What is a bail hearing?Andrew Captan
Depending on several factors (such as the nature of the alleged offence, the likelihood that the accused will attend court and whether or not s/he will pose a danger to the public or complainant), the police may decide to not release the accused. In this situation, the police must, in most cases, bring the accused before a court within 24 hours for a bail hearing. A bail hearing is a proceeding in which the court will make a determination as to whether or not the accused should be released, pending the completion of his/her criminal case. In the majority of cases, the burden is on the Crown to demonstrate, on a balance of probabilities, why the accused’s detention is justified. In certain cases, the burden shifts to the accused person to show cause why his/her detention is not justifiable (this is called a “reverse-onus” bail hearing, and may arise with certain prescribed offences, such as murder, as well as in certain prescribed situations). In either scenario, the following are the factors that must be taken into account when assessing whether or not detention is justifiable:
1) Is detention necessary in order to ensure the accused attends court (the “primary ground”);
2) Is detention necessary for the protection and safety of the public, including any substantial likelihood that the accused, if released, will commit further criminal offences (the “secondary ground”); and
3) Is detention necessary to preserve confidence in the administration of justice (the “tertiary ground”)
Charter of Rights and Freedoms and Bail
Section 11(e) of the Canadian Charter of Rights and Freedoms protects accuseds rights at the bail stage, by affording them the right not to be denied reasonable bail without just cause. The Supreme Court of Canada has interpreted the words “just cause” to mean that bail can be denied only in a narrow set of circumstances, and only where the denial is necessary to promote the proper functioning of the bail system.
There are various forms of release that a court may order at a bail hearing, including release by way of an undertaking, recognizance without sureties and a recognizance with one or more sureties. In many cases, courts require that a surety sign for the release of the accused. A surety is an individual (usually a family member or close friend) who promises to the court, on oath, that s/he will forfeit a specified sum of money to the Crown if the accused breaches one or more of conditions listed on the recognizance of bail.
The characteristics of a very strong surety usually consist of the following:
- Lack of criminal record;
- Good character;
- Financial security;
- Willing and able to supervise the accused while s/he is out on bail;
- Willing to assist with ensuring the accused attends court when required;
- Willing to report to the police any perceived violations by the accused of one or more of his/her bail conditions
A surety acts as a jailer in the community, and is there to ensure that the accused abides by his/her conditions of release. If an accused breaches one or more of his/her bail conditions, then a forfeiture hearing may be held with respect to the amount of money that the supervising surety pledged to the court. Forfeiture is not automatic upon the breach of a bail condition, and a court would look into factors such the degree (if any) to which the surety was at fault in relation to the violation of the bail condition(s).
Significance of Securing an Accused’s Release at a Bail Hearing
A bail hearing is one of the most important steps in criminal proceedings, given the negative impact of pre-trial detention. Pre-trial detention can lead to one or more of the following in relation to an accused, as well as of his/her family:
- Personal or individual costs, including psychological stress on the accused, emotional and financial stress of family members and the loss of employment by the accused;
- Negative impact on the accused’s ability to defend the charges s/he is facing, including there being a greater difficulty in finding a lawyer, communicating with lawyer after one is found, finding evidence to support his/her case and taking steps that would make a good impression on the court (e.g. finding a job);
- Increased likelihood of conviction and greater severity of sentence; and
- Pressure to plead guilty, even if the accused is actually innocent For these reasons, it is crucial that an accused has representation at his/her bail hearing, and that significant preparation goes into the hearing.