A Successful Defence Starts with Bail
Being charged with a criminal offence is distressing, and making bail is the first major step in your defence proceedings. Being denied bail puts significant pressure on the accused to plead guilty, even if they are innocent. The prospect of remaining in custody until trial can be daunting; being locked in a cell with the trial date months or even years away, can make a guilty plea feel like the best way to avoid the ordeal.
While the bail process seems simple at first glance, it is far more complex than many think. Stepping up in front of a judge or justice of the peace and pleading your case, arguing about risk management or how strong of a surety you have, is only part of the process, and it requires thoughtful strategy to increase your chances of being granted bail.
This strategy has to weigh all potential obstacles through careful planning and preparation. We will look at every detail of your case and apply our rich knowledge of the law to foresee arguments from the Crown and the presiding judge to minimize the risk of detention and ensure that the release terms are fair and reasonable. Any of these factors can make the difference between freedom and imprisonment.
What is a Bail Hearing?
A bail hearing is a special type of judicial proceeding.
After an arrest and after criminal charges have been laid, the police have the power to release an accused as per the Criminal Code of Canada. They can grant release with a “Promise to Appear” or another appearance notice.
However, it is their discretion to refuse a release. In this case, s.503 of the Criminal Code mandates them to bring the accused before a judge within 24 hours of the arrest or “as soon as practicable” after that. This also is when the judiciary begins to supervise the police’s work. Until now, the police have operated mostly unsupervised while they conduct surveillance, gather evidence, interview witnesses and make arrests.
So, what makes a judge overseeing matters so critical?
The answer is simple. Where the police are investigating crimes and making arrests, the judiciary only looks at finding the truth and upholding the law. And here, the Canadian Charter of Rights and Freedoms plays a significant role as it contains two crucial rights relating to bail:
The presumption of innocence
- Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
The right not to be denied reasonable bail
- Any person charged with an offence has the right
(e) not to be denied reasonable bail without just cause;
These two sections are constitutional rights that rank amongst the most important laws in Canada. And they are inseparably connected as the first asks why an accused should remain in custody if they are presumed innocent, and the second answers the question that they shouldn’t unless there is a very good reason.
Grounds for Denial of Bail
Section 515(10) of the Criminal Code provides that bail may be denied in three situations:
- Primary grounds – where it is “necessary to ensure his or her attendance in court”;
- Secondary grounds – where it is “necessary for the protection or safety of the public” or
- Tertiary grounds – where it is “necessary to maintain confidence in the administration of justice”.
Among the factors the court will consider in a bail hearing are the following:
Primary grounds examine flight risk in terms of how likely it is that the accused will fail to appear in court after a release on bail. The court may consider an accused’s previous criminal record, immigration status, family connections, ties to the community and employment status.
Concerns regarding primary grounds can be addressed by demonstrating that the accused has strong roots in the community by highlighting whether the accused owns any property, has resided at the same address or area for a long time, has family, friend or dependents, has employment, is a citizen or has no where else to go. Courts will also consider an accused’s criminal record; however, it is crucial to dissect a criminal record to demonstrate that the record may be unrelated, dated, minor or that there are gaps in the record. Courts may also consider whether the accused turned himself into custody and did not evade police. Any potential defences should be identified at this early stage in order to persaud the Court that the accused has a good reason to stay and defend against the allegations.
Secondary grounds examine whether there is a substantial likelihood that the accused would commit further offences that would endanger the protection or safety of the public (including victims and witnesses) or interfere with the administration of justice. This ground assesses the seriousness of the criminal allegations before the Court, the criminal record and history of the accused (including prior occurrences, peace bonds, discharges), any related criminal convictions, as well as any outstanding charges or previous forms of release. The ultimate question under this ground is the management of the accused’s risk to reoffend.
