Criminal Defence Lawyer

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Bail Hearing Lawyer

Bail Hearing Lawyer

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

What is a Recognizance?

Bail is the means by which a defendant charged with a criminal offence can get released from custody before trial. A recognizance is a form of bail. There are several types of bail. The least intrusive is when the police give you a document requiring you to appear in court to answer to the charges. This document can take several forms: a Summons, a Promise to Appear or an Appearance Notice. While you are required to follow the document’s instructions, it does not contain any bail restrictions or make you or a surety liable to lose any money.

An Undertaking is a document where you formally promise to attend court on a certain date, and to follow its conditions, such as abstaining from contact with certain people, not having any weapons in your possession, or avoiding certain places. It is considered to be a step up from a Summons or Appearance Notice, and if you do not follow its conditions, you can be charged with breaching the Undertaking. No money is on the line, and no surety is required to guarantee the bail.

A Recognizance is the most formal type of bail. It can only be granted by a court, which means that you will stay in police custody until they can get you to court, up to 24 hours after arrest. A recognizance requires you to promise formally to the court that you will follow its conditions, and failure to do so will result in criminal charges of breaching a court order, and will make it more difficult to get out on bail next time. In addition, the promise to the court is backed up by a sum of money which can be forfeited to the government if the bail conditions are not followed. There are two types of recognizance: one where you alone make the promise to the court, which is usually backed up by a liability of $500, which you stand to lose if you breach the order; and one where you need another person to supervise you while on bail. That supervisor is called a surety, and the surety will stand to lose the amount of money pledged to the court on your behalf. That amount of money can vary depending on the seriousness of the offence and other perceived risk factors.

What is a Surety?

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.

What is s Show Cause Hearing? A Consent Release?

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.

What Bail Conditions Can I Expect?

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.

How Can I Change My Bail Conditions?

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.

What Can I Do If I Did Not Make Bail?

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).

How Long Will I Be On Bail?

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.

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.

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