Bail Hearings
A bail hearing is a legal process during which a judge determines whether an individual should remain incarcerated or be allowed to return to the community while their criminal case is pending in court.
The Bail Hearing Process
If a person accused of a crime is not released by the police, they must appear before the court for a bail hearing. During this hearing, a court official, such as a judge or justice of the peace, evaluates the evidence and arguments presented by both parties. Subsequently, a decision is made regarding whether the accused should be detained or released, either with or without certain conditions.
The court takes into consideration any evidence provided by the prosecution to ensure the safety of the public, victims, and witnesses. Factors considered may include the severity of the charges, the presence of violence, weapons, or firearms, and the individual’s prior criminal history.
Furthermore, law enforcement and the judiciary must consider whether the accused person belongs to a marginalized group, such as Indigenous communities, that faces disproportionately negative treatment within the criminal justice system. This consideration is in response to legal rulings by the Supreme Court of Canada aimed at addressing the overrepresentation of certain groups, particularly Indigenous individuals, who often face higher rates of bail denial.
Outcome of the Bail Hearing
Following a bail hearing, the court may grant bail, which is a court order permitting the accused to reside in the community while their case is pending trial. Typically, conditions are attached to this bail, comprising specific rules that must be strictly adhered to. Failure to comply with these conditions may result in the accused being returned to custody until their next court appearance.
Preparing a Bail Plan
Before the court makes a decision, it’s crucial to address the Crown’s concerns about granting bail. This process, also known as a bail plan, involves considering various factors:
- Residence: Determining where the individual will live while on bail.
- Supervision: Identifying who will supervise the accused, such as a surety or a Bail Supervision Program if a suitable surety isn’t available.
- Release Conditions: Establishing reasonable and necessary conditions for release, such as curfews or work/school obligations.
- Employment or Education: Providing information about the accused’s job or educational pursuits.
- Substance Issues: Detailing plans to address any drug or alcohol-related concerns related to the alleged offense.
- Court Attendance: Explaining how the accused will keep track of court dates and ensure their attendance.
In essence, a bail hearing is a critical legal process where an accused person’s liberty is at stake. It involves a comprehensive assessment of evidence and considerations to strike a balance between individual rights and public safety.
Inform Your Lawyer:
- How to contact friends or family.
- If you identify as First Nation, Métis, or Inuit.
- Any injuries, illnesses, mental health conditions, or addiction issues you have.
Proceedings During a Bail Hearing
Denial of Bail
The Criminal Code outlines the three criteria under which a defendant might be denied bail:
- Ensuring the defendant’s appearance in court as required (referred to as the “primary ground”).
- Safeguarding the public, victims, and witnesses by assessing whether there is a likelihood that the defendant will commit another offense or obstruct the administration of justice if released (referred to as the “secondary ground”).
- Upholding confidence in the administration of justice, taking into account factors such as the strength of the prosecution’s case, the seriousness of the offense, potential sentencing, and the use of firearms (referred to as the “tertiary ground”).
Burden of Proof in Bail Proceedings
In bail proceedings, the general principle is that when a Crown prosecutor seeks the detention (denial of bail) of an accused person, they must provide evidence to the Court that sufficiently justifies detaining the accused.
This is known as the “burden of proof,” indicating that the Crown is responsible for demonstrating why the accused should not be granted bail. The Crown only needs to establish grounds under one of the three aforementioned criteria to deny bail.
However, the Criminal Code also specifies that in certain situations, such as when an accused is charged with more severe offenses like murder or sexual assault with a firearm, the burden of proof shifts from the prosecution to the accused. This is referred to as a “reverse onus.” In a reverse onus scenario, the presumption is that the accused should remain in custody while awaiting trial unless they can show the court that there is no justifiable reason for their detention. The decision to grant or deny bail is made by a judge or justice of the peace.
A reverse onus applies when the accused is charged with offenses involving significant misconduct and which raise particular concerns for public safety, such as:
- Murder or attempted murder.
- An indictable offense committed while the accused was on bail for another indictable offense (an indictable offense being the most serious type of criminal offense).
- An indictable offense (unless the accused is usually released on bail in such cases).
Applicable Offenses
- Residence in Canada.
- Offenses related to drug trafficking, import, or export.