The lack of a criminal record can be used to suggest that the accused is a law abiding citizen or that there is no evidence that the accused would not comply with bail conditions. If an accused has a criminal record, it is crucial to examine the extent of that record in an effort to determine whether the accused successfully complied with previous releases or bail orders. Convictions related to failing to comply with conditions of a probation or bail order may be dated or could have reasonable explanations. Fail to comply convictions must be considered critically at the bail stage as they will be given great consideration under this ground. Secondary ground concerns must be mitigated by presenting a strong plan of supervision that addresses any potential concerns regarding the likelihood to offend.
Tertiary grounds focus on the need to maintain public confidence in the administration of justice. The facts that are considered under this ground include the strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the offence, including whether a firearm was used, and whether the accused would receive a lengthy jail sentence or mandatory minimum jail sentence of at least three years, if found guilty of the offence. This ground is assessed by the Court through the lense of reasonable and informed members of the public who are informed about Canadian bail laws, the Charter of Rights and Freedoms, and the actual circumstances of the case.The Crown Attorney commonly seeks detention on tertiary grounds for more serious offences, including, but not limited to firearms, drug trafficking, and homicides.
If the Crown is seeking detention on this ground, it is crucial to carefully identify any weaknesses in the prosecution’s case and raise any potential defences that may be advanced at trial. While many of these offences are considered serious, it is important to highlight where the offence falls on the wide spectrum of seriousness. A charge of possession of a loaded firearm is a serious offence, but is not as serious as firearm related charges where the individual discharged a firearm in a public space. Even if the factors under this ground favour detention, it is crucial to argue that detention is not necessary based on the plan of supervision that is being proposed.
Based on these grounds , the Judge or Justice of Peace will decide whether to grant or deny bail. If bail is granted, the Court may impose specific conditions, including, but not limited to, regularly reporting to the police, surrendering travel documents, forbidding contact with particular individuals,or prohibiting attendance at certain locations
Ultimately, the role of the court is to ensure the rights of the accused, including the presumption of innocence and the right to a reasonable bail while managing the risks with regards to attendance at future court dates, public safety and reoffending.
Our Philosophy as Criminal Lawyers
With an outstanding track record defending clients charged with all types of criminal offences, we are dedicated to professionalism to prove your innocence.
Free Case Review
Just because you have been charged with a criminal offence, does not mean that you are guilty. The prosecution must prove all elements of a criminal charge beyond a reasonable doubt. Farjoud Law is dedicated to zealous advocacy and pursuing justice for its clients. .
We have an outstanding success rate defending clients charged with all types of criminal offences, from minor crimes such as theft and assault to more serious offences, such as robbery and murder. 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 647-260-4999 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.
Bail Hearing – Reverse Onus
The burden of proof normally lies on the Crown to prove that the accused should be denied bail and remain in custody until trial. If an accused is charged with an offence described in section 515(6) of the Criminal Code , the burden of proof is reversed. In these cases, the accused has to prove that they should be granted bail and released. This principle is typically only invoked in specific situations. Most commonly, drug trafficking charges under the Controlled Drugs & Substances Act fall under this category. Also, if the accused was out on a previous release order, , has been charged with serious offences in relation to a criminal organization, or if they are facing weapons or firearm related charges and were subject to a weapons prohibition order. Recent amendments to the Criminal Code have also included charges related to domestic intimate partner violence where the accused has a previous conviction for domestic violence. Further details regarding the bail process and the recent amendments to the bail process can be found on the Department of Justice Canada website.
In a reverse onus case, the burden of proof lies on the accused and their legal counsel. They must satisfy the court that they should be released on bail with evidence and arguments. Although the burden is on the accused in certain circumstances,the underlying principles of a bail hearing still apply in that the judge must carefully weigh the evidence, arguments and circumstances of the case to determine if bail should be granted.
Prior to the Bail Hearing
A great deal of work should be done early on in a case where an individual may be turning themselves into custody for the purpose of a bail hearing. A bail lawyer should interview the accused person and any potential sureties in an effort to begin crafting a plan of supervision and understanding the personal circumstances of that individual. Details regarding various aspects of an individual’s life must be carefully considered, in terms of where they will reside, work, attend school or place of worship, communicate with family members or have access to their children. Contact details of any potential sureties, if required, should be secured as soon as possible. Preparation is key for a bail hearing and an effective bail lawyer will be able to prepare the accused and any potential sureties for what to expect at the bail hearing.
