If your friend or family member has been arrested in the Ontario area, contact criminal defence lawyer Maureen Currie at 905-847-2826 to discuss getting them released on bail as quickly as possible.
What is Bail?
After arrest and charging an individual, the police often releases a person within 24 hours with or without conditions. The accused then generally retains a lawyer and engages in the Court process. Where a person is charged with a criminal offence and is not released after arrest, the accused needs to apply for “bail”. We represent individuals charged with a criminal offence who need a bail hearing in the Milton, Hamilton, Guelph, Brampton, Niagara Region and other areas throughout Ontario. When the police hold a person for bail, he or she must be brought before a court within 24 hours of arrest at the latest.
A person will often be brought to bail court the morning after arrest. An experienced criminal lawyer can negotiate with the Crown to increase the chances of a “consent release” and to obtain favourable bail conditions. A consent release is the fastest way of getting bail. If the prosecution does not consent, then a court must decide if the accused should be detained pending trial. This is referred to as a “bail hearing” or “show cause hearing”.
It is always a priority to get a person released as soon as possible. However, rushing into a bail hearing with a weak bail plan can result in a detention order and unnecessary time and considerable expense spent in custody while the ruling is appealed. It is therefore important to get professional advice to prepare a solid bail plan at an early time. At a bail hearing a Justice of the Peace or Judge determines if the person should be released or held in custody until trial. These hearings are known as “show cause” or ‘judicial interim release’ hearings.
What is a Surety?
On television shows we often see people hiring bail bondsman or making large cash deposits with the court. This is not how bail works in Ontario. Here, you can assist getting someone out of jail by acting as a surety. Usually a large cash deposit is not necessary. Alternatively, you can assist by finding a suitable surety, if you are unable act as one yourself.
A surety is a person who promises to take responsibility for a person accused of a crime. Being a surety is a serious responsibility. The job of a surety includes:
- Ensuring the accused abides comes to court at the appointed time and abides by his conditions of a bail order or release.
- These conditions may require the accused person to report to the police and obey a curfew. The Court may also order the accused to not possess weapons, drink alcohol, or engage in non-pharmaceutical drug use, and not to communicate directly or indirectly with the victim or witnesses.
- Immediately reporting any breaches of the bail order to the police.
You may be an appropriate surety if you are relatively close to the accused (a parent, spouse, partner, relative or close friend). You should not have a recent (preferably any) criminal record. You also would be able to show the Court that you have time and interest to ensure that the accused is following his release conditions.
The role of a surety lasts until the charges are resolved by an acquittal or finding of guilt, which may take a considerable time. You can end your role as a surety at any time by attending Court with the accused and asking to be relieved of your responsibilities.
In most cases, the surety does not deposit any money with the court. Instead, the surety signs a bond promising to pay the court a fixed amount of money if the accused breaches the bail order. Bail is not reserved for wealthy people or property owners. Rather, the amount of the bond must be sufficient to give the court confidence that the surety understands the seriousness of his or her obligations.
The accused will also enter into a bond to ensure compliance with the bail conditions. In some cases, the accused will be required to deposit a sum of money to the court.
If the accused is found guilty of breaching the bail order, the Crown may ask the Court to make you pay the money you committed as a surety. An “estreatment” hearing will be scheduled. It will give you an opportunity to explain why you should not lose your money. The judge may order that you pay all, part, or none of the money you promised as a bond.
Accepting a fee or being paid back (i.e. being indemnified) in return for acting as a surety is a criminal offence.
Does a judge have to grant bail?
No – however, Section 11(e) of the Canadian Charter of Rights and Freedoms guarantees the accused the right not to be denied reasonable bail without just cause. There are some very serious crimes (eg murder) in the Criminal Code of Canada for which a judge may not grant bail unless the accused can show cause why he or she should be released. It is also up to the accused to show cause why he or she should be released, where the accused has failed to appear in court in the past or where the accused has been charged with violating a bail or release condition.
In all other cases, the Judge must grant bail unless the Crown Attorney shows that it is necessary to keep the accused in custody for one or more of the following reasons:
- To ensure the accused attends court. For example the accused may have a history of not coming to court when required.
- In order to protect the public including a victim or witnesses. For example, there is a strong likelihood that the accused will commit another offence if released from custody.
- Any other reason which shows that detention is necessary in order to maintain confidence in the administration of justice.
Does an individual need a lawyer for a bail hearing?
Yes, as a lawyer will be familiar with the rules and conditions for release, and can assist with issues of fact or evidence that may arise. What are the terms and conditions of a judicial interim release? At a bail hearing, the judge has many options, but must release the accused on the least restrictive terms possible. The person may simply be released upon a promise to appear at the trial. Otherwise, if the Crown Attorney shows cause why the accused should not be unconditionally released, the judge may put conditions on any release.
These conditions could include:
- reporting to the police regularly
- staying in the province and turning in your passport
- staying away from the victim and other witnesses and/or co-accused
- staying away from alcohol or drugs
- not possessing firearms
- paying or pledging money to the court to ensure Court attendance
- providing a surety to ensure your attendance in court. A surety pledges property or other assets which may be forfeited if the accused fails to attend or violates the conditions of release
- any other condition that the judge decides is appropriate in the circumstances
What if the accused breaks the terms of bail?
A Judge or Justice of the Peace may issue a warrant for the arrest of the accused if he or she is satisfied that there are reasonable grounds to believe that an accused has violated or is about to violate the terms of bail or has committed an indictable (serious) offence. The same applies if the accused fails to show up for court.
Breaking a bail condition without a reasonable excuse is another criminal offence that is punishable by up to two years imprisonment depending on how serious the breach is. Violations include failure to appear in court. As well as being charged criminally, a person’s bail may be revoked and the individual may be detained in custody until the court has dealt with the original offence.
Finally, if security was posted by the accused or the surety, the Crown Attorney may ask for it to be forfeited.
Can a bail hearing be adjourned?
Yes. You or the Crown Attorney may ask the judge to adjourn that is to postpone, a bail hearing. The hearing can only be adjourned for three days, if the Crown Attorney asks for the adjournment but you do not agree to it.
Can an order granting or denying bail be appealed?
Yes. The Crown or the Defence may make an application to the Ontario Court to review a bail order. It can take several weeks to get a bail review hearing as transcripts of the original bail hearing must be obtained. For this reason it is important to present a good release plan at the initial bail hearing.
If a criminal lawyer can raise a reasonable doubt about any of the essential elements of the offence, the accused is entitled to be found not guilty.
Facing Criminal Charges?
If you have been charged with a criminal offence, Maureen Currie will vigorously defend you. Maureen Currie is an experienced criminal lawyer, who has represented individuals charged with criminal offences in Milton, Mississauga, Hamilton, Georgetown, Burlington, Guelph, the Niagara Region and throughout Ontario.