What are Different Forms of Release for an Accused Person?
There are multiple ways in which an accused person may be released pending a criminal offence. First, the police officer can voluntarily release the accused person on a promise to appear or an undertaking with conditions. The release papers will also provide their first court date and a date for fingerprints. The accused person does not have to agree with the terms of the release proposed by the police officer at the police station; however, a failure to do so will result in a delay in the accused’s release and them being held for a bail hearing. As bail conditions can last until trial, it is important to consult with a defence counsel prior to agreeing with any bail conditions.
There are a number of factors the police consider when deciding whether to release an accused person from police custody or take them to a criminal court for a bail hearing. These include, but are not limited to, prior criminal record, the gravity of the charge, whether there is a previous release in place. If the police are of the opinion that the accused person should not be released, then the accused will be held for judicial interim release and will typically appear in court within 24 hours of the arrest. Often, in domestic violence cases, the accused person will be brought to a criminal court for judicial interim release.
What Are Bail Hearings?
Bail hearings are a type of criminal proceedings that takes place in criminal law cases. The bail hearing is held in provincial court to determine whether or not the person arrested should be released from custody pending the outcome of their case. The crown counsel can consent to the release of it can be a contested bail hearing. If the accused person is released, there can be a number of bail conditions, such as no contact, a curfew, or travel restrictions.
A bail hearing is often one of the most critical stages in a criminal proceeding and it is prudent that you consult a bail hearing lawyer at the earliest opportunity. A defence lawyer can help you assess the strength of the Crown counsel’s case and can provide guidance as to what bail conditions may be appropriate given the accused’s personal circumstances.
A bail hearing requires formulating a carefully crafted plan of release, which is least onerous in the given circumstances. A poorly run bail hearing can have disastrous consequences such as the accused being denied bail. The bail system can be complex, so it is important to consult a defence lawyer who understands the bail context and can guide you through it.
If you have been arrested or are facing criminal charges, contact our office today for a consultation with a bail hearing lawyer. The firm will work tirelessly to get accused persons released from custody as soon as possible.
The Law On Bail & Contested Bail Hearing
Often, the burden is on the crown counsel to show cause as to why an accused person should not be released on bail. In certain circumstances, the onus is switched (reverse onus) and the accused must show why they should not be detained pending trial. At the bail stage, the Crown prosecutor will advise the court as to the ground(s) he or she is seeking the detention of the accused person on. The three grounds are enumerated in the Criminal Code including Primary Ground, Secondary Ground, & Tertiary Ground:
The Crown counsel can seek detention on one of or a combination of the above grounds.
The primary ground seeks to detain an accused person on the grounds that they are a flight risk. This can be due to their lack of ties to the jurisdiction, financial resources, or criminal record involving breaches of failure to attend court.
The secondary ground seeks to detain an accused person in custody on the basis that there is a substantial likelihood they will commit another criminal offence if bail were granted. The Supreme Court of Canada has outlined three things that must be established at bail hearings:
The tertiary ground refers involves assessing:
- The apparent strength of the prosecution’s case;
- The gravity of the offence;
- The circumstances of the commission of the offence, including whether a firearm was used; and
- The fact that the accused is liable to, on conviction, a lengthy term of imprisonment.
The bail hearing lawyer will often make representations to the court as to why detention is not warranted and will call evidence from surety or experts in support of the release.
How will Bail Lawyers help?
When a criminal case is registered, the police take steps to apprehend and arrest the accused in order to ensure that no further illegality takes place. Upon arrest, the accused person’s constitutional rights remain unaffected. 11(e) of the Charter provides that any person charged with an offence has the right not to be denied reasonable bail without just cause and that pre-trial detention is extraordinary in our system of criminal justice.
The first move of a Criminal Defense Lawyer in criminal cases is to have the client released as soon as possible so that they can continue with their day-to-day affairs without being prejudiced by the lengthy criminal justice system.
Bail hearings and the criminal process are time-sensitive and can be very confusing to navigate on your own. In order to get the best result possible, it is crucial that bail hearing lawyers are hired from the start. A defence counsel can help make the bail process go much smoother and faster. Having a lawyer by your side can make all the difference when it comes to securing your release from custody. If you are unable to afford a lawyer, all bail courts will have duty counsel who can assist free of charge. Following your release, you can also contact Legal Aid Ontario to make an application for a certificate.
A criminal lawyer will review the allegations and prior criminal records to formulate a bail plan of release. An accused person’s plan of release can assist in negotiating a potential consent release with the Crown attorney. Counsel will also interview and prepare the sureties to provide evidence at the hearing. If you have been arrested or know someone who has, it is important to seek legal assistance as soon as possible.
Acting As A Surety At A Bail Hearing
A proposed surety is someone who takes responsibility for supervising the accused person while they are on bail. A proposed surety will pledge an amount of money to the court and can risk losing some or all of the money if the accused fails to comply with the conditions of their release. Usually, this money is not paid upfront. The responsibilities of a proposed surety include making sure that the accused person attends court as required, ensuring that the accused person abides by all the conditions of their bail, and contacting the police of any breaches.
At a bail hearing, proposed sureties will testify as to their qualifications, background and suitability. It is critical for the lawyer to prepare proposed sureties of the process as sureties are subjected to cross-examination by the Crown attorney. After hearing from the sureties, the presiding justice will make a determination as to whether to release or detain the accused and on what conditions. A lawyer will advocate for your release on the least onerous conditions. The Supreme Court in R v Antic [2017 SCC 27] made it clear that each segment of release must be considered before moving to a more restrictive form of release.
If bail is denied at the initial hearing, a bail review application can be brought to the Superior Court to have the detention order reviewed. An application can be made if the circumstances of the case have changed materially or the bail hearing justice made an error in law.
The firm has a record of getting accused people out of prolonged and unjustified police custody. The firm has extensive experience in bail courts for various charges including, manslaughter, firearm offences, domestic assaults, drug offences, and many others. If you or someone you know has been arrested or is surrendering to the police, give a defence lawyer a call or contact us for a consultation.