The Day of the Bail Hearing
On the day of the bail hearing, all participants convene in a courtroom at the courthouse with a Judge or a Justice of the Peace presiding. The first step is to obtain the synopsis or summary of the allegations and determine the Crown’s position with regards to bail. Bail courts across Ontario can be very busy and under-resourced which is why it is crucial to retain a bail lawyer in an effort to negotiate a release with the Crown. The defendant’s bail hearing lawyer must review the allegations with the accused and potential sureties in an effort to determine the best course of action in light of the Crown’s position on bail. A bail lawyer must determine whether the bail hearing will proceed by way of a consent release or a contested hearing.
Consent Releases vs. Contested Bail Hearings
There are two positions the Crown can take: either consent to permit the accused back into the community or oppose bail. Both decisions give the accused and their legal counsel many legal and procedural considerations.
Consent Release Bails in Detail
A consent release will typically mean that the Crown is agreeing to release the accused on some form of release with various conditions, if the accused agrees. That being said, it is crucial to ensure that the form or conditions of release are appropriate and sufficiently connected to addressing any of the concerns on the three grounds for detention. A bail lawyer must ensure that form or conditions of release are not unreasonable. The assistance of a bail lawyer can be critical in ensuring that an accused person does not agree to restrictive forms of release or conditions simply in an effort to get released from custody. The consent release position taken by the Crown is followed by a brief court hearing where the judge is formally informed of the case and asked to approve the bail as proposed. The Crown will read a copy of the police synopsis and any potential criminal record. The defence lawyer or the Crown may make additional submissions or arguments depending on the case or potential issues that may arise. If a surety is involved, the last step is vet the surety to ensure they understand their responsibilities and confirm the quantum (dollar amount) of the bond
If the judge or justice is satisfied that the proposed release and its terms are appropriate, they will order the accused into bail or recognizance. This court order is a promise between the accused, their surety and the court to abide by the terms and conditions set out and attend court as required. If they fail to obey the conditions, they risk losing the pledged money and further charges.
Following this, a return date will be selected, the order will be drafted and printed, and the accused and sureties will sign. Once it is signed, the accused is considered “on a recognizance,” meaning they are released on bail.
Contested Bail Hearings in Detail
A contested bail hearing happens when the Crown opposes the release of an accused and seeks detention on one or more of the three grounds for detention.. Unlike with a consent release, where the lawyers agree on the form, amount and terms of a release, in a contested bail hearing, the judge decides all the issues.
Another word for contested bail hearings is “show cause hearings”. They take their name from the Crown having to “show cause” (meaning prove) why the accused should be denied bail. In a reverse onus situation, the accused would have to show cause.
Contested bail hearings, whether the onus to show cause is on you or the Crown, have one thing in common: The Crown attorney will try to persuade the judge to keep you in custody.
In a contested bail hearing, the Crown and defence lawyer can present evidence and legal arguments to persuade the judge to either detain or release the accused. Typically, the Crown will begin with its grounds for requesting detention, followed by the allegations, prior criminal record and any additional information it thinks will support its case.
After the Crown presents the allegations and their position on bail, the defence has an opportunity to ask questions about the case, trying to highlight weaknesses and potentially raise issues with the charges..
Once the defence is satisfied with the answers it received, it may call any evidence of its own. This typically involves examining the proposed sureties..
It is crucial to enter the bail hearing with well-prepared witnesses. While there are some exceptions, in most cases, you have one shot at making bail, and any unprepared sureties are a very welcome target for a talented prosecutor. The Crown can question any defence witness in a cross-examination, where they can ask focused and suggestive questions to reveal any issues with the proposed plan of supervision.
