If you are reading this page then it is likely that a friend or family member is currently in custody somewhere in Ontario. If someone is in custody, they will most likely require the assistance of a friend or family member to appear in court and promise the judge that the friend or family member (or sometimes several friends or family members) will accept responsibility for supervising the accused person in custody up to the conclusion of their criminal case. This person is referred to as a “Surety.” If you would like to act as a surety for someone, you are welcome to contact the Law Office of Norm Stanford 24 Hours a Day at (416) 420-6107. More detailed information about the Bail Hearing process follows.
When a person is arrested, they may be released from custody by the police and given a paper requiring them to appear in court and possibly for fingerprints at the police station at a point in the near future. If the person charged is not released by the police, they may be held in custody and brought to court as soon as possible before a judge or justice of the peace for a bail hearing. There is no guarantee that the person will be released. However, the chances for release are much better when a lawyer is able to prepare the friends and family of the accused to act as Sureties and a plan of supervision is in place before the bail hearing. When they are brought to court, the justice of the peace will hear from lawyers for both the person charged and the Crown prosecutor to determine if the person charged is eligible for release. Often, the Crown prosecutor will attempt to argue that the person charged should not be released before the conclusion of their criminal matter. This could mean months in jail waiting for a trial date.
A Bail Hearing may be required if the accused has been charged with a serious criminal offense or if they have previously breached conditions of release, probation, or have failed to appear in court. However, Crown prosecutors frequently attempt to argue that even some people who have never been arrested before should not be released. This is where an experienced bail hearing lawyer comes in.
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Most importantly, the bail hearing is not a trial and the court will not ask you to enter a plea. The bail hearing essentially determines if an accused person should be allowed to be released from custody before the resolution of their criminal matter. The bail hearing is also often referred to as a “show cause” hearing, as the Crown will attempt to persuade the court, or “show cause”, why the accused person should be detained in custody. In certain situations, the burden is shifted and an accused person, usually through their lawyer, must show cause why they should be entitled to release.
This show cause hearing balances a number of factors in arriving at a decision regarding release, including whether the person charged is likely to attend court and comply with court imposed conditions, whether the person charged is likely to commit any offenses prior to their trial, and the seriousness of the charges.
The Crown may present a wide range of information about the accused and about the offense with which they are charged, including their prior criminal history and specific facts relating to the charges. As everyone in Canada is innocent until proven guilty, the public disclosure of the allegations against someone could significantly impact their right to a fair trial, especially in jury situations. In certain circumstances, the accused person has the right to request a ban on the publication of any of this information. The justice can order that any information, including the reasons for release or detention, not be made public until some point in the future, usually the conclusion of the trial, many months into the future.
For most offenses, a justice of the peace may order that an accused person in custody be released on an undertaking (a type of promise) without any serious conditions. Other times, more serious forms of bail can be ordered, including an undertaking with various conditions or entering into a recognizance without or without sureties, in such amount and with such conditions, if any, as the court directs.
The accused person may be released from custody following their bail hearing with a series of conditions, things the court requires them to do, or not do, before the end of their case. Some of the conditions of release may include a requirement to report to a peace officer, to physically remain within a given area, to maintain a curfew, to notify the peace officer of any change in address or employment or occupation, to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, or any other conditions that a judge requires.
A surety is a person who is able to supervise an accused person while they are released on bail, and is usually a friend or family member with whom an accused has a daily, ongoing relationship. One or more sureties may be responsible for ensuring that the accused abides by the conditions of release set out by the court. The responsibility of being a surety is a serious one.
The surety may have to testify in court during the bail hearing to ensure that a proper plan for your supervision is in place. Occasionally the surety may be asked to pledge, or show that they have access to, a certain amount of money that would be forfeited to the court if the accused were to breach any bail conditions. The court will usually disqualify certain people from acting as sureties, including those living outside the province, co-accused, or persons with serious criminal records.
If someone on bail is suspected of violating a release condition (such as contacting the complainant when they’re not permitted to), they may be arrested and have to appear in court for another bail hearing. In some cases, the court may revoke bail and impose a custody order, or impose more stringent conditions. Similarly, if an accused person fails to appear for any of their court dates, the court may issue a warrant for their arrest and potentially charge the accused with the additional offense of failing to appear. If the accused was released on a recognizance, the court may order the accused or surety to pay the money pledged as a bail condition.
Following release, an accused person will meet with their criminal defense lawyer to prepare for the criminal case.
No. Bail Hearling lawyers are regular criminal defence lawyers. Following a successful bail hearing, most clients will have the opportunity to choose their criminal defence counsel. However, it is often the case that the lawyer that helps secure the freedom of an accused person following a bail hearing stays on as their criminal defence lawyer for the duration of their case.
If you or someone you know is in custody, the Law Office of Norm Stanford is available 24 hours a day for emergency bail hearings in the Greater Toronto Area at 416-420-6107. Courthouses attended for bail hearings include: