If you or someone you know has been charged by the Toronto Police Service for a criminal offence, you (or someone you may know) may be held in custody pending a bail hearing. In this article, the bail process is described, along with all the key points you need to know about in order to prepare to complete this hearing successfully.
Introduction to Bail Hearings in Toronto
When someone is arrested in Toronto and held in custody, one of the first and most critical legal steps is the bail hearing. A bail hearing determines whether the accused can be released from custody pending trial or must remain in custody. For anyone facing this situation, retaining a Toronto bail hearing lawyer is a critical step in ensuring your rights at the bail hearing are protected..
What Is a Bail Hearing?
A bail hearing is a court proceeding where a judge or justice of the peace decides whether an individual accused of a crime should be released from custody while awaiting trial. The primary purpose is to ensure the accused will return for future court dates and that the accused will not re-offend while out on bail.
In Toronto, and across Ontario, bail hearings are governed by the Criminal Code of Canada. The Crown prosecutor may oppose bail if they believe the accused poses a flight risk, is a danger to the public, or if releasing them would undermine public confidence in the justice system.
During the bail hearing, the prosecutor must show cause why the accused should be kept in custody or why specific conditions should be imposed if they are to be released. This is because there is a presumption in favour of release, except in certain circumstances where the onus is on the accused to justify their release, such as in cases involving serious offences or repeat offenders. The judge or justice of the peace will consider several factors, including the nature of the offence, the accused’s criminal record, and the likelihood of the accused appearing in court BAIL ISSUES.
The judge may impose various conditions on the accused’s release, such as requiring them to report to a bail supervisor, abstain from contacting certain individuals, or remain within a specified area. If the judge is not satisfied that the accused’s release is justified, they may order the accused to remain in custody Criminal Code, SECTION 525. Time for application to judge, Criminal Code, SECTION 459. Time for application to judge.
In some cases, a bail review can be requested if there are significant changes in circumstances or if there is a delay in the trial. This review is not a new hearing but rather an assessment of whether the continued detention is still justified R. v. McCormack, [2014] O.J. No. 6046, R. v. Jerace, [2012] B.C.J. No. 3018.
Overall, the bail hearing process is designed to balance the rights of the accused with the need to protect the public and ensure the proper administration of justice.
A Toronto Bail Hearing Lawyer will ensure that each of the accused’s rights is protected at a bail hearing.
When can a Judge Detain an Accused at a Bail Hearing in Toronto
As mentioned above, there are three main grounds that the Court has to review when assessing whether someone is fit to be released. Those grounds are summarized in more detail here.
The grounds for detention at a bail hearing under the Criminal Code of Canada are outlined in section 515(10). There are three primary grounds upon which detention can be justified: the primary ground, the secondary ground, and the tertiary ground.
The primary ground for detention is to ensure the accused’s attendance in court. This means that if there is a concern that the accused may not appear for their court dates, detention may be justified to secure their presence Criminal Code, SECTION 515. Release order without conditions, R. v. Baugh, [2024] O.J. No. 5627.
The secondary ground for detention is the protection and safety of the public. This includes any victim or witness to the offence, or any person under the age of 18 years. Detention on this ground is justified if there is a substantial likelihood that the accused will commit a criminal offence or interfere with the administration of justice if released Criminal Code, SECTION 515. Release order without conditions, R. v. Baugh, [2024] O.J. No. 5627.
The tertiary ground for detention is to maintain confidence in the administration of justice. This ground considers the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and the potential length of imprisonment the accused may face if convicted Criminal Code, SECTION 515. Release order without conditions, R. v. Baugh, [2024] O.J. No. 5627.
These three grounds ensure that the decision to detain an accused person is balanced against the need to protect public safety, ensure court attendance, and maintain public confidence in the justice system Criminal Code, SECTION 515. Release order without conditions, R. v. Baugh, [2024] O.J. No. 5627.
When you retain a Toronto Bail Hearing Lawyer, the lawyer will advise you on which ground(s) the Crown or Court may consider your detention on.
Consent Releases by Crown Attorney
Sometimes, a contested bail hearing may not be required if the Crown Attorney agrees to an accused’s release.
A consent release on bail is a process where the Crown and defence or duty counsel agree on a plan of release for the accused, which is then presented to a Justice of the Peace or a judge for approval. This type of release is also known as a joint submission on release.
In a consent release hearing, the agreed-upon conditions for the accused’s release are presented to the Justice, who may accept the joint submission and order the release of the accused on bail. The Justice will address the accused to ensure they understand and are willing to abide by the conditions of release. If the Justice is not willing to accept the joint submission, they must indicate why and give both sides the opportunity to address the concerns. The Justice may only reject a joint submission if it would bring the administration of justice into disrepute or be against public policy.
