Bail Hearing Process and Procedure

After an arrest the bail hearing provides an accused an opportunity to be released from custody. Under these circumstances it is of vital importance to make sure you know your rights. When your reputation and freedom are on the line you want a lawyer you can trust.

At Chand Snider LLP our law firm is committed to fighting for your rights at all stages of a criminal proceeding. We understand that when you need us the most we have to be at our best. We are available 24 hours a day 7 days a week to ensure you have a team in your corner.

BAIL OVERVIEW

Bail is the temporary release of an accused awaiting trial. Obtaining bail is an important part of the criminal process. If you or a loved one has been charged with a criminal offence, your rights not to be denied reasonable bail without just cause is protected under s.11 (e) of the Canadian Charter of Rights and Freedoms.

Once an individual is arrested and taken into custody, a bail hearing is arranged to determine whether the accused will be released from custody prior to the trial. The two types of bail hearings are either on consent or contested.

A bail hearing on consent is when there is an agreement between the Crown and the defence to the terms of release and this is subsequently approved by the judge. If the Crown and defence disagree then a contested bail hearing will be required. At this stage, the Crown will present its position and the reasons why they believe detention is required. The defence will then have an opportunity to question and call witnesses to challenge the Crown’s position. Once both sides have concluded the judge will order either the release of the accused, or an order that the accused will continue to be detained.

There are offences where police will arrest and charge an individual without taking them into custody. They may be issued a notice to appear and this will require them to appear in court at a later date specified on the notice. If you are not being held in custody, then you do not require a bail hearing. If you have been charged with an offence and taken into custody, then you will require a bail hearing regardless of the charge to ensure you are released prior to trial. The general rule is that an accused must be brought before the court for a bail hearing within 24 hours of the arrest.

ONUS OF PROOF

The principle of not being denied reasonable bail without just cause is guaranteed under the Charter of Rights and Freedoms. The general rule provides that the Crown bears the onus of proof, along with the burden of proving that the accused should be held in custody prior to trial.

There are exceptions to the general rule, where the onus will be reversed, which results in the accused having to prove why they should be released from custody prior to trial.

REVERSE ONUS

Section 469 offences under the Criminal Code, which include treason, murder, piracy, accessory to murder and attempts to commit these listed offences will require a reverse onus standard for the bail hearing. The following offences and situations will require a reverse onus standard for bail hearings:

  1. Any offence listed in Section 515(6) of the Criminal Code, including:
    • Offences committed after being released in respect of another indictable offence;
    • Offences committed for the benefit of a criminal organization;
    • Terrorism offences;
    • Certain firearm offences;
    • Trafficking of narcotics.
  2. Any offence committed while on interim release.
  3. Any indictable offence committed by an accused not ordinarily a resident of Canada.

WHEN CAN THE COURTS DENY BAIL?

Under Section 515 (10) of the Criminal Code provides a list of some of the permitted grounds when an individual can be denied bail:

  1. Where detention is necessary to ensure accused person will attend court;
  2. Where detention is necessary for the protection of public safety;
  3. Where detention is necessary to maintain confidence in the administration of justice, including:
    • the apparent strength of the Crown’s case; —
    • the gravity of the offence;
    • circumstances surrounding commission of the offence;
    • whether a firearm was used; and
    • where an accused may liable for a lengthy term of imprisonment.

BAIL CONDITIONS

When bail is granted to an accused person there are certain conditions to the recognizance of bail that they must follow. Failing to abide by bail conditions or recognizance of bail is a criminal offence. These conditions are offence specific and can vary greatly depending on the charges and the risks posed by that specific offender.

WHAT IS A SURETY

A surety is a person that will come to court and make a promise to supervise the accused while out on bail. This individual will be responsible to ensure the accused will be in attendance at court when they are required to and follow the conditions of their release. A surety will often not only undertake to make sure the accused abides by the terms of the release but will guarantee a significant amount of money to secure the release of the accused. A cash deposit may also be required and if the accused violates any of their terms of release.

BAIL REVIEW

A bail review occurs after a decision on bail is made by the court. This is normally the next course of action when an accused has been denied bail and wants to appeal the decision. The appeal is made to a higher court for review. This appeal works both ways and can be brought by either the Crown or the Defence to contest a decision made by the court.

The information provided in this article is merely information for the reader and should not be construed as legal advice. If you or a loved one have been charged or are currently being investigated for a crime, ensure your rights are protected and call Chand Snider LLP.

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