
- Live at a particular address or with a surety
- Not to possess any weapons
- Be under the supervision of a surety
A surety will be required to pledge an amount of money as part of their promise to the court to supervise an accused person.
What Happens When Someone Is Arrested?
After an individual is arrested, the police have three options. They can release the individual at the scene, at the police station or not release them at all. In the last case, the accused person must be brought to court for a bail hearing within 24 hours of arrest or as soon as reasonably possible after that. This hearing is also called a “show cause hearing,” as the Crown has to show why they think the accused should not be released while waiting for trial.
They may be released on a “promise to appear.” They may have conditions placed on them, such as not contacting one or more specific persons, staying away from particular locations or requiring the supervision of a surety.
The determination of whether to release an accused depends on several factors, including the severity of the charges, any criminal record, flight risk, risk to reoffend and to maintain confidence in the administration of justice.
The accused has the right to retain and instruct legal counsel without delay. They should ask to speak with a criminal defence lawyer immediately. An experienced Toronto criminal defence lawyer can advise the accused and assist in the preparation for a bail hearing.
What Is a Bail Hearing?
If police do not release an accused, they will appear at a bail hearing, during which the judge or justice of the peace will determine whether the accused should be released pending the outcome of their case. The Canadian Charter of Rights and Freedoms guarantees the right not to be denied bail without just cause.
It is critical to note that bail is not a guarantee. However, the Crown has to show there is good reason to believe the individual’s release poses a risk. During the bail hearing, the judge will determine whether the accused should be released and if there are any conditions imposed on them if they are released.
It is imperative that these conditions are abided by 100%. Breaking any bail conditions could mean a revocation of the bail and potentially additional charges being laid.
What is a Surety?
When an accused is released on bail, one of the possible forms of release may be being released on recognizance with a surety. A surety is somebody who knows the accused and is able and willing to supervise them while they are out on bail. The surety must report to the police if the accused violates their bail conditions or fails to attend court.
A surety must also pledge a specified amount of money they must pay if the accused breaches bail conditions. To be approved by the court, the surety must testify to their role as a surety and the proposed plan of supervision. Sureties generally must satisfy the following conditions:
- Have a meaningful relationship with the accused person (family, friend, co-worker)
- Be at least 18 years old
- Be a Canadian citizen or permanent resident
- Not have a criminal record
- Not on any pending charges before the Court
- Have assets or finances to show that you can cover your pledge
On What Grounds Can a Judge Deny Bail?
The Criminal Code of Canada sets out three grounds upon which an accused may be denied bail. It is vital to note that the Crown must only show cause under one of the three grounds mentioned below for an accused to be denied bail.
To ensure the accused will attend court when required.
To protect the public, victims and witnesses by considering whether there is a likelihood that the accused will commit another offence or interfere with the administration of justice if released from custody.
To maintain confidence in the administration of justice, bearing in mind specific circumstances such as the strength of the prosecution’s case, the gravity of the offence, the sentencing range for the offence, and whether a firearm was used.
Contact an Experienced Criminal Lawyer Today
While the bail process may seem straightforward at first glance, it can be challenging to consider all necessary details, and any error can have devastating consequences on the life of the accused if they are not released on bail. You have only one shot at bail, and if you are denied bail, you can only apply for bail through a long and challenging bail review process. Having an experienced criminal defence lawyer is critical.
Farjoud Law has an outstanding track record defending clients charged with criminal offences. We are dedicated to professionalism, client services and passionate advocacy.
If you or a loved one have been charged with a criminal offence, do not hesitate to call Farjoud Law at 647-606-6776 to speak directly to a criminal defence lawyer who personally answers all calls 24 hours/day – 7 days/week or fill out our convenient online form.