Table Of Contents
- How to Get Bail for Criminal Cases in Toronto
- A Successful Defence Starts with Bail
- What is a Bail Hearing?
- Why a Bail Hearing?
- Bail Conditions
- The Various Types of Bail Hearings
- The Day of the Bail Hearing
- Consent Releases vs. Contested Bail Hearings
- Bail Hearings: Available Forms of Release
- Summary of Ontario Bail Hearings
- Understanding the Complexities of Bail Hearings in Toronto
- Skilled Legal Knowledge to Ensure Proper Rights and Defence
- Take the Stress out of the Process with Expert Consultation
- Dedicated Advocacy for Your Rights During a Bail Hearing
- FAQ’s
How to Get Bail for Criminal Cases in Toronto
If you or a loved one have been accused of a crime, contact Fedorowicz Law immediately to obtain a quick and reasonable bail. Depending on your case, you might not require a bail hearing to be released from the police station. Fedorowicz Law may be able to negotiate your release with the police without appearing in Court. Our main priority is to secure bail so you can be released from jail, allowing you to continue your life with family and work. Criminal cases can take several months before trial, so your freedom is vital.
A Successful Defence Starts with Bail
A bail hearing is a crucial step in any criminal proceeding. Being released on bail means more than just freedom and the ability to go on with your life and work; it also means that you can work closely with your Toronto criminal lawyer to build the best strategy for a strong defence.
A failure to secure bail can have severe consequences. It can take months, sometimes even years, until a trial will take place, and the harsh life in a correctional facility can put significant stress and pressure on an accused person. This can lead to a guilty plea, even if they are innocent.
This is why having an experienced criminal lawyer by your side is critical to guide you through the complex bail process. There is far more to it than just arguing about risk management or the quality of a surety. The law has many potential pitfalls. Minimizing the risk of detention requires a prudent approach to planning and deep knowledge of the law. Every case is different, so it has to be examined from every angle to foresee any potential obstacles and objections from the Crown and the presiding Justice.
Being able to navigate through this process diligently and efficiently can mean the difference between freedom and imprisonment.
The Toronto criminal lawyers of Federowicz Law have conducted hundreds of bail hearings on both sides of the Court. We will use this experience to work with you to create a strategy that will increase your chances of release.
What is a Bail Hearing?
A bail hearing is a specific type of judicial proceeding.
The Criminal Code of Canada grants police the power to release the accused after charges have been laid and an arrest has been made. In certain circumstances, the police may exercise their right not to release a subject. In this case, the Criminal Code requires police to bring the accused before a Judge or Justice of the Peace within 24 hours of arrest, as per s.503 of the Code:
- (a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
- (b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible […]
At this point, the criminal proceedings take a crucial step forward. Before this, the case is investigated by police alone, surveilling, gathering evidence, interrogating witnesses and making arrests. Once the bail hearing is scheduled, this changes and brings judicial oversight into the proceedings. This is important as the judge does not investigate the crime itself but is tasked to find the truth and uphold the law. The Canadian Charter of Rights and Freedoms contains two of the most important laws of our country relating to bail.
The first is the presumption of any accused person being innocent until proven guilty. The second is that any person charged with an offence has the right not to be denied reasonable bail without just cause. It is important to note that both are constitutional rights, meaning they supersede the Criminal Code and police authority.
In most instances, the burden lies on the Crown attorney to explain why the accused should not be released from custody. In a “Crown onus” bail hearing, the Crown attorney must establish on a “balance of probabilities” why the detention of an accused is necessary until trial. The exception to this rule is if the offence is designated as a “reverse onus” (for example, drug trafficking) or the accused is currently released on bail, in which case the burden will be on the accused.
Whether it is a Crown or defence onus bail hearing, the final decision whether an accused will be released or held in custody until their trial date is always with the judge. The judge will consider all the relevant circumstances, including:
- The nature and severity of the allegations
- Whether the the accused has a criminal record
- Is the accused on bail for other outstanding charges
- Will he/she appear for their trial
- The strength of the plan of release and the proposed sureties
Why a Bail Hearing?
