Bail Hearing Lawyer in Toronto

Secure Your Freedom with Experienced Bail Hearing Lawyers

What is a Bail Hearing?

A bail hearing is a court proceeding where a judge or justice of the peace decides whether an accused person should be released from custody while awaiting trial. The decision is based on ensuring public safety and maintaining confidence in the justice system. Relevant sections of the Criminal Code that outline this process include Sections  497, 498, and 503.

There are two primary methods by which police can release an accused:

• Appearance Notice (s. 496) An appearance notice is a document that informs the accused of the charge(s) against them and the date and time they must appear in court.
• Promise to Appear with an Undertaking (s. 499): An undertaking is a promise made by the accused to appear in court as required and to abide by any conditions set by the police or justice of the peace. Conditions might include reporting to a police station or avoiding contact with certain individuals.

Both appearance notices and undertakings allow the accused to be released from custody while awaiting their court appearance. This aligns with the Canadian legal principle that an accused person is presumed innocent until proven guilty and should not be detained unless necessary.

However, in certain limited circumstances, police may choose not to release the accused. In these cases,  the Criminal Code mandates that the accused be brought before a judge or justice of the peace for a bail hearing within 24 hours of arrest, or "as soon as practicable" thereafter if a presiding officer is not available.

Why is a Bail Hearing Important?

If you are accused of a crime in Canada, your rights are protected by the Canadian Charter of Rights and Freedoms (s. 11(e)). This means you have the right to reasonable bail unless there are valid reasons to keep you in custody. You are entitled to be released until your trial unless a court determines you pose a risk to public safety, might not appear for your court dates, or might commit further offences.

This right to bail is important as it allows you to continue your life, work with your lawyer, and prepare your defence while awaiting trial. It also ensures you are not held in jail unnecessarily while still considered innocent.

Bail hearings determine whether you should be released and any conditions placed on your release. These conditions can include restrictions on your movement, interactions with certain individuals, or access to weapons. The purpose of these hearings is to balance your rights with the need to protect the public and uphold the principles of justice.

What Happens at a Bail Hearing?

As mentioned above, every person has a constitutional right to be released on bail pending trial unless there is just cause to hold them in custody. However, this right is not absolute, and there are situations where detention may be justified. The bail hearing serves as a forum to address these issues, allowing the court to balance competing interests and make an informed decision.

A bail hearing lawyer plays a crucial role in disputing or downplaying the Crown’s allegations and advocating for the release of the accused. The process typically begins with the Crown outlining the charges against the accused and presenting evidence or arguments to support their detention, including evidence of the accused's criminal history, potential flight risk, and likelihood of reoffending.

The defence lawyer challenges the Crown's arguments, presents evidence in favour of the accused's release, and proposes a release plan with conditions if necessary.. This plan may include testimony from the accused or their potential sureties to assist the court in making a decision. The goal of the defence is to convince the court that the accused can be safely released with conditions that ensure their appearance in court and protect public safety.

The judge then considers all the evidence, arguments, and relevant factors under the Criminal Code, and decides to either:

1. Release the accused on bail with certain binding conditions.
2. Detain the accused in custody until their case is completed.

It's crucial for anyone facing a bail hearing to have the assistance of a qualified criminal defence lawyer. They can help navigate the legal process, protect your rights, and advocate for the best possible outcome.

Factors That a Judge Considers When Granting Bail

In Ontario, the primary purpose of a bail hearing is to ensure that the accused remains accountable and poses no risk to public safety while awaiting trial. Judges consider several key factors when making a bail decision.

Flight Risk Assessment: The judge assesses the likelihood that the accused will fail to appear in court if released on bail. This involves examining the accused’s previous record, ties to the community, employment status, family connections, immigration status, and any potential motive to flee. A strong connection to the community, steady employment, and close family ties may suggest a lower risk of flight. In comparison, a lack of these factors or previous instances of failing to appear in court might indicate a higher risk.

