Bail Hearings in Toronto, ON
What happens upon arrest?
A police officer (called a “peace officer”) has arrested you. What happens to you will depend whether you were arrested pursuant to a warrant or not. Most people are arrested without a warrant. Most people arrested without a warrant will usually be released from police custody same day (usually within hours of your arrest). Rather than hold you for bail, an accused is released by signing a “Promise to Appear” or an “Appearance Notice” which compels the accused to attend court.
For those arrested pursuant to a warrant, a bail hearing will determine whether the accused is released or detained in custody pending the resolution of their charges. The same is true for those arrested without a warrant but who the police determine a bail hearing is required.
The grounds upon which the police can hold you for a bail hearing are carved out in s. 497(1.1) of the Criminal Code. A police officer who believes on reasonable grounds (link to existing content – glossary) that a bail hearing is required in order to:
(i) establish your identity;
(ii) secure or preserve evidence;
(iii) prevent the continuation or repetition of the same or another offence;
(iv) the need to ensure the safety and security of a victim or witness; or
(v) reasonable belief that the accused will fail to attend court as required.
If you have been held for a bail hearing, you are in need of immediate legal representation. The bail hearing is one of the most important hearings you will face. Your liberty is at stake before you are even properly tried.
Don’t forget that you have a right to have a bail hearing . Stated more correctly, everyone charged with an offence has the right “not to be denied reasonable bail without just cause” (see s. 11(e) – Charter)
If you’ve been charged with an offence, call Carlos Da Cruz for your best chance at being released from custody. Call [enter phone number – make it mobile friendly] to start preparing your bail hearing. Time is of the essence,.Call now!
How to Prepare for a Bail Hearing
According to s. 503 of the Criminal Code it is expected that you are to have a bail hearing as soon as possible or within 24 hours, subject to some exceptions. From a practical point of view, a bail hearing is a unique court process. It’s fast and requires fast action.
If the Crown will not consent to your release, a justice will have to determine whether to release you or not. Everyone is entitled to be released unless their detention is determined in accordance with Part XVI of the Criminal Code
The best practice in seeking someone’s release at a bail hearing is to develop a comprehensive plan of release. While there is no “one size fits all” strategy, an attractive release plan includes considering:
(i) Developing ties to the community;
- Establishing a permanent residence in the community;
- Showing employment within the community;
- Family ties
(ii) An effective plan of supervision. This may include having a suitable surety, employment, or a combination of both employment and direct surety supervision.
(iii) A suitable surety. The determination of a suitable surety involves considering:
- The relation the surety has to the accused;
- Their financial resources;
- Their apparent trustworthiness. This may include determining whether the surety has a criminal record, is currently on bail conditions, or has been a good and sufficient surety in the past;
- Has the means to supervise the accused
(iv) A supportive employer or at the very least stable employment
(v) Character witnesses;
(vi) Addressing underlying personal issues such as:
- Mental health
- Substance abuse issues
(vii) A proven ability to follow rules imposed by the court
The Decision to Release
Onus v. Reverse Onus
There are two types of bail hearings: Crown Onus or Reverse Onus
Most bail hearings are Crown Onus proceedings. This means that the onus (duty or burden) is on the Crown to show why you should be detained.
In some circumstances, an accused will have the onus to show why they should be released. This is referred to as a reverse onus bail hearing.
Reverse onus bail hearings are set out beginning at s. 515(6) of the Criminal Code arise when:
- An accused is charged with an indictable offence (other than an offence listed in s. 469
- An accused is alleged to have committed another offence while on release on other charges
- The accused is charged with an offence pursuant to s. 467.11, 467.12, 467.13 or some other serious offence connected to a criminal organization
- Select offences under the Security of Information Act;
- An offence under s. 99, 100, or 103 (Weapons trafficking, possession for the purpose of weapons trafficking, or knowingly importing or exporting weapons without authorization, respectively)
- Certain offence alleged to have been committed with a firearm;
- Offences involving firearms, prohibited or restricted weapons or devices, explosives, or a cross-bow while the accused was under a weapons prohibition order;
- An indictable offence other than one listed in s. 469 AND the accused is not ordinarily resident in Canada
- A drug offence that is punishable by imprisonment for life in sections 5 to 7 of the Controlled Drugs and Substances Act
- The accused in a reverse onus hearing has to address why they should be released and address the three grounds for detention (link to grounds for detention heading in this section) set out in s. 515(10)
Prior Criminal Record
You have been charged and you have a criminal record. You might be thinking that you won’t likely get released if you have a prior criminal record.
Without a doubt, the presence of a criminal record is heavily factored in a justice’s decision to grant bail. However, it’s not so much the existence of a criminal record that creates a challenge, but rather the nature of the record including the nature of the convictions, the sentences received, the age of the record and whether there are prior convictions for failing to abide by court orders. It goes without saying that the more serious and recent the criminal record, the greater challenge in convincing a justice that your release is warranted.
Grounds for Detention
Section 515(10) of the Criminal Code sets out the grounds upon which a court can deny bail and keep you in custody following a bail hearing:
The first ground for detention requires the bail court to consider whether you are a flight risk. That is, whether the bail court determines that your detention is necessary in order to ensure you attend court and deal with your charges;
The second ground for detention requires the bail court to determine whether your detention is necessary for the protection or safety of the public. This requires the bail court to consider all the circumstances including the substantial likelihood that you will commit further offences or interfere with the criminal justice system if you were released; and
The third ground covers miscellaneous circumstances that don’t fall squarely within the first two grounds above. The bail court has to determine whether your detention is necessary in order to maintain confidence in the administration of justice. A bail court has to consider all the circumstances of your case which routinely involve assessing:
- The apparent strength of the Crown’s case. The weaker the evidence, the more likely you are to be released;
- The gravity of the offence. The more serious the alleged facts in a given case, the more likely a court will detain you;
- Whether any weapons, in particular, whether a firearm, was used; and
- Whether the offence with which you were charged carries a potentially lengthy period of imprisonment or to a minimum term of imprisonment of 3 years or more upon conviction.
Remember the s. 469 offences referred to above? Well, if you are charged with one of those listed offences, then, pursuant to s. 515(11) your detention is mandatory.
Call Carlos Da Cruz for immediate assistance with your bail hearing.
Carlos Da Cruz: Barrister & Solicitor
2201 W. Finch Ave. Suite 24
Toronto, ON M9M 2Y9416-800-6202
Restrictions may apply.
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