Bail hearings are a crucial step in the legal process of criminal prosecution and are necessary to determine an accused’s right to bail justly.
The judge will have to consider the following:
To ensure that the accused attends court:
- Has the accused a history of failing to attend court?
- Has the accused a history of failing to abide by court orders?
- Is there a risk that the accused would flee the jurisdiction?
In addressing the protection of the public, the judge will consider:
- Does the accused have a criminal record for similar offences?
- Is there a history with the same complainant?
- Will the accused commit other crimes?
To maintain confidence in the administration of justice, the judge has to consider:
- The apparent strength of the prosecution’s case
- The gravity of the offence
- The circumstances surrounding its commission
- The potential for a lengthy jail term
In respect to the strength of the Crown’s case:
- Is the police still gathering evidence for the case?
- Are there defences to the charges?
- How strong is the evidence? For example, is there video evidence?
- Did the police violate your right under the Charter of Rights?
Due to the high caseload of Toronto area courts and their limited resources, it can take several months from the arrest to a trial date. A denied bail could mean they must remain in custody for the whole duration, even if they are innocent.
This is why it is critical to contact Fedorowicz Law. Richard has years of experience in criminal defence proceedings and will be able to answer any of your critical bail hearing questions and concerns. Call 249-266-4222 today to find out how we can help you with your bail hearing.
Schedule a Consultation With Richard Fedorowicz Today
Bail Conditions
If the Court determines that the accused is eligible for bail, it can set specific conditions for them. Common examples include:
- Not to leave the country, and to surrender any passport.
- To reside at a certain address, including abiding by court-set curfews.
- To be of good behavior, not to commit any further criminal acts.
- Not to attend certain places, or to stay away from addresses. This can vary greatly depending on the individual case but can include places known for criminal activities, a matrimonial home in the case of a domestic assault, or any places with minors in attendance.
- Not to communicate with certain persons such as spouses or witnesses.
- To report to the police daily, weekly, or monthly.
- To abstain from the consumption of alcohol or drugs
The Court also may require someone to assume the role of a surety. A surety is responsible for ensuring the defendant strictly follows their bail conditions. To do so, sureties have the liberty to take any necessary measures and may even implement new rules the defendant must follow. The Court may also ask that the surety provide a bail bond.
To qualify to be a surety for a bail hearing, you must meet the following criteria:
- You must be a Canadian citizen or a landed immigrant,
- You must be an adult (18+),
- You should not have a criminal record, and
- You cannot be a surety for more than one person at the same time
The Court might demand that the accused live with the person who is the surety from the date released from jail to their court date. The surety should ensure to have proof of identification and documents proving sufficient assets to sign the bail bond when attending the bail hearing.
Assets which qualify for a bail bond are:
- Canadian savings
- A deposit account with a chartered bank
- GICs other investments or
- Real property (ownership of a home, apartment, condominium, cottage).
Please note that a line of credit, credit card, or other assets such as a car will not qualify as proof of assets for the purposes of bail.
The Various Types of Bail Hearings
Generally, there are two different types of bail hearings, which differ in who bears the burden of proof.
Crown Onus Cases
In these cases, the Crown or the prosecutor carries the burden of proof to justify the detention of the accused. They aim to prove that the accused poses a danger to society and, therefore, cannot be released from custody.
Reverse Onus Cases
In these cases, which are rarer than Crown Onus, the accused must justify their release on bail until the trial date.
The Day of the Bail Hearing
Generally, a bail hearing will be held in a courtroom at the courthouse in front of a judge or a Justice of the Peace. A Crown attorney will be the representative of the police and lay out the reasons why the accused should remain in custody until the trial. They may agree to a release from custody but might ask the Court to set certain conditions upon the release.