Public Safety Concerns: The judge must evaluate the potential risk to public safety if the accused is released is a critical consideration for the judge. This includes the nature of the offence, whether violence was involved, the accused’s criminal history, and potential threats to victims, witnesses, or the community. Offences involving violence or a pattern of dangerous behaviour may weigh heavily against the release of the accused, while non-violent offences might pose less of a public safety concern.

Likelihood of Reoffending: The judge also considers the probability that the accused will reoffend if released on bail. This involves examining the accused’s criminal history, any outstanding charges or pending cases, and evidence of a pattern of criminal behaviour. An individual with a history of repeated offences or numerous pending charges may be deemed more likely to re-offend, which can influence the judge's decision to impose stricter bail conditions or deny bail altogether.

Assurance of Court Appearance: Another important factor is the likelihood of the accused attending future court dates is another important factor. The judge reviews the accused’s history of attending court, compliance with previous court orders, and any outstanding warrants or charges for failure to appear. A track record of honouring court commitments and following legal orders can work in favour of the accused, while a history of non-compliance can lead to more stringent bail conditions or detention.

Maintaining Trust in the Justice System: Maintaining public confidence in the justice system is a crucial consideration. The judge must consider whether releasing the accused would undermine public trust in the fairness and impartiality of the system. The potential impact on the public’s perception of the justice system and the need to uphold its integrity are significant factors. If the release of the accused is likely to erode confidence in the administration of justice, the judge may be more inclined to deny bail.

Vulnerable Groups Consideration: Judges are required to consider whether the accused belongs to an overrepresented or vulnerable group in the criminal justice system, such as Indigenous persons or other marginalised communities. This aims to address systemic discrimination and ensure fair treatment.

Based on these considerations, the judge will decide whether to deny bail or grant bail with or without conditions. Conditions of release might include surrendering travel documents, residing at a specific address, reporting to the police or a bail supervisor, and avoiding contact with certain individuals. 

Typically, the burden is on the prosecutor to show why the accused should not be released on bail. However, in certain situations, such as when the accused is already on bail for other charges or is charged with specific offences like drug trafficking or gun possession, the burden shifts to the accused to demonstrate why they should not be detained.

Bail Conditions and Surety Requirements

During a bail hearing, the court may impose specific conditions on the accused if they are released from custody. These conditions ensure that the accused attends all court appearances and does not pose a risk to public safety. Common bail conditions include surrendering any passport, not leaving the country, residing at a specific address, maintaining good behaviour, refraining from further criminal acts, avoiding certain places or addresses, restricting communication with specific individuals, reporting to the police regularly, and abstaining from consuming alcohol or drugs.

In addition to bail conditions, the court may require a surety. The surety must provide a financial guarantee, known as a bail bond, and be prepared to forfeit this amount if the accused fails to meet their obligations. Acceptable assets for the bail bond include Canadian savings and deposit accounts with a chartered bank, GICs and other investments, and real property ownership, such as homes, apartments, condominiums, or cottages. Assets like a line of credit, credit card, or non-qualifying assets such as a car cannot be used as proof of assets for the bail bond.

What is a Surety?

A surety is an individual who agrees to take responsibility for ensuring that the accused complies with their bail conditions. The surety also makes sure that the accused attends all court appearances and adheres to the bail conditions set by the court. This may include enforcing curfews, ensuring the accused avoids certain individuals or locations, and maintaining regular communication with the accused to monitor compliance. The surety is also legally obligated to report any breaches of bail conditions to the police. The surety provides a financial guarantee through a bail bond, which acts as a form of security for the court.

To qualify as a surety, an individual must be a Canadian citizen or a landed immigrant, have no criminal record, and must not act as a surety for more than one person simultaneously. If you’re considering becoming a surety, it’s important to assess the responsibilities involved and whether you would be able to fulfil them effectively. You should, for example, consider the impact on your personal and financial well-being before making a commitment. This is because should the accused breach their bail conditions, you may be required to pay the pledged amount.

By understanding the conditions of bail and the role of a surety, individuals can better navigate the bail hearing process and ensure compliance with court requirements. This knowledge is crucial for securing release from custody and successfully managing the obligations that come with bail.