After the Crown and defence have examined the witnesses, the judge will invite “submissions”, which are arguments regarding the law and evidence presented. A skilled and knowledgeable bail lawyer will argue for the accused’s release based on the strong plan of supervision proposed and the applicable case law and legislation.
At the end of the submissions, the judge will consider all evidence and arguments offered and decide whether and how to release the accused.
If the accused is released, the judge will select a suitable form of release and impose what they deem suitable terms and conditions. A return date will be chosen, and the accused and his sureties will sign the release papers.
Why retain a Lawyer for a Bail Hearing?
A successful bail hearing can make an enormous difference in an accused’s life. An accused person who is denied bail and remains in custody awaiting trial is statistically more likely to be convicted than an accused released on bail. Furthermore, being detained in custody makes it much more difficult to prepare a defence. Often small things can tip the scales to either side, and this is where an experienced bail hearing lawyer can play a crucial role.
Bail law is exceptionally complex, and nuances can determine whether you will be released or denied. A bail hearing lawyer will assist you every step of the way:
Communicating With Police
If you call us before speaking to the police, we can communicate and negotiate with the police before the decision about a bail hearing is made. Open communication between your lawyer and the officer in charge can avoid a bail hearing and explore alternatives. Making arrangements to surrender yourself into custody with the assistance of a lawyer can also reduce the amount of time spent in pre-trial custody.
Timely Bail Hearing
We advocate for a bail hearing to be held as soon as possible. Quick scheduling allows one to seek release without considerable delays which means that the accused will spend less time in custody.
Reasonable Bail Conditions
If the Court has decided to release an accused, the assistance of a bail hearing lawyer is crucial in order to prevent unjustified or unreasonable bail conditions from being imposed. Our goal is to avoid unnecessary restrictions to your life, such as free movement or the ability to work or attend school. Restrictive conditions could setup an individual for failure by breaching The more restrictive the conditions are the burden is on the accused.
Other Specific Issues
Bail conditions can impose particular restrictions, such as reporting conditions, curfews, or house arrest. We aim to minimize any such constraints to enable you to live a regular daily life.
But our assistance does not stop there. We will also provide guidance and support for you and your family, including the following:
Explaining the Bail Process and Conditions
We will take the time to explain the entire bail process, from the hearing, to what it means to become a surety and the responsibilities involved. The bail process can be overwhelming and confusing, so it is critical to make it easy to understand. This includes possible bail conditions that may be imposed by the court to ensure you can comply with these conditions and avoid complications.
Courtroom Etiquette and Behaviour
Many underestimate the importance of proper courtroom etiquette and its effect on the bail hearing. We will advise you on how to act and present yourself in court, helping you make a positive impression and show proper respect for the judicial process. This will ensure the best possibility of release under reasonable conditions.
Witness Testimony and Evidence
We will assist in the gathering of evidence that can support your case. We will also work on arranging the attendance of any potential sureties at the bail hearing if required.
Substance Abuse and Counseling
If required, we can assist with comprehensive information on available drug or alcohol treatment and counseling.
Just because you have been arrested does not mean that you are guilty. The prosecution must prove all elements of your criminal charge beyond a reasonable doubt. Farjoud Law is unafraid to take your case to trial to prove your innocence.
We have an outstanding track record defending clients charged with all types of criminal offences, from minor crimes such as theft and assault to more serious offences, such as robbery and murder. 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.
Bail Hearings – What is a Surety?
In a bail hearing, a surety acts as a guarantor for the accused by acknowledging a debt to the Crown and ensuring that the accused complies with the bail conditions set by the court. The surety is usually well-known to the accused and assumes responsibility to supervise the accused while he or she is out on bail. The surety is often described as the “jailer in the community” and is essentially signing up to be the “eye and ears” of the Court. The role of the surety is to make sure that the accused abides by all bail conditions and appear at all required court proceedings.
A surety holds significant responsibilities, including:
Reporting Breaches of Conditions
Ensuring Attendance in Court
It is crucial for any potential surety to fully understand the responsibilities and obligations being a surety brings with it, as well as the potential consequences. The court will carefully examine each proposed surety’s suitability for the role, considering factors such as their relationship to the accused, financial stability, credibility and any criminal record. These considerations will play crucial roles in the court’s decision on whether to release the accused on bail.
