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The Charter of Rights and Freedoms guarantees everyone “the right to not be denied reasonable bail without just cause”. Although this may sound relatively straight forward, the bail process is actually quite intricate, and can be difficult to navigate without legal representation.

Upon your arrest, the police often have the option of releasing you on the spot or shortly thereafter. However, if they do not do so, then you will be brought before the Ontario Court of Justice for a bail hearing within 24 hours, or as soon as otherwise possible. A bail hearing is the process whereby a judge (or justice) determines whether or not you should be released from custody while awaiting the resolution of your matter.

The Crown may consent to your release on bail if they have no concerns pertaining to the following “3 grounds”:

(1)    Primary Ground (flight risk)- is detention necessary to ensure you attend court as required? Does the accused have a prior record for failing to attend court?

(2)    Secondary Ground (risk of re-offending)- is detention necessary to protect the public by ensuring you do not commit any further offences? Does the accused have a  record for breaching bail or probation order?

(3)    Tertiary Ground (interests of the administration of justice)- is detention necessary to maintain society’s confidence in the justice system. Is the allegation so notorious that the accused should be kept in custody pending trial?

If the Crown does not consent to your release, it means that your detention is sought on one or more of the above grounds. Accordingly, you should be prepared to put forward arguments to counter such concerns. For example, if the Crown is alleging that you are a flight risk, demonstrate that you have ties to the community or steady employment. If the Crown is arguing that you will re-offend, alleviate this concern by showing you have no criminal record or history of breaching court orders

The best way to maximize your chances of release is to find a friend or family member who is willing to act as your “surety”. A surety is a person who agrees to supervise you and takes responsibility for ensuring your attendance in court. It is also the surety’s duty to make sure that you are on your best behaviour while out on bail, and do not commit further offences or otherwise breach your terms of release. Often, courts will not even consider release on bail where the accused does not have a solid surety in place. A solid surety will have the following attributes:

-complete understanding of the responsibilities of a  surety

-willingness and ability to supervise the accused for however long the bail remains in place,

which could be several months

-willingness and ability to pledge a sum of money to ensure the accused abides by the bail terms

-absence of any outstanding charges or criminal record

-not currently acting as surety for any other person

On the day of the bail hearing, you and your surety (or sureties) will attend court in person. Your surety will then likely be asked several questions by both the Crown and the Defence, and possibly also the judge. These questions will be aimed at ascertaining the surety’s awareness of, and ability to perform, the duties of a surety. Based on the surety’s testimony, as well as the Crown’s and Defence’s oral submissions shortly thereafter, the judge will make a determination as to whether he or she feels you should be released on bail. If the judge deems the surety appropriate and has no concerns pertaining to the previously mentioned 3 grounds, the judge will order your release on terms that he or she sees fit. These terms may require that you reside with your surety and/or abide by a strict curfew. As these conditions remain in force until your matter is resolved, it is important that your surety understands that his or her responsibilities may last several months. In other words, if you and your proposed surety will get sick of each other within a week, you may want to reconsider your choice of surety.

As indicated above, your surety will often be required to pledge a sum of money (although generally not a cash deposit) to the court as assurance that you will abide by the terms of your bail. If you fail to appear on your court dates or otherwise breach your bail, the Crown may seek to collect this money. In such case, an “estreatment hearing” will be held where your surety will have the chance to explain their side of the story and contest the forfeiture of their pledged money. After the hearing, the judge will make an order as to whether all, some or none of the money will be surrendered. Afterwards, you will likely be detained and your surety will be relieved of their responsibilities to supervise you.

If you are not released from custody after your bail hearing, an application can be brought to the Superior Court of Justice for a bail review. However, the detention order may only be overturned if your circumstances have significantly changed since the original bail hearing, or if there were errors in law made at your bail hearing. Furthermore, it generally about 3 – 4 weeks to gather all the necessary documents for a bail review. As such, it is critical to get things right the first time at the initial bail hearing. The best way to ensure the initial hearing goes smoothly is to retain retaining legal counsel to assist you. This will help ease the stress of the bail process, and at the same time, greatly improve your chances of release.

For more information on bail hearings, bail reviews and estreatment hearings, contact the law offices of Aitken Robertson at 1-800-668-1657.