- Activities involving weapons trafficking, possession of weapons for trafficking, unauthorized firearm or weapon import/export, intentional firearm discharge, reckless firearm discharge.
- Allegations of offenses committed with firearms, including sexual assault, accompanied by threats or bodily harm, aggravated sexual assault, kidnapping, hostage-taking, robbery, or extortion.
- Indictable offenses involving firearms or weapons while the accused is under a weapons prohibition order.
- Crimes associated with criminal organizations and terrorism.
- Specific types of re-offenses, such as failure to appear in court, non-compliance with previous bail orders or summonses.
- Offenses of violence against an intimate partner with a prior conviction for a similar offense (introduced in former Bill C-75).
Procedure – Step 1:
According to the Criminal Code, you possess the right to a bail hearing within 24 hours of your arrest, if a judge is available, or as promptly as possible otherwise.
You might be transferred from the police station or jail to the courthouse, where you’ll either be held in a cell or connected to the court via a video link.
During this stage, you’ll have an opportunity to consult with your lawyer or a provided duty counsel, a free lawyer available for the day.
Procedure – Step 2:
The Crown presents the allegations against you—these are the alleged crimes attributed to you by the police and the Crown.
In specific instances, the Crown may summon a witness, often the investigating officer. The Crown’s role is to establish reasons against granting you bail.
It’s vital for you to focus on your bail plan, which outlines where you’ll reside and how you’ll be supervised in the community. Refrain from discussing the charges themselves.
Procedure – Step 3:
Your lawyer can call you, a potential surety, or both, to the stand. Their goal is to convince the court that if you’re granted bail, you’ll adhere to your bail conditions and attend your court dates.
The Crown retains the ability to question you or the surety if they testify.
Procedure – Step 4:
Subsequently, a judge will decide whether to release you on bail or keep you in custody until your trial.
Factors considered include the gravity of the charges, your criminal history, and your proposed plan.
If released, you’ll typically have specific conditions to follow. Adhering to these conditions exactly is of utmost importance, as failing to do so could result in your return to custody.
If you’re not granted release, note that you won’t have another bail hearing. Your lawyer or duty counsel can explain the available options to you.
Conditions Upon Release on Bail
Upon releasing an accused individual on bail, the court has the authority to impose specific requirements that must be adhered to. The purpose of these conditions is to mitigate any potential risks associated with the accused and to ensure that they refrain from committing further criminal offenses while awaiting their trial.
Types of Imposed Bail Conditions
The “ladder principle” is a well-established concept in bail proceedings, consistently acknowledged by various courts, including the Supreme Court of Canada. This principle provides guidance on determining the appropriate degree of restrictions to be applied to an accused person granted release pending trial. The fundamental approach is that courts should impose the least restrictive conditions necessary to address the particular risks posed by the accused. As the potential risk posed by the accused increases, the extent of their freedom restrictions also increases (resulting in higher steps on the metaphorical “ladder”).
Examples of potential conditions that might be mandated include:
- Compliance with court appearance schedules.
- Regular reporting to a law enforcement officer.
- Limiting residence within a specified geographic area.
- Obligation to report changes in address or employment.
- Surrendering a passport to prevent travel.
- Designating a surety (an individual responsible for supervising the accused while released, often with shared residence requirements).
- Prohibition from possessing or utilizing devices capable of internet access.
- Imposition of house arrest or curfew, subject to written authorization from a designated person, like a probation officer or a surety who monitors the accused during their release.
- Wearing electronic monitoring devices such as ankle bracelets.
To address public safety concerns, there are certain situations in which the court must mandate or consider imposing specific conditions, such as:
A condition prohibiting the accused from possessing firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition, or explosive substances, unless the court deems such a restriction unnecessary for the safety of the accused or others.
Determining the necessity of an order preventing the accused from contacting any victim, witness, or other individuals specified in the order.
Evaluating whether a condition restraining the accused from entering specified locations (e.g., where the offense occurred or where a victim resides) is warranted to ensure the safety and security of victims, witnesses, justice system participants, or others.
Consequences of Breaching Bail Conditions
An accused individual who breaches their imposed bail conditions may have their bail revoked. In the event of a breach, the accused could be detained and subsequently brought back to court to justify why they should not remain in custody until their trial. Moreover, breaching bail conditions can lead to new criminal charges related to the breach, potentially complicating the individual’s ability to secure bail in the future.