Bail Hearing Lawyer in Toronto

A surety is a person who is approved by the court as your supervisor while on bail. The surety is someone who knows you well, usually a family member or close friend. A surety formally promises to the court to be familiar with your conditions, to discuss them with you, and to make sure that you are following them. A surety has to be prepared to take the difficult step of notifying the court or the police if you fail to live up to your promises. A surety also stands to lose the sum of money pledged if s/he does not supervise properly, a process known as estreatment. That sum of money pledged can be as low as $500 or as high as several hundreds of thousands of dollars for the most serious cases. Often, a surety has to pledge the equity in their home to guarantee bail, which illustrates how serious this commitment is.

If the police are not prepared to release you from the station on a Promise to Appear, Appearance Notice, or an Undertaking, then you will be taken to court for a formal bail hearing known as a show cause hearing. In court, the Crown will review the file and make a decision as to whether to try to keep you in jail or agree to release you. An agreement to release you is known as a consent release. A consent release will be the result of negotiations between the Crown and defence. While it is tempting at this stage to accept whatever the Crown is offering, a good lawyer will make sure that the conditions imposed on you are the least onerous ones possible, to give you the maximum flexibility and breathing room while you fight the case. It is not easy to change bail conditions later on, so it is important to get the best bail terms early on: conditions that do not unnecessarily limit your ability to work or cut you off from contact with your children or force you to live away from home, for example.

There are many different types of bail conditions, depending on the situation. Most bail conditions are designed to address the main concerns listed in the Criminal Code, and can include:

• a requirement that you live with your surety;
• a prohibition on contact with the victim or witnesses;
• a prohibition on being at certain locations;
• a weapons prohibition;
• a curfew;
• a prohibition on consuming alcohol or illegal drugs;
• a requirement that you seek or maintain employment or attend school.

It is not easy to change your bail conditions, which is why it is important to hire a lawyer who will get the bail terms right the first time. There are three ways to get a change in your conditions:

• Apply to the Crown for a bail variation; you only get one chance at this, and it must be done properly, after disclosure has been received, and with the appropriate submissions made to the Crown in writing. A quick request made on the fly by counsel at a pre-trial or on the telephone is not the right way to do it;
• Apply to the court for a special bail hearing at the conclusion of a preliminary inquiry [see The Court Process]; this is rare and only takes place in serious indictable matters where there is a material change in circumstances;
• Apply to the Superior Court for a bail review.

A bail review is a special procedure which is partly an appeal from your detention order at the original bail hearing, and partly a new bail hearing, known as a hearing de novo. A bail review is a complex and formal procedure, with very specific rules about the documents and information required. For example, unlike a regular bail hearing in the Ontario Court of Justice, to apply for a bail review in the Superior Court, you will need sworn affidavits from your sureties, and transcripts of the original bail hearing, certified by the court reporter, as well as a book of documents known as an Application Record. Bail reviews are time- consuming and expensive, which is why it is worth taking the time and expense to hire a proper lawyer to prepare and conduct your bail hearing, rather than rushing into an improvised show cause with some overworked Legal Aid duty counsel.

Unless you are under 18 [see Youth Court/Young Offenders], you only get once chance to seek bail, which is why it has to be handled by a lawyer with the skill and experience to do it properly. If you are unfortunate enough to be detained in custody following an unsuccessful bail hearing, you have three options:

• Apply to the Crown for a consent release where there is a material change in circumstances (rare);
• Apply to the court for a special bail hearing at the conclusion of a preliminary inquiry [see The Court Process];this is rare and only takes place in serious indictable matters where there is a material change in circumstances;
• Apply to the Superior Court for a “bail review” (time-consuming and expensive: see above).

If you are released on bail, you will be bound by the bail conditions until the case is finished; that means until either:

• the charges are withdrawn;
• you plead guilty and are sentenced;
• the trial verdict is in and you are found Not Guilty;
• the trial verdict is in and you are sentenced, (if you are found Guilty).

Because it can take a year or more for your case to be complete, your bail conditions will be hanging over your head for a long time, and if you violate them, you could spend the rest of the case in jail. It is important that you have an experienced lawyer to handle your bail hearing right from the outset, so that you get bail and so that your bail terms are not unfair, unworkable or too inconvenient.