Bail Hearings: Available Forms of Release
Canadian bail law requires a judge to release an accused without conditions or sureties unless the Crown can prove why a stricter form of release or conditions are needed.
Bail follows the “ladder principle”, where the Crown has to prove each step from less to more restrictive forms of release or conditions. The Criminal Code states the following:
515 (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.
If the judge does not agree to release the accused without any conditions, the above-mentioned “ladder” comes into play.
(2) Where the justice does not make an order under subsection (1) [to release the accused on an undertaking without conditions], he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
The importance of a bail hearing manifests itself in several ways. The accused can work more closely with their criminal defence lawyer to create an efficient and effective strategy. Being able to prove their willingness and ability to abide by court orders and potential conditions also can lead to benefits at the end of the criminal case.
Failure to make bail can put significant pressure on an accused to plead guilty and avoid the long wait time for trial in prison, even if they are innocent.
Being released on bail also allows the accused to resume their everyday life with family, friends and work.
Farjoud Law has an excellent success rate of securing bail for individuals charged with all types of criminal offences. We have conducted countless consent, contested and special bail hearings in various jurisdictions all across Ontario. Whether our clients have been charged for the first time or they have a lengthy criminal record, our philosophy is that any one can get bail with the right plan of supervision. We are extremely diligent in preparing our clients and any proposed sureties in advance. Farjoud Law is extremely strategic and always makes an effort to anticipate any issues or arguments that the prosecutor will raise in advance. We prioritize all bail matters so that we can get our clients out of custody as soon as possible.
The cost of retaining a lawyer for a bail hearing will depend on a number of factors, including the severity and complexity of the case, as well as whether the bail hearing will proceed by way of a consent release, contested hearing or special bail hearing. We work with our clients to find a sensible and fair fee while maintaining the highest level of representation.
In a bail hearing, a surety acts as a guarantor for the accused, complying with the bail conditions set by the court. They will assume responsibility and provide assurance to the court and judge that the accused will abide by all bail conditions and appear at all required court proceedings.
Many factors can influence the chances of success at a criminal bail hearing, including (but not limited to):
- The strength of the proposed plan of supervision
- The quality of theand number of proposed sureties
- Sufficient preparation of any proposed sureties
- The experience and knowledge of a criminal defence lawyer
- The seriousness of the allegations
- The strengths and weaknesses in the evidence
- The accused’s criminal record, if any
- Compliance with previous bail orders
A special bail hearing (also referred to as a Lengthy Bail Hearing (LBH)) is a contested bail hearing that requires a greater amount of time than a normal bail hearing. As such, these types of matters cannot be accommodated in the regular bail courts. The additional time required may be due to the seriousness of the allegations which may require an additional amount of facts or evidence to be called by the crown attorney, as well as a number of witnesses which may have to testify (e.g. sureties & police officers).
Generally, it is the Crown Attorney who takes this position, if they perceive a matter to require more than two hours of court time.If you have been charged with more serious criminal offences, including but not limited to charges in relation to firearms or a large-scale organized crime investigation (also known as Project case), you may need to schedule a ‘special bail hearing’ in order to be considered for release on bail.
A special bail hearing must be scheduled in advance to ensure the availability of the sureties, criminal defence lawyer, courtroom, Crown attorney, and the justice of the peace/judge. In order to schedule a special bail hearing, the defence and Crown must complete a Request for Special Bail Hearing Court form and conduct a special bail Hearing conference.
The label of a special bail hearing can be contested by the defence at the special bail hearing conference, if the defence takes the position that a special bail hearing is not required. The special bail hearing conference call occurs between the Crown, the defence and a Justice of the Peace. During this call, the Justice of the Peace would determine the time estimate of the bail hearing. If it is determined that a special bail hearing is required, then the parties would contact the trial coordinator for the available dates.