Understanding Bail Hearings in the Criminal Justice System

What is a Bail Hearing?

A bail hearing is a process that comes into play when someone is charged with a criminal offence(s) and arrested. They may be released from the scene of their arrest, at the police station, or later at their bail hearing. If they are released from the arrest scene or the police station, methods such as a summons, Appearance Notice, Promise to Appear (with or without an undertaking), or Recognizance of Bail(with or without an undertaking) are utilized.

If they are not released this way, they have to have a bail hearing. A bail hearing takes place in a criminal courthouse shortly following the accused’s arrest. At a bail hearing, a person’s release is decided. The Judge or Justice of the Peace has to determine whether the accused would be released or held in custody until the criminal charges they are detained on are resolved. 

Factors Considered for Release or Detention

This process can be compared to a short trial, but instead of assessing innocence or guilt, it evaluates whether someone should be released or not. There will be situations where the Crown will consent to the release of the accused. If the release is consented, both the defence lawyer and the Crown would submit to the Judge/Justice that the accused should be released. In this scenario, the terms for the accused’s release have to be negotiated by the Crown and defence lawyer, with the defence seeking the least restrictive bail conditions.

However, in more serious cases, it is likely that the Crown might not consent to the accused’s release. This leads to a contested bail hearing. During contested bail hearings, the responsibility lies with the Crown to show through their submissions that the accused should be detained based on primary ground grounds, secondary grounds, and tertiary grounds. 

Reverse Onus Bail Hearings: Burden of Proof and Defence Strategy

If the accused is being detained because they breached their bail or probation, a reverse onus bail hearing will occur. In this case, the defence needs to prove that the accused should be released by demonstrating that the accused does not constitute a danger to the public and is not a flight risk. The defence has to present the best possible plan of release, demonstrating that the accused can comply with a good plan of release.

Assessing Grounds for Release or Detention

The decision to release the accused depends upon three points assessed by the Justice of the Peace: 

Primary Grounds

Primary grounds evaluate whether the accused will leave or present at their subsequent court dates to face their charges if released. It also considers whether the accused is a flight risk. 

Secondary Grounds

Secondary grounds examine if the accused released could potentially be dangerous. This includes factors like their likelihood to commit further offences, contact the complainant in relation to their charges, or breach the conditions of release imposed by the court. 

Tertiary Grounds

Tertiary grounds handle other ‘just causes’ for detention like the apparent strength of the case against the accused, the gravity of the alleged offences they are charged with, and the circumstance of those alleged offences. It also considers the potential for a lengthy term of imprisonment, or whether a minimum sentence of three plus years is required for the alleged offence.

The Role of Surety in the Bail Process

A surety is someone who can be a friend, family member, or partner of the accused. This individual expresses their willingness to sign bail for the accused, facilitating the accused’s release from custody. 

Legal Obligations and Duties of a Surety

The role of the surety requires them to pledge or sign an amount of money, which solidifies the seriousness of their responsibility. The surety carries the responsibility of supervising the accused and ensuring they comply with the conditions of their bail. 

If the accused violates the conditions of their bail, it becomes the surety’s duty to contact the police or the office of the Justice of the Peace, leading to the withdrawal of the bail. However, failing to report a breach of bail conditions by the accused could result in the surety potentially losing the amount of money they signed the bail for. 

Qualifications and Criteria for Becoming a Surety

There are certain qualifications for a person to become a surety. They must lack a criminal record, be at least 21 years old, be either employed or retired and not be an employee of the accused. Furthermore, they must be a Canadian citizen or a landed immigrant and should demonstrate that they can afford the amount of money required for the bail. However, the judge or justice may use their discretion, as these requirements are not absolute.

What Happens at a Bail Hearing?

Initial Interview and Preparation

At a bail hearing, your Toronto criminal defence lawyer or duty counsel starts the process by interviewing the accused and the potential surety or sureties. The intention behind the interview is to collect general information about their background. Essential details like their age, address, education, employment, and living situation are gathered.

Using the collected information, an appropriate plan of release for the accused is constructed. This plan is later presented to the court. Once the time comes, the Crown will have the accused brought into the court. The allegations against the accused are then read out. 

Introduction of the Surety and Release Plan

The Defence lawyer presents the surety and the plan of release for the accused. If the release of the accused is contested, the Crown will cross-examine the surety. The objective of this cross-examination is to identify and demonstrate weaknesses in the defence’s plan of release. 

Defence and Crown Submissions

The defence makes submissions, providing reasons as to why the accused should be released. The Crown then makes their arguments as to why the accused should not be released. After hearing both sides, the judge or justice will decide whether the accused should be released.

Potential Outcomes and Next Steps

If the accused is not released, they will likely be held in until their charges are resolved. Charges are typically resolved either through a guilty plea, trial, or withdrawal of the charges by the Crown.

If you or someone you know is facing criminal charges and has an upcoming bail hearing, contact our experienced bail hearing lawyers for advice.