Toronto Bail Lawyer
Brian Weingarten is a Toronto criminal lawyer who has successfully represented clients both at bail hearings, and at bail reviews before the Superior Court of Justice. A bail hearing is perhaps one of the most crucial stages of a criminal case. Aside from the stress that comes from being held in jail for months to years at a time before your case is even decided, being held in custody makes it difficult to prepare a defence to the charges. If you are ultimately found not guilty of the charges, the time spent in jail awaiting the outcome of your case can never be recovered.
What is a Bail Hearing?
When an accused is arrested and is not released by the police by an Appearance Notice, Promise to Appear, or a Summons, he or she will be held for a bail hearing. A bail hearing is also referred to as a “Show Cause Hearing.” Under the Criminal Code, everyone has a right to be brought before a Justice of the Peace within 24 hours of his or her arrest if one is available. As a result, Bail Courts 7 days a week, 365 days a year.
It is not uncommon for bail hearings to be adjourned for a short period of time to allow defence counsel to arrange for sureties to attend at court, to prepare submissions, and to put together a comprehensive release plan. Adults are only granted one bail hearing, so it is essential that the strongest case possible for release be presented to the Court.
At a bail hearing, the defence will make submissions to the Court and attempt to demonstrate why the accused should be released pending the trial. The Crown will argue for the client’s detention.
If sureties are being proposed, the defence will call these individuals as witnesses. Both the defence and the Crown will then ask questions of the sureties as to their ability to monitor the accused and ensure that they will follow any conditions imposed upon them by the Court.
Who Has the Onus of Proof at a Bail Hearing?
Generally, the Crown prosecutor will have the onus of satisfying the Justice of the Peace that the accused should be detained pending the resolution of the case.
In certain situations, the onus will be reversed and the accused will have to demonstrate why he or she should be released into the community pending the resolution of the matter. The situations where a reverse onus will apply include circumstances where the accused include:
- facing charges for a subsequent indictable offence while currently being out on bail for an initial indictable offence;
- facing charges for an indictable offence involving a weapon where the accused is under a weapons prohibitions;
- facing charges for an indictable offence where the accused is not ordinarily resident in Canada;
- facing charges for breaching a condition of a recognizance or undertaking, failing to appear at court, or failing to comply with a summons, while already being out on bail;
- facing select charges under the Controlled Drugs and Substances Act where the maximum penalty is life imprisonment.
How Will a Justice Decide Whether to Release an Accused on Bail?
The Criminal Code of Canada mandates that a Justice consider three grounds when considering whether or not to release an accused on bail. These grounds are:
1) The Primary Ground – Whether detention is required to ensure that the accused will attend court.
This ground assesses whether the accused is a flight risk. Being able to demonstrate that the accused is a Canadian citizen, or that he or she has roots in the community, often goes a long way to satisfying the Court that there is no reason to detain an accused on this ground.
2) The Secondary Ground — Whether detention is necessary for the protection or safety of the public, including any substantial likelihood that the accused will commit further offences if released.
Many bail decisions turn upon secondary ground concerns. If the accused’s lawyer can present a compelling release plan to the Court, inclusive of strong sureties, appropriate conditions/restrictions on the accused, and a meaningful financial pledge, this will often go a long way to satisfying the Court that the accused should be released on bail.
An effective and diligent criminal defence lawyer will spend the necessary time speaking to potential sureties, examining the types of conditions/restrictions that Courts have typically accepted in the past, and proposing a comprehensive release plan to the court which satisfies any secondary ground concerns. An effective criminal defence lawyer will also attempt to develop a release plan that restricts the client’s liberty as little as possible.
3) The Tertiary Ground — Whether detention is necessary in order to maintain confidence in the administration of Justice.
Under the tertiary ground, the Justice examines whether an accused should be detained in order to maintenance the public’s confidence in the justice system. Under this ground, a Justice examines the apparent strength of the prosecution’s case; the gravity or severity of the offence; the circumstances surrounding the commission of the offence, such as the use of a firearm; and the possibility that, if convicted, the accused will be subject to a lengthy prison term.
It is not common for a Justice to detain an accused solely on the Tertiary Ground, but it does happen occasionally.
What is a Surety?
Having an effective surety will go a long way to persuading a Justice to release an accused on bail.
A surety is an individual who essentially acts as a “citizen jailer.” As a surety, your obligation is to the Court and not the accused. A surety is someone who will monitor the accused while they are out on bail awaiting the conclusion of their case. The surety will also ensure that all of the conditions imposed by the Court on the accused are followed. These might include making sure that the accused follows a curfew, attends school, stays away from certain grounds of people, avoids using the internet or a cell phone, or attends doctor appointments. Most importantly, a surety must make sure that the accused attends court.
If you agree to act as a surety, you must promise the Court that you will ensure that the accused complies with all the conditions imposed upon him or her. If you learn that the accused has, or is about to breach any of the conditions, your obligation is to immediately call the police.
Can I Act as a Surety? How Much Do I Have to Pledge Under a Recognizance?
Your suitability to act as a surety will be determined by a Justice at the bail hearing. However, if you act as a surety, you are not permitted to accept any monetary or other benefit in exchange for acting as a surety.
In some circumstances, the Court might require that the accused actually reside with the surety. In these cases, the surety must be willing and able to allow the accused to reside with them.
If an accused is released with sureties, the sureties must have some type of assets to pledge to the Court. This amount is not paid to the Court right away. However, if the accused breaches the conditions of their bail, the Court might require you to pay the amount pledged. This is called an estreatment proceeding.
The Justice will determine the amount to be pledged. The client’s defence lawyer will be able to assess the expected pledge depending upon the circumstances of the offence and the financial situation of the accused and his or her proposed surety.
What Characteristics Do Good Sureties Have?
Some characteristics that help to make a strong surety are:
- Being a Canadian citizen
- Not having a criminal record
- Having lived in a particular community for a lengthy period of time, or having strong roots in the community
- Depending on the nature of the offence, being available during the day and weekends to monitor the accused
- Having a strong relationship with the accused
- Being familiar with any criminal history/record of the accused
- Being able to control the accused, and being able to demonstrate situations where the accused has followed your instructions
- Being able to pledge a meaningful amount in support of the accused’s release
- Being able to provide the Court with proof of the assets backing your “pledge.”
How Do I Stop Acting as a Surety?
In some situations a surety may decide that they no longer want to, or are no longer able to act as a surety for the accused. In these cases, the surety may be relieved of their obligations by either: 1) bringing the accused to court and asking to be relieved of their obligations as a surety; 2) applying to the Court in writing asking to be relieved of their obligations.
What are Bail Reviews? How can I Change the Conditions of My Bail?
If a Justice makes a determination that an accused should be detained in custody, a bail review may be brought to challenge this decision. Under the Criminal Code, an accused may challenge their detention on two grounds:
- The justice made an error in principle in making the decision to detain the accused
- There has been a material change in circumstances affecting the accused.
An error in principle includes the failure to consider a relevant consideration, or misapplying or misinterpreting a legal principle. A material change in circumstances might include a new surety coming forward who was not available at the time of the initial bail hearing.
Even if an accused is released on bail the accused might, in certain circumstances, challenge individual conditions on a bail review. More commonly, where an accused that is out on bail requires a change to the conditions, defence counsel will attempt to negotiate an amendment with the consent of the Crown. However, even if an amendment is proposed on consent, it is always up to the Justice of the Peace to approve the proposed change.