Consent releases are considered efficient methods of achieving the release of an accused, as they avoid the need for a full bail hearing. However, judicial officials have the discretion to reject joint proposals if they do not meet the statutory criteria for detention and the legal framework for release. This discretion ensures that the conditions of release are reasonable and constitutional R. v. Antic, [2017] 1 S.C.R. 509, R. v. Deng, [2017] O.J. No. 2932.
Overall, a consent release on bail streamlines the process of releasing an accused by relying on the agreement between the Crown and defence, subject to judicial approval to ensure fairness and adherence to legal standards. If a Toronto Bail Hearing Lawyer can negotiate a consent release, almost all Judges or Justices of the Peace will follow the proposed release plan, leaving you with little to no risk of a detention order.
What is a Surety
A surety in the context of a bail hearing is a person who promises to a judge or a justice of the peace to supervise an accused person while they are out on bail. The surety pledges or promises an amount of money to the court, which they risk losing if the accused breaches any of the bail conditions or fails to attend court when required.
The role of a surety is crucial in ensuring that the accused complies with the conditions of their release. The surety must be someone with close ties to the accused, as this relationship helps create a strong incentive for the accused to adhere to the bail conditions. The surety is responsible for monitoring the accused’s behaviour and ensuring they do not engage in any activities that would violate the terms of their bail R v. Nasr, [2018] O.J. No. 7342, R. v. Fontaine, [2020] O.J. No. 5445.
In some cases, the suitability of a surety is determined during the bail hearing, where the proposed surety may be required to testify under oath. This testimony helps the court assess whether the surety is capable of fulfilling their responsibilities and whether they understand the implications of their role R. v. Kanwal, [2006] O.J. No. 5923. The court may also consider the surety’s financial ability to cover the pledged amount and their willingness to report any breaches by the accused R. v. Johnson, [2021] O.J. No. 4133.
Overall, the surety plays a vital role in the bail process by providing a guarantee to the court that the accused will comply with the conditions of their release, thereby allowing the accused to remain out of custody while awaiting trial.
A Toronto Bail Hearing Lawyer will interview potential sureties to determine who would be the best fit, and what the proposed release plan would be with them.
Potential Bail Conditions
Bail conditions in Canada can be categorized into several types, each designed to address specific concerns related to the accused’s release. These conditions are intended to ensure the accused’s appearance in court, protect public safety, and maintain confidence in the administration of justice.
One common category of bail conditions includes “no contact” orders, which prohibit the accused from communicating with certain individuals, such as the complainant or co-accused. This is often seen in cases involving domestic assault, fraud, and sexual assault. Another typical condition is the “do not attend” order, which restricts the accused from visiting specific locations, such as the scene of the alleged offence. This condition is prevalent in domestic assault and drug-related cases.
Curfew conditions are also frequently imposed, requiring the accused to remain at a specified location during certain hours. These conditions can vary in their strictness, with exceptions sometimes made for employment purposes. Additionally, reporting conditions may be mandated, requiring the accused to regularly check in with authorities.
Monetary conditions, such as cash deposits or recognizances, are another category. These conditions are designed to provide a financial incentive for the accused to comply with their bail terms. The amount set must balance the need to ensure compliance without being excessively burdensome R. v. Joinvil, [2022] Q.J. No. 19212.
Other conditions may include prohibitions on possessing firearms, abstaining from drug or alcohol use, and restrictions on travel. These conditions are tailored to address specific risks posed by the accused, such as flight risk or potential harm to the public.
Overall, bail conditions are imposed with the aim of being the least restrictive necessary to address the identified risks, ensuring that the accused’s liberty is limited only to the extent required to meet the objectives of the bail system.
One of the objectives of a Toronto Bail Hearing Lawyer is to not only attempt to secure their client’s release from custody, but to also do so without a significant number of restrictions.
Do You Need to Pay Money to Get Out on Bail
The monetary aspect of bail in Canada involves the imposition of financial conditions that an accused person must meet to secure their release from custody. This can include cash deposits, recognizances, or surety bonds, which serve as a financial guarantee that the accused will comply with the terms of their release and appear in court as required.
The amount of bail is determined by several factors, including the seriousness of the offence, the accused’s financial resources, and the need to ensure that the bail amount is within the means of the accused. The right to reasonable bail, as enshrined in section 11(e) of the Canadian Charter of Rights and Freedoms, mandates that the quantum of bail be set in a manner that is not excessive and is within the financial capacity of the accused. The court must inquire into the accused’s ability to pay to ensure that the bail amount is reasonable and not unattainable: R. v. Joinvil, [2022] Q.J. No. 19212.