If the Court determines that the accused may be released, they must follow any bail conditions and regulations; otherwise, their release may be revoked. This is why it is critical to have an experienced Toronto criminal lawyer present at the hearing to prevent any unrealistic or unduly harsh conditions from being placed upon the accused. The lawyers of Fedorowicz Law have attended hundreds of bail hearings and will use their expertise to work toward a bail release without or on reasonable conditions.
Consent Releases vs. Contested Bail Hearings
Once an accused arrested has been brought to Court for a bail hearing within 24 hours (or as soon as possible), a Crown Attorney will review the file. During this review, the prosecution will determine its position concerning releasing the accused into the community.
After their review, the Crown has two options: consent or oppose. The former means they agree to permit the accused back into the community, while the latter opposes a release. The file the Crown Attorney receives from the police contains their reports and findings, which often focus on the negative sides of the accused, so here, the role of a criminal defence lawyer plays a crucial role as they can bring in additional information about the accused, potential weaknesses in the case or the strength of a proposed plan of defence.
If simply faced with the information from the police, the Crown Attorney likely would oppose the release of the accused, a skilled defence lawyer can change this decision to consent. This would allow an accused to resume their regular life with family and work instead of remaining in custody, while the bail conditions also would be much fairer than they would have been without the help of a lawyer.
Consent Release Bails in Detail
In the vast majority of cases, a prosecutor’s consent will ensure an accused’s release on bail, unless there are unusual and extenuating circumstances. In general, judges will not interfere with the decision of a prosecutor to allow an accused person to be released from custody.
In most cases, a brief court hearing follows, where a judge or justice of the peace is informed of the case and decision and asked to grant bail as proposed. Generally, the Crown Attorney will read a copy of the police synopsis and any potential criminal record of the accused. The defence lawyer or attorney may present additional arguments or submissions depending on the case. Then, the conditions and amount of release are discussed and set, and if one is required, a proposed surety is vetted.
A surety is responsible for ensuring the defendant strictly follows their bail conditions. The vetting of a surety can take different forms, depending on where you are. Some jurisdictions require testimony in open Court, while others require questions and answers without being sworn in or taking the stand. Your criminal lawyer will be able to advise which is the case in your location.
Once the presiding judge or justice of the peace is satisfied that the proposed release is appropriate and all terms have been agreed on, they will order the accused into recognizance. This is a form of bail in which a party “recognizes” that they owe a duty to the state. It constitutes the promise of the accused and their surety to follow and obey the terms and conditions set out in the bail documents and attend required court hearings. If the conditions are breached, they risk losing the deposited monies, and the accused person risks further charges.
When the bail has been ordered, the Court will set a return date for the case, and the order will be drafted and printed. The accused and their sureties will sign, making bail official.
Contested Bail Hearings in Detail
If the Crown Attorney and the defence lawyer cannot reach a consensus on releasing the accused, the case becomes a contested bail hearing. Contrary to a consent hearing, where the defence lawyer and the Crown Attorney agree on the form, amount and terms of a release, the judge makes the decision.
Another phrase for contested bail hearings is “show cause hearings,” as the Crown usually has to “show cause” why the accused person should not be granted bail. Due to the constitutional rights we mentioned above, the presumption of innocence and the right not to be denied reasonable bail without just cause, the responsibility rests with the Crown.
In some cases, the situation is reversed, and the accused is responsible for proving why they should be granted bail. This happens only in particular cases, such as when an accused person is re-arrested and charged with additional offences while released from custody on bail. It also can occur in serious drug trafficking or criminal organization offences. This is the “reverse onus” case outlined above.
Due to its contested nature, the judicial hearing will involve many more steps than a consented hearing. The Crown and the defence lawyer are invited to submit evidence and legal arguments to persuade the judge or justice to release or detain an accused. The Crown usually outlines the reasons for their request to detain the accused, including allegations, potential prior criminal records, and any additional information that may support their case.
