Bail Hearing | Judicial Interim Release | Show Cause

If you are reading about Judicial Interim Release (Bail), most likely it is because someone you care about has been arrested and taken into custody, or you have a date with the police and want to know what to expect. The bail process is one of the most fundamental steps in the criminal process. Whether or not you or someone dear to you is released, and the conditions of release, will set the stage for the rest of the proceedings.

Our criminal defence lawyers have conducted countless bail hearings in front of Justices of the Peace, Provincial Court Judges, and the Court of Queen’s Bench of Alberta in Calgary, Edmonton, and all over Alberta. In our experience, the best bail hearings are those that can be avoided by quick action by defence counsel. It is therefore extremely important to contact a lawyer as soon as possible. Indeed, the mere fact of having a lawyer present for a bail hearing can improve your chances of being released because it shows the court that you have already taken steps to address the charges, and are more likely not to miss court (presumably because you have counsel to remind you of the next court date and appear for you).

Different police agencies have different policies regarding when a person can be released immediately upon being charged, and when a person must appear in front of a Judge or Justice of the Peace. The most challenging cases that typically warrant intervention by defence counsel are those in which police policy mandates an appearance in front of a Judge or Justice of the Peace. In such cases the person charged is typically detained in custody for a prolonged period of time while waiting for the next available Justice of the Peace or Provincial Court Judge. In Calgary, for example, accused persons are detained and taken downtown to what is now called the Court Services Section (aka: Arrest Processing Unit). The phone number is 403-428-3400, but note that the police will not release any information (including if the person is even being held there) unless the caller is a lawyer or if the person detained is a minor.  The same process occurs in Edmonton, but again, only a lawyer can call in to speak to the arrested person.

Types of Release

There are several forms of release available to the police and the Court.  The most common types of release are as follows:

  • Appearance Notice/Promise to Appear
  • Recognizance

Your particular circumstances and the type of offence you are charged with will most likely dictate the manner in which the police will proceed.

Appearance Notice/Promise to Appear

Release by way of Appearance Notice or Promise to Appear is typically reserved for detained people with little or no prior criminal history, and for relatively low level criminal charges.  Release of this type is in the discretion of the police, and does not require a formal Bail hearing.  The release conditions associated with these documents are very minimal.  The most important of the conditions is that you attend court on the specified court date and continue to attend court thereafter as required.  You will also likely find a condition that you must attend a police station for the purposes of “identification”, which is a fancy way of saying fingerprinting.  Make sure you don’t miss either date because a warrant will issue for your non attendance.

If the police feel that your circumstances require more onerous conditions the may require you to sign an “undertaking” outlining such conditions.  Some of the typical additional conditions include the following:

  • Keep the peace
  • Reporting to the police
  • Curfew
  • No contact with a specified person or persons
  • Non attendance at a specific address or location
  • No leaving the province
  • No alcohol

If any of the conditions the police propose in the Undertaking seem excessive, it may be possible to negotiate them, but if you really want to contest them, you will be held in custody until you are able to appear in front of a judge or justice of the peace.  Note that these conditions can be reviewed at the first court appearance, so for the sake of getting out of police custody, it may be worthwhile signing for the conditions, even if they appear excessive, and cleaning them up later.

Recognizance

Release by way of a Recognizance is reserved for cases where the charges are serious, the accused is a flight risk, there is a significant risk that further offences will be committed while on release, and/or there is a significant criminal history.  In such circumstances, the police either do not have discretion to release the person themselves, or are bound by policy to conduct a bail hearing.

A Recognizance release will have to be secured by either a cash deposit, a no cash deposit, or a surety.  Additional information can be obtained from the Calgary Court Centre Bail Office in Calgary at 403-297-4444, but the basic breakdown is as follows:

  • Cash deposit – requires a specified amount of cash to be deposited before release is authorized.  In Calgary, this can be paid at the Arrest Processing Centre, at the Calgary Court Centre, or at the Calgary Remand Centre.  In theory, bail can be paid at any bail office in Alberta.  The bail money is returned automatically upon the expiration of the recognizance (presumably when the charges are dealt with completely).
  • No cash deposit – specifies the cash amount that needs to be paid only if the conditions of the release are not followed.
  • Surety – requires that someone post something of value (or a portion thereof) as collateral to secure release.  For example, if the surety is set at $5000, a parent of the accused person can put up their vehicle as that collateral assuming the vehicle is worth at least $5000.

The Recognizance sets out the next appearance date, as well as the conditions of release.  A Recognizance is typically required when the case is more serious, and as such, conditions are often more robust than in an Undertaking, and can include the following:

  • Deposit your passport;
  • Abstain from communicating directly or indirectly with named individuals;
  • Abstain from attending named locations;
  • Abstain from consuming alcohol or other intoxicating substances;
  • Not be in possession of a cellphone;
  • Not be in possession of a weapon;
  • Remain within Alberta;
  • Abide by curfew;
  • Abide by house arrest;
  • Attend for counselling/treatment;
  • Not be behind the wheel of any motor vehicle;
  • Not be in a motor vehicle without the registered owner;
  • Not be in possession of identification that is not in your name;
  • Not be in contact with anyone younger than 18 years of age;
  • Not have access to the internet;
  • Not be in possession of any electronic device capable of accessing the internet;

And others.

Unlike an Undertaking, which can be reviewed at the first court appearance automatically, once the conditions of the Recognizance release are set, it is very difficult to change them.  Unless the Crown prosecutor agrees to vary the conditions, the only recourse is to conduct a Queen’s Bench bail review hearing.  This entails significant time and expense, so it is best to negotiate the terms of release as much as possible at the initial bail hearing.