In some cases, a pledge of money or a recognizance with sureties can be used instead of a cash deposit. This means that the accused or their surety may lose the pledged amount if the accused breaches the terms of bail, providing a coercive incentive for compliance R. v. Kelly-White, [2019] M.J. No. 48, R. v. Lane, [2019] B.C.J. No. 1395. The court has the discretion to set the bail amount and conditions, and there are no fixed schedules for bail amounts in Canada, unlike in some U.S. states.
Overall, the monetary aspect of bail is designed to balance the need to ensure the accused’s appearance in court and compliance with bail conditions, while also considering the accused’s financial situation to avoid unreasonable or unattainable bail amounts §16.20, R. v. Joinvil, [2022] Q.J. No. 19212.
Consult with a Toronto Bail Hearing Lawyer to determine what financial impact, if any, your release will have on you and your sureties.
How to Win a Bail Hearing in Toronto
To increase their chances of being granted bail at a bail hearing, an accused person should focus on several key factors. Firstly, demonstrating a strong support system can be crucial. This includes having family or friends who are willing to commit to ensuring the accused complies with bail conditions, such as providing a significant monetary pledge or offering to supervise the accused. Additionally, presenting a comprehensive release plan that addresses potential concerns, such as the use of electronic monitoring or other conditions that ensure compliance, can be beneficial.
Another important factor is the accused’s personal circumstances, such as health conditions that may be exacerbated by detention. For instance, during the COVID-19 pandemic, courts have considered underlying health conditions as a significant factor in granting bail to reduce the risk of severe illness R. v. Williams, [2020] O.J. No. 2218. Highlighting any such conditions and their potential impact can strengthen the case for bail.
It is also essential for the accused to have legal representation during the bail hearing. Effective advocacy by counsel can help navigate the complexities of the bail process and present a compelling argument for release. Self-representation can lead to misunderstandings and mistakes that may negatively impact the bail decision.
Finally, the accused should be prepared to address any concerns the court may have regarding the risk of absconding or committing further offences while on bail. Demonstrating a stable lifestyle, such as steady employment or strong community ties, can help mitigate these concerns.
Toronto Bail Hearing Lawyers will develop a plan with you and, if necessary, your sureties to increase the odds of winning your bail hearing.
Why You Need a Toronto Bail Hearing Lawyer
Here are five reasons why hiring a Toronto bail hearing lawyer is critical:
1. Expertise in Criminal Law
Bail hearings can be legally complex and procedurally strict. An experienced lawyer understands the nuances of the Criminal Code, local court protocols, and how to craft persuasive arguments to secure release.
2. Familiarity with Local Courts
A lawyer based in Toronto is familiar with the specific practices of Toronto courts, judges, and Crown prosecutors. This local knowledge can be a strategic advantage when arguing for bail.
3. Quick Response Time
Time is of the essence when someone is arrested. A local Toronto bail hearing lawyer can act quickly—often appearing in court within 24 hours to advocate for release.
4. Tailored Release Plans
A good bail lawyer will prepare a comprehensive release plan, including proposed sureties (people who supervise the accused), address conditions, and strategies to ease the Crown’s concerns.
5. Higher Chance of Success
The stakes are high. Detention can have severe consequences for employment, family, and mental health. A skilled lawyer significantly increases the chances of release and favorable conditions.
Qualities to Look for in a Toronto Bail Hearing Lawyer
If you or a loved one is facing a bail hearing in Toronto, finding the right Toronto Bail Hearing Lawyer can make all the difference. Here are some key qualities to look for:
- Experience with Bail Hearings
Not all criminal lawyers focus on bail hearings. You need someone with a proven track record in handling bail cases in Ontario courts.
- Availability and Responsiveness
Your lawyer should be available on short notice and ready to act quickly. Arrests and bail hearings don’t always happen during regular business hours.
- Communication Skills
You want a lawyer who can clearly explain the process to you and your family, and who can persuasively argue your case before a judge.
- Client-Focused Approach
A good Toronto bail hearing lawyer will prioritize your freedom and dignity, treating you with respect and involving you in decisions.
- Affordable and Transparent Fees
While cost shouldn’t be the only factor, it’s important to hire a lawyer who is upfront about legal fees and provides value for their services.
Andrew Captan – Toronto Bail Hearing Lawyer
Andrew Captan is a criminal lawyer who has been conducting bail hearings for over 13 years. For a free consultation regarding your case and prospects of release, call (647) 878 – 6355 or e-mail him at andrew@captanlaw.com for more info.