After this, the defence lawyer can ask questions about the case. The strength of the criminal case is one of the most significant factors during a bail hearing. The weaker the evidence, the more likely a judge will consider granting bail to the accused as they await the trial date. A skilled bail hearing lawyer on your side will be able to highlight any weaknesses in the Crown’s case, thus increasing the chances of release.
After this, the defence lawyer can call any evidence of their own, such as examining one or more sureties or calling their own client as a witness. There are strict limitations on what can be asked of an accused, so it usually is about their background and willingness to be supervised by the courts, a bail program, or their sureties.
One of the worst things that can happen is an unprepared surety that the prosecutor can pick apart and ruin the chances for a release. A criminal lawyer will spend a reasonable amount of time preparing the witnesses. Naturally, the more severe the charges, the more preparation is required. If bail is denied, the decision is final, with the only option being to appeal the decision, called a “bail review”.
The Crown is permitted to question any of the witnesses in cross-examination, which will put the accused’s plan of release to the test.
After the evidence is concluded, the judge will invite “submissions,” which are arguments based on evidence and the law. This is another point in the hearing where a skilled defence lawyer can build up their client’s case for a release.
After the submissions are completed, the judge will decide whether to release the accused.
If the accused is released, the judge will select the release form and set the terms and conditions for the release. They will also establish a return date, and the accused and sureties will sign the release papers.
If the accused is detained, the judge will invite their defence lawyer to set a return date to allow for the receipt of disclosure.
Bail Hearings: Available Forms of Release
One of the most common release plans in Ontario involves sureties. It is a convenient way to pass on the responsibility to someone who will monitor the accused and, if the accused does not follow the bail conditions, stands to lose the money they put up for bail. Sureties are an added layer of protection for prosecutors and justices as act as community supervisors for the accused.
However, there is judicial recognition that Ontario courts have placed an overreliance on sureties in bail hearings. Canadian bail law, as mentioned above, requires a judge to release an accused without conditions or sureties unless the Crown can prove why harsher conditions would be necessary. The Criminal Code contains the so-called “ladder principle,” which outlines several steps of restrictiveness for bail conditions and that it is the Crown’s responsibility to prove. It also contains various forms of bail release.
515 (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.
This section states that the judge has to release the accused without any conditions unless the Crown can prove otherwise.
The section below outlines the other available forms if the Crown convinces the judge to ‘climb the ladder.’
(2) Where the justice does not make an order under subsection (1) [to release the accused on an undertaking without conditions], he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.
Summary of Ontario Bail Hearings
- After making an arrest, the police have the option to release the suspect at the scene, at the station, or hold them for a bail hearing.
- If an accused is held for a bail hearing, the police have to present the person to a judge or justice of the peace within a maximum of 24 hours.
- Once an accused is brought to court, the Crown will review their file with or without input from a criminal lawyer hired by the accused.
- After the review, the Crown will decide whether to consent or oppose the accused’s release.
- Should the Crown consent to a release, and the conditions they have set for their consent can be met, a brief hearing will be conducted and the accused is released.
- If the Crown is opposed to a release, the accused will work with their bail hearing lawyer to create a strategy to present at a contested bail hearing, also known as “show cause” hearing.
- At this hearing, both the Crown and the defence lawyer will present evidence to support their positions. After this, the judge will determine whether to release the accused and under which conditions.
- In most cases, it is the Crown’s responsibility to prove why anything more than a simple promise to attend court is required.
- Should the Crown convince the court to “climb the ladder”, there are several different options that become available: a simple promise with conditions; a recognizance with conditions and a promise of money; a recognizance with conditions, a promise of money and one or more sureties to act as supervisors; a recognizance with conditions and a cash deposit; and, in appropriate cases, a recognizance with conditions, with sureties to act as supervisors, and a cash deposit.
- In some cases, the responsibility, or “onus”, is reversed and it is not the Crown’s responsibility to prove to the court why the detention or bail is justified. Instead, it is the responsibility of the accused and their defence lawyer to convince the judge or justice why they should be released.