Factors Considered at a Bail Hearing

Whether trying to convince the police officer, the prosecutor, the Justice of the Peace, or the Judge, the factors to consider are always the same: (1) is detention necessary to secure attendance in court; (2) is detention necessary to protect the public from a substantial risk of re-offence; (3) is detention necessary in all the circumstances to maintain confidence in the administration of justice (this includes the gravity of the offence and the strength of the crown’s case).  The specific wording of these factors can be found in s. 515(10) of the Criminal Code.

How a Criminal Lawyer can Help You get Released Faster

With local lawyers in Calgary and Edmonton, our criminal defense lawyers are able to contact the police and the person charged while they are being detained.  We typically make all reasonable efforts to discuss the file with the “presenting officer” or “duty Crown” and negotiate release without the need for a contested bail hearing.  Although the person in custody must still appear before a judge or justice of the peace, it goes much smoother when the officer or prosecutor in charge is agreeable to release and we present a joint release plan.

If we cannot convince the presenting officer or prosecutor, there are several options open to us.  We can either chose to conduct a bail hearing in front of a Justice of the Peace (which must occur within 24 hours of arrest) or can chose to adjourn the matter to court on the next sitting day where a judge and Crown prosecutor will be in attendance.  If the matter is particularly complex, a bail hearing may need to be scheduled several days into the future.

Conducting the bail hearing properly is sometimes more important than any other step in the criminal process (with the exception, perhaps, of the trial).  Indeed, an order of detention can impact how the rest of the case is conducted.  Unfortunately, some people spend more time in jail waiting for their trial date than they would even if convicted at trial. As such, we do everything possible to ensure that our clients are released from custody as soon as possible.

We understand it’s tempting to conduct your own bail hearing in the hope of getting out sooner, but there are some significant risks in doing so, including the following:

  • You may not know what information is relevant to present to the judge;
  • You may not be able to articulate that information in a structured way;
  • You may not be able to contact the right people or coordinate the right resources to present a strong release plan;
  • You may not have access to the police information package to determine the strength of the Crown’s case, or more importantly, argue the weaknesses in their case;
  • Even if you are able to access the police information package, you may not be able to discern the legal issues and arguments that may be relevant to your case; and
  • Whatever you do say to the Court may be used against you in subsequent prosecution or at your trial.

Our key function in relation to your bail hearing is to present the relevant information in a meaningful and understandable way.  At the same time, we can review the merits of the case and point out the pitfalls in the Crown’s case that support your case for release.  Finally, we can structure our submissions to, as much as possible, insulate you from having that information used against you later on.

Please note that what you have read above is a relatively basic insight into the Criminal Bail process.  There are numerous exceptions and nuances that apply to each case, and as such, it is important to consult one of our dedicated criminal lawyers to discuss the specific circumstances of your case as soon as possible.

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Michael answered his phone at 10 o’clock at night and he and his associate helped us navigate the intimidating criminal justice system over the next 72 hours. They were available to us 24/7, clearly explained our options at each step and answered all of our questions promptly. It felt like having a guardian angel watching over us. If you have a criminal matter that you need assistance with, this is the man you need to contact.

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I was charged with assault for a minor scuffle. I knew I was in good hands with Michael’s solid legal advice and preparation for my pending case. Because of his knowledge, advice and legal expertise, all charges were dropped. Michael and his team take pride in providing not only the right result, but quality customer service along the way. I heartily recommend Michael Oykhman to anyone seeking legal counsel!

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Disclaimer: All results of cases handled by the lawyer/firm are not provided. The results provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.

Successful Case Results

Break and Enter, Theft Under $5000, Possession of Break-In Instruments, Possession of a Weapon for a Dangerous Purpose, Charges Withdrawn

Airdrie Provincial Court
Case Number: 23500891

Our client was facing a number of serious criminal charges after it was alleged that he had broken into a home and had stolen a number of items.

Upon being retained we immediately sought disclosure, including a fingerprint analysis. We determined that the identification of our client as the accused could not be proven beyond a reasonable doubt.

We negotiated with the Crown and they withdrew all of the charges.

Successful Result: Charges Withdrawn

Domestic Assault, Charge Withdrawn

Airdrie Provincial Court
Case Number: 7620521

Our client was charged with assault against his ex-wife. He was also served with an Emergency Protection Order (EPO) that contained several serious allegations.

Once we were retained we immediately sought disclosure and began resolution discussions with the Crown. We found several extreme discrepancies between the allegations in the EPO and what the complainant told police. We used this to challenge the complainant’s credibility, and the assault charge was withdrawn weeks after our client’s first court appearance.

Successful Result: No Criminal Record, Charge Withdrawn

Impaired Driving and Over .08, Charges Withdrawn

Calgary Provincial Court
Case Number: 7519721

Our client drove through a checkstop, indicated he had some drinks that evening, and was noted to have glassy mirrored eyes and a smell of alcohol on his breath.  He failed the roadside breath test, blew .140 on the evidentiary instrument, and was charged with impaired driving and driving over .08.

Once we were retained, we set the matter for trial and filed a motion alleging a violation of our client’s Constitutional rights under the Canadian Charter of Rights and Freedoms.  Days before trial, we successfully negotiated the withdrawal of all charges.

Successful Result: No Criminal Record, Charges Withdrawn
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Disclaimer: All results of cases handled by the lawyer/firm are not provided. The results provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.