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.
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 across Ontario 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 Toronto, for example, accused persons are detained at the Toronto Police Service Division that is responsible for the alleged crime. The phone number for each division is 416-808-[Division Number – 00], so for example, the number for 52 Division is 416-808-5200, 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. When it comes time for the accused person’s bail hearing, he or she will be transported to the Courthouse associated with the Division he or she was held at, except for on weekends when Old City Hall holds weekend bail court.
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
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
No contact with a specified person or persons
Non attendance at a specific address or location
No leaving the province
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.
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:
Cash deposit – requires a specified amount of cash to be deposited before release is authorized. In Toronto, this can be paid at the Courthouse where the bail hearing was held (at Old City Hall, for example, you can pay the cash deposit at room 7 on the ground floor), at the Toronto South Detention Centre, or at the Remand Centre at which the accused person is being held. 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. In Ontario, because of the prevalence of Justices of the Peace and Judges requiring a surety, various Bail Programs have been set up that provide an alternative to a surety. The contact number for the Toronto Bail Program is 416-314-3765.
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 Ontario;
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;
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 Superior Court 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 Toronto, our criminal defence 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 choose to conduct a bail hearing in front of a Justice of the Peace (which must occur within 24 hours of arrest) or can choose to adjourn the matter to a Court 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 meaningfuland 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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