Understanding the Complexities of Bail Hearings in Toronto
There is far more to a bail hearing than a simple decision if an accused should be released back into the community until the trial date. As every case is unique, there is no one-size-fits-all approach, and many pitfalls can make the difference between freedom and detention. Many factors influence both proceedings and decisions. Understanding the intricacies and complexities of bail hearings in Toronto is imperative, which can be very difficult on your own.
Skilled Legal Knowledge to Ensure Proper Rights and Defence
It requires professional legal knowledge to prepare for the different scenarios that may arise in the bail hearing process. Depending on the severity of the crime you are accused of, it can become increasingly more difficult to be granted bail, so it is vital to build a careful and efficient strategy to argue the case before the judge or justice of the peace.
Take the Stress out of the Process with Expert Consultation
We understand that appearing before a judge for a bail hearing is very stressful. Your freedom is at stake, and one wrong answer can make the difference and send you to detention instead of back into the community. An experienced criminal defence lawyer has seen hundreds, if not thousands, of bail hearings and can help reduce your stress by fully understanding the legal process and being able to anticipate the questions the Crown attorney and judge or justice of the peace may ask you and any individual applying to be a surety. This will allow you to be prepared for your hearing and approach it with a clear strategy, increasing the chances for success.
Dedicated Advocacy for Your Rights During a Bail Hearing
Fedorowicz Law has the experience and expertise to help you with the crucial preparation for your bail hearing. Our criminal lawyers will be advocating for your rights. We have seen both sides of the process and will help you increase your chances of securing your release. You can trust that our Fedorowicz Law bail hearing Toronto lawyers are here to help you with all your questions and concerns about your bail hearing process.
Call 249-266-4222 today for a free, no-obligation consultation to find out how we can help you fight for your freedom!
FAQ’s
A recognizance is a form of bail where a party recognizes that they owe the state a duty. A court will grant this and requires you to promise not to breach the set bail conditions and acknowledge that failure to abide by them will result in criminal charges. There are two different types of recognizance. In the first, you are solely liable for your actions and will put up a monetary amount, which you would lose if you breach the court order. The second requires another person, also known as surety, to supervise your bail.
The police carry the sole discretion whether an accused person will continue to be held in custody or let go without any bail hearing. Generally, this is the case for more minor, usually summary-level convictions. If the police decide to release you, you must typically fill out and sign a Promise to Appear form, vowing that you will appear at your trial hearing.
The conditions of your release and the document are known as a police undertaking, which will vary depending on the nature of the allegations.
Generally, your criminal record history significantly influences the police department’s decision whether to release you or keep you in custody. A person with an extensive criminal record is more likely to remain in police custody until their bail hearing. Similarly, If he allegations are more serious, a release from the police station is unlikely.
By law, your bail hearing has to occur within 24 hours of your arrest or, if this is not possible, as soon as possible, as outlined in section 503 of the Criminal Code of Canada. It is vital to ensure that your rights are upheld and protected. Fedorowicz Law has the experience and expertise to represent you at your bail hearing to ensure you are well-informed and can protect your interests.
Negotiating a consent release with the Crown attorney is essential because it ensures an accused is released from custody at the earlier opportunity. However, the more serious the allegations or if the accused has outstanding charges, the less likely it is the Crown will consent. In these circumstances, the Crown will usually recommend to the judge that the accused should remain in custody; or, if released, on very strict terms. Consequently, to allow you to return to your life and family, an experienced bail hearing lawyer will be able to negotiate with the Crown for a consent release, with the least restrictive bail conditions.
A wide variety of conditions may be stipulated, from not consuming alcohol or having a curfew to prohibiting contact with specific individuals. Some of these can severely affect your family or work life and restrict you from living as usual.
A contested or “show cause” hearing occurs when the Crown does not consent to release the accused. The Crown will have to prove, or “show cause,” why they believe the accused should not be released back into the community until the trial date. In this case, a judge or justice of the peace will make the final decision on whether to grant bail.
