Bail is very often the most important part of the criminal justice system for an accused person.
Whether or not a person is prepared to fight against charges is often contingent on whether the person is in or out of custody. It is essential that a criminal lawyer treat the bail process with tremendous care and preparation.
The Law of Bail
Generally, the law of bail and rules in the Criminal Code should favour an accused person’s bail application. However, practically speaking, this is often not the case and a lawyer must be prepared to come to court with a plan of release to present to the Crown Attorney. The Crown Attorney will then make a decision whether to seek the accused person’s detention or consent to his or her release. In many cases, the question of whether the Crown will consent to release the accused or seek detention is dependent on the preparation for the bail hearing.
If the parties cannot agree, the Crown will let the presiding Judge or Justice of the Peace know that he or she is seeking the detention of the accused person on one of the three grounds in the Criminal Code: i) the primary ground (that the accused will not attend for court and could flee the jurisdiction), ii) the secondary ground (that the accused is a public safety risk and there is a substantial likelihood he or she will reoffend while out on bail), and iii) the tertiary ground (that the public will lose confidence in the administration of justice should the accused person be released). The Crown can seek detention on one or a combination of these grounds.
Once the Crown has decided to seek the accused person’s detention, it is necessary to have a bail hearing, where potential sureties and, sometimes, the accused can testify as to what the plan of release is. A surety is a person that can supervise the accused and provide assurance to the court that the accused person will not breach any court orders. The surety also puts up a sum of money, which can range from a small amount to a very significant amount, to provide further assurance that there will be no breaches of court orders. It is very important for lawyers to prepare sureties for the process, as sureties can expect to be cross-examined, sometimes extensively.
After hearing from the sureties (and/or accused person), the Judge or Justice of the Peace will make a decision whether to release or detain the accused. After this decision, a very important part of the process occurs that is often overlooked: the Crown Attorney will propose conditions for release and the defence lawyer will have a chance to respond. Sometimes, conditions of bail can be very oppressive (house arrest, for example). Often Crown Attorneys will seek oppressive conditions, even in cases where it is unnecessary. The more manageable the conditions of bail are, the easier it is for an accused person to maintain their composure while fighting against criminal charges. It also makes it easier to follow a bail, which is very important because the consequences of breaching a bail can be very severe.
When a decision has been made to detain, this decision (in most cases), can be reviewed by the Ontario Superior Court of Justice. Also, conditions can be varied on a bail, either by the consent of the Crown Attorney or by applying for a bail variation in the Ontario Superior Court of Justice.
My perspective on bail is that every step must be taken to secure the liberty of the accused and to secure the most favourable conditions possible.
I have extensive experience in bail courts, as both a Crown and a defence lawyer, for various charges including aggravated assault, second degree murder, assault with a weapon, robbery, firearms offences and sexual offences. I believe extensive preparation for bail hearings is crucial and I take every possible step to get the bail proceedings right at the first instance. If you or someone you know has been arrested, is surrendering to the police or is currently being held in custody and requires a bail hearing, please call or fill out the form below and someone will return your inquiry as soon as possible.