Domestic violence is violence which takes place within a family or an intimate relationship. Offences can include assault, threatening death or bodily harm, murder, criminal harassment, sexual assault, mischief or breach of court orders.
One of the most important factors in how your case will turn out is whether you are in jail waiting for your trial, or free on bail.
A bail hearing is a mini-trial, except with less time to prepare and less access to information than in an actual trial.
But the stakes are high: if you are in custody awaiting trial, you will be under great pressure to surrender and plead guilty; it will be much more difficult for you to plan your defence or to raise funds to pay for your legal representation. The reality is that most people who fail to get bail end up pleading guilty, and serve more jail time than those who are free on bail.
Detention facilities such as the Don Jail, Maplehurst, or the super-jails such as Lindsay and the Central North Correctional Centre in Penetanguishene, are truly awful places.
You have one chance at winning your freedom at a bail hearing, and it is critical that you have a lawyer who can do it properly. If you rush into a bail hearing without proper preparation, or worse, without a good lawyer, you will likely end up spending months or even years in custody regretting your haste. Or else you will end up with inconvenient or unworkable bail conditions that can cut you off from your home, your family, or make it difficult to find work. The free duty counsel at the courthouse is no substitute for an experienced lawyer who has properly prepared your case for a bail hearing; duty counsel deal with dozens of cases a day, and don’t have the time to interview, prepare or conduct a bail hearing properly.
At The Defence Group, our criminal trial lawyers have successfully argued thousands of bail hearings, and we know how to win your freedom on the best possible terms.
The Law on Bail
The Charter of Rights guarantees everyone the right to reasonable bail, and the right to be presumed innocent. But this does not guarantee that you will be released, or that your bail conditions will be suitable for you.
There are three types of bail hearings:
- those for people charged with the most serious criminal offences in the Criminal Code, which are more complex and must be held in the Superior Court;
- those where the Crown must justify detention, called “Crown onus” cases;
- those where the defendant must justify release, called “reverse onus’ cases.
The most serious cases, where bail is held in Superior Court, are listed below:
469. Every court of criminal jurisdiction has jurisdiction to try an indictable offence other than
(a) an offence under any of the following sections:
- i. section 47 (treason),
- ii. section 49 (alarming Her Majesty),
- iii. section 51 (intimidating Parliament or a legislature),
- iv. section 53 (inciting to mutiny),
- v. section 61 (seditious offences),
- vi. section 74 (piracy),
- vii. section 75 (piratical acts), or
- viii. section 235 (murder);
(b) the offence of being an accessory after the fact to high treason or treason or murder;
(c) an offence under section 119 (bribery) by the holder of a judicial office;
Crimes against humanity
(c.1) an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(d) the offence of attempting to commit any offence mentioned in subparagraphs (a)(i) to (vii); or
(e) the offence of conspiring to commit any offence mentioned in paragraph (a).
R.S., 1985, c. C-46, s. 469; R.S., 1985, c. 27 (1st Supp.), s. 62; 2000, c. 24, s. 44.
Crown onus cases are those where the Crown has to prove that you must remain in custody until your trial. All cases are Crown onus cases unless they fall into the category of “reverse onus” cases.
Reverse onus cases where you have to prove that you should be released, fall into several categories:
- where you are already on bail for another offence;
- where you are charged with a weapons offence while under a weapons prohibition;
- if you are not a resident of Canada;
- where you are charged with certain organized crime or terrorism offences;
- where you are charged with certain drug offences, such as trafficking cocaine.
The section of the Criminal Code which sets out these circumstances is as follows:
[s.516] Order of detention
(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provis
(a) with an indictable offence, other than an offence listed in section 469,
- i. that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,
- ii. that is an offence under section 467.11, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization,
- iii. that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence,
- iv. an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act,
- v. an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that is committed in relation to on offence referred to in subparagraph (iv),
- vi . that is an offence under section 99, 100 or 103,
- vii. that is an offence under section 244 or 244.2, or an offence under section 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to have been committed with a firearm, or
- viii. that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);
(b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada,
(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816, or
(d) with having committed an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.
There are three issues a court will consider before releasing you on bail:
- Will you show up for court? (Are you a flight risk); this is known as the Primary Ground;
- Will you commit further offences while on bail? “This is known as the Secondary Ground;
- Is it necessary to keep you in jail to maintain confidence in the administration of justice? This is known as the Tertiary Ground.
The first two grounds speak for themselves, but, the tertiary ground is quite complicated. Originally designed to deal with rare cases of murder or terrorism where the public’s concerns were not properly addressed by the primary and secondary grounds, the tertiary ground has evolved as a dangerously misunderstood ground. Crown attorneys and courts are applying it improperly more often to deny defendants bail. It takes an experienced lawyer to defend you against the improper application of such rules, because you only get one chance to get bail.
Frequently Asked Questions
Preparing for Your Bail Hearing
At The Defence Group, we pride ourselves on our record of success, and we succeed because we are prepared. We win our cases through preparation, combined with our knowledge and experience, at every step from bail hearing to trial. Often, friends and family show up to a bail hearing in a rush after the defendant has been arrested, without knowing any of the details about what s/he was arrested for, or why. A lawyer or duty counsel shows up and launches into a full-fledged bail hearing on the fly, without adequate preparation.
At The Defence Group, we are on call 24 hours a day, 7 days a week, to handle your emergency. If you or your loved one is arrested, you need access to trustworthy legal advice right away. Under the law, a defendant who has been arrested must be brought to court within 24 hours, so there is no time to waste. We will meet with you, and with your friends or family, to explain the process, gather information, and make decisions on how to get you out of jail. We will also negotiate with the Crown and police for your release on consent. If it becomes necessary to go to court, we will prepare witnesses and make sure that we have the documents and other evidence we need to put together the best case on your behalf. In court, if negotiations do not succeed, we will fight for your release with all of our knowledge, experience and contacts, built up over years of litigating on both sides of the justice system. We will win your release, and win it on the best terms, so that you are not bound by inconvenient or unfair conditions.