It is also possible that the responsibility, or “onus,” is placed on the defendant to argue why they should be released on bail. Scenarios for this reverse onus include
- The accused already was on release on bail but is facing new criminal charges
- They are charged with a drug offence involving the sale or distribution of narcotics.
- They are charged with very high-level serious offences, such as criminal organization offences.
These scenarios increase the risk of releasing the accused on bail, and generally, the onus is shifted onto the defendant to make their case. This makes it critical to have an experienced lawyer by your side.
Youth cases differ as they generally are cases where the burden of proof falls on the Crown. So, the Crown has to prove that you should be kept in custody instead of being required to prove that you are trustworthy enough to be released on bail. This makes bail hearings a lot more lenient for minors.
Important note: Unlike adults with minimal resources to work with after a bail hearing, minors have the right to request a second hearing before a youth court judge should the original judge or justice of the peace deny the right to bail. This only applies to youth offenders and can only apply for a bail review. Adults do not have this right.
Lawyer: The lawyer advocates for your release and upholds your rights and liberties. They act to protect your interests and convince the Crown that you are trustworthy and reliable to be released on bail. If they do not agree to this, your lawyer will negotiate to find an agreement with the Crown to receive a consent release. In the courtroom, they will bring up evidence on your behalf to prove that you should be released with the least restrictive bail conditions reasonably possible in your particular case.
Crown: The Crown’s attorney advocates for the interests of the general public by ensuring their safety and security. Suppose there is a reason for concern that a release might jeopardize the safety of the people or that you may infringe on one of the grounds that will justify your detention. In that case, they will push against a release to guarantee the justice and safety of the people.
Judge/Justice of the Peace: Ultimately, the person that will take in evidence from both sides and decide on an appropriate ruling. They have the final say in the courtroom through their interpretation of the law.
Bail conditions can change in a variety of ways. One efficient method is for the accuser’s bail hearing lawyer to negotiate the conditions with the Crown – or ease such conditions over time. An experienced bail hearing lawyer can seek consent from the Crown and present the Court with a paper application that the Justice of the Peace will sign off.
In most bail hearings, the onus on why the accused should not be released will be on the Crown’s attorney, commonly called “Crown onus” hearings. Depending on the offence or whether the accused has breached bail conditions, the onus will be placed upon the accused to prove why they should be released. This is referred to as “reverse onus”.
The various forms of bail release are found under section 515 of the Criminal Code of Canada.
- Release without conditions – section 515(1)
- Undertaking with conditions – section 515 (2)(a)
- Recognizance – section 515 (2)(b) of the Code
- Recognizance with surety/sureties – section 515 (2)(c)
- Recognizance with deposit (without surety/sureties) – section 515 (2)(d)
- Recognizance with surety/sureties and deposit (for non-residents of Canada or those living more than 200km away) – section 515 (2)(e)
- Detention – section 515 (5)
All forms of release have one thing in common; the accused promises to appear in Court as directed and to follow any conditions. The main difference between an undertaking and a recognizance is the financial penalty imposed on the accused versus surety if one does not attend court or breaches any conditions.
Bail conditions can change in a variety of ways. One efficient method is for the accuser’s bail hearing lawyer to negotiate the conditions with the Crown – or ease such conditions over time. An experienced bail hearing lawyer can seek consent from the Crown and present the Court with a paper application that the Justice of the Peace will sign off.
There are a few essential qualifications to be legally allowed to act as a surety:
- you must be at least 18 years of age
- you must be a Canadian citizen (non-residents must deposit cash)
- you must not have a criminal record or any outstanding criminal charges
- you are currently not a surety for any other accused person
You might have to testify at a bail hearing, so the assistance of a criminal defence lawyer is essential to prepare you for the questions the Court or Crown attorney may ask you. One wrong answer during the hearing could result in the judge or justice of the peace denying bail, leading to the accused spending the time until the trial in custody.
A ‘special bail hearing’ is required if you have been charged with serious criminal offences, such as large-scale organized crime or gun-related charges. A special bail hearing requires a more significant amount of time due to the circumstances, as they usually require more facts or evidence called by the Crown attorney and witnesses that may have to testify. A special bail hearing must also be scheduled to ensure that the courtroom, all sureties, the criminal defence lawyer, the Crown attorney, and the judge or justice of the peace are available.
Breaching one or more conditions of your release order can have severe consequences, as such a failure indicates that you are unable or unwilling to follow the Court’s orders. You may be charged with a Failure to Comply, a criminal offence. This can lead to a revocation of your bail and detention or make getting bail more difficult. Should you be rereleased on bail, the conditions may be a lot stricter than before.
A surety is an individual who must supervise the defendant in strictly following their bail conditions. Ideally, they are well-known to the accused and willing to take responsibility.
To qualify as a surety, you must meet the following criteria:
- Be a Canadian citizen or landed immigrant;
- Be an adult (18+);
- Have the required financial asset(s) to pledge;
- Be able to monitor and supervise the accused;
- Be willing to report the accused if they breach any conditions of the release order;
- Not be involved in the criminal offence the accused was charged with;
- Not be the accused’s counsel; and
- Not have received any considerations in exchange for being a surety
While not a requirement, the following characteristics will be viewed as advantages during the evaluations:
- No criminal record;
- No outstanding charges;
- Not currently acting as a surety for someone else; and
- A person with meaningful links to the accused.
For most criminal offences, the police can release an accused without requiring a bail hearing or keeping them in custody. Generally, police will keep an individual in custody if there are concerns on one of the following grounds:
- they have not yet established the accused person’s identity
- there are concerns that the accused might destroy evidence related to the investigation
- they worry that the accused will repeat the offence they have been arrested for or commit other criminal offences
- there are reasonable grounds to believe that the suspect will not show up for their court date.
Based on any of these grounds, police will likely keep the accused person in custody for a bail hearing.
There are several factors that the Court has to take into consideration when determining if an accused should be released on bail.
- Will the accused attend their court dates?
- Is there a likelihood that the accused will continue or repeat the criminal offences they have been charged with or might they commit further offences?
- Is there concern that the accused might be a danger to the general public’s safety if released?
- How severe is the offence the individual has been accused of?
Generally, the onus is on the Crown prosecutor to prove that the accused should be held in custody and not be released. In some situations, however, the burden of proof is switched, and the defendant must prove reliable and trustworthy enough to be released while waiting for the trial date. This is called reverse onus and is most often triggered when the accused has breached previous bail conditions or is charged with a severe offence, such as gun-related or drug-trafficking charges. It may also be triggered if the accused does not have their primary residence in Canada.
The chances for success at a criminal bail hearing largely depend on the severity of the charges and the defendant’s criminal history. In general, prosecutors will argue that defendants charged with more serious offences should remain in custody until their trial, while defence attorneys will try to argue that their clients should be released on bail pending their trial.
The accused will likely need the assistance of friends or family to act as sureties. A surety is responsible for ensuring the defendant strictly follows their bail conditions. To do so, sureties have the liberty to take any necessary measures and may even implement new rules the defendant must follow. The Court may also ask that the surety provide a bail bond, a monetary pledge that ensures the surety will supervise the accused or risk losing the money pledged.
In most cases, a surety does not have to deposit the money with the Court but need only prove that they have access to the required amount. The number of sureties required and the pledge amount differs from case to case, such as the number and type of charges the accused has been charged with, the surety’s financial situation and their ability to supervise the accused or the length and extent of the accused’s criminal record, if applicable. In the end, it is the decision of the judge or justice of the peace how many sureties or at what amount the bail will be set, depending on the above mentioned factors.
During a bail hearing, the Court might ask the surety to testify about their relationship with and the background of the accused and their plan for supervising the accused. They play a vital role in a bail hearing as their answers are crucial in the judge’s or justice’s decision-making process. One wrong answer could distinguish between the accused being granted bail or detained.
This is why an experienced criminal lawyer is crucial in the preparation of a surety prior to a bail hearing. Through their experience, they will know what questions the Crown attorney or judge may ask and prepare the surety accordingly. They know which tough questions may be asked, and the surety must be prepared to answer them to increase the chances of bail being granted.
During the bail hearing, the prosecutor will likely lay out a wide range of information about the accused and the offence they have been charged with. This includes specific facts about the charges and potential prior criminal history. The criminal defence lawyer can request a ban on the publication of this information, as disclosing these details could impact the accused’s right to a fair trial, which would go against the assumption that anybody is innocent until proven guilty. It will be the judge’s decision for part or all of the information not to be made public.
Should the judge deny bail, the only way the accused may have a second chance is by bringing a special application to the Superior Court of Justice to have the detention order reviewed by a higher level of judge.
If one or more sureties cannot attend the bail hearing, it is possible to postpone the bail hearing to a later date when the sureties can attend. Technically, there is no limit to how often a bail hearing can be postponed; however, additional costs may be involved to have the lawyer appear on another date, as in most cases, a lawyer is only retained for the original bail appearance.
The chances for success at a criminal bail hearing largely depend on the severity of the charges and the defendant’s criminal history. In general, prosecutors will argue that defendants charged with more serious offences should remain in custody until their trial, while defence attorneys will try to argue that their clients should be released on bail pending their trial.
After your release, you must abide by all bail conditions set during the hearing. You will also meet with your criminal defence lawyer to prepare your case for trial.
Yes, a surety can decide to stop being a surety at any time without specifying a reason. To relieve yourself as a surety, you must bring the accused to a police station or to Court.
To change any conditions of your bail, you have to apply for an amendment with the consent of the Crown attorney. You have to have a justified reason to request a change to your release order, and a judge or justice of the peace will need to sign off on the approval of the variation. Until this happens, your original bail conditions will remain in effect. They may hold a hearing if the Court feels they require more information concerning the change application. If the Crown refuses to accept such a bail variation request, you can apply for a bail review by a higher judge at the Superior Court of Justice.
In most cases, you don’t have to give a cash deposit to the Court, but it is necessary to pledge the amount set by the Court and proof of access to the required amount is generally enough. In the case of the accused breaching a condition of their bail, however, the surety may be liable for the amount pledged.
If the accused lives more than 200 km from where they are in custody or are generally not residents of the province of Ontario, the Court may ask for a cash deposit.
The best way to prepare for a bail hearing is to contact an experienced criminal defence lawyer. They will be able to help you prepare for the questions the Crown and judge or justice of the peace will ask you, such as:
- Where will you be living while on bail?
- Who will you be living with?
- Who will be able to supervise you?
- Are there any conditions you would not be able to comply with?
- Background information concerning your school, job or other responsibilities
- If there are any substance issues present, which plan do you have of addressing them (such as treatment or counselling)
Like there are different types of releases, there are a variety of conditions that a judge can order as part of a release order, which will vary per case depending on a broad set of factors. The basic release types are a recognizance of your own (which includes pledging an amount of money), a recognizance with sureties and a recognizance with a deposit.
Types of conditions include:
- Not to leave the country, and to surrender any passport.
- To reside at a certain address, including abiding by court-set curfews.
- To be of good behaviour, not to commit any further criminal acts.
- Not to attend certain places, or to stay away from addresses. This can vary greatly depending on the individual case but can include places known for criminal activities, a matrimonial home in the case of a domestic assault, or any places with minors in attendance.
- Not to communicate with certain persons such as spouses or witnesses.
- To report to the police daily, weekly, or monthly and notify them of any changes to your address, phone number or employment.
- To abstain from the consumption of alcohol or drugs
- Be on house arrest with or without an ankle monitor
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