Once you’ve been arrested and charged with a criminal offence the police can either release you from the station or detain you and bring you before a bail court within 24 hours of your arrest.
If you are released from the police station, the police will give you a form called a ‘Promise to Appear’. The form will advise you of your charges and your next court date as well as any restrictive conditions that you are to abide by.
If the police detain you, you will be brought to the police station, you will be read your rights and will be placed in a holding cell until you are transported to court to address your bail. Due to the pandemic, bail hearings are typically being conducted via Zoom from the police station. It is unlikely that you will be transferred to the courthouse for your bail hearing, however, this may change in the near future.
Whether or not the police decide to release you from the station or bring you before a bail court will depend on several factors including, but not limited to: the seriousness of the allegations, if you have a criminal record, if you were on a previous release order and if you are considered to be a flight risk.
Steps of Bail
1. Make a Bail Plan
Once you’ve been detained by police for bail, the first step is to contact your lawyer to help you come up with a bail plan. You will have the opportunity to speak with your lawyer at the police station. If you do not have a lawyer in mind, you are also able to speak with duty counsel for free legal advice.
Once you speak with your lawyer of choice and confirm that you would like to retain them for your bail hearing, you will then need to provide your lawyer with contact information for your friends and family who are potentially willing to be your sureties. A surety is someone who makes a promise to the court to supervise you and to ensure that you are following all of the release conditions and that you are attending court. The surety will also be required to make a financial promise to the court that they could lose if you breach one of your conditions (the amount of the financial promise can vary and will depend on the circumstances of your case).
Once you provide the contact information for potential sureties, your lawyer will contact them to confirm if they are willing and able to be a surety. Some common reasons why someone is an unsuitable surety: they have a criminal record, they are currently a surety for someone else, they were your surety previously and you breached while under their supervision.
2. Get the Bail Package and Crown’s Position
Once you have spoken with your lawyer, they will then contact the Crown’s office to request a copy of your bail package and ask the Crown what their position on bail is. Your lawyer will try to persuade the Crown that the circumstances of the offence do not require detention and that the bail plan being proposed is strong enough to release you to. These negotiations happen outside of the court room. The Crown may agree to the plan that your lawyer has proposed to them—this is called a consent release. Alternatively, the Crown may not think the plan is strong enough and is therefore not consenting to your release. If the Crown does not consent to your release, your lawyer will have to run a contested bail hearing to convince the court that you should be released to the proposed plan.
3. The Bail Hearing
Usually, your bail hearing will take place in front of a Justice of the Peace in the Ontario Court of Justice, unless you are charged with a s.469 offence. If charged with a s.469 offence, your bail hearing will take place in the Superior Court of Justice in front of a judge.
You still have to go before the court even if your lawyer and the Crown agree on a plan for your release. The power to release you lies with the court. It is rare that the Justice of the Peace will not agree to your release when both parties have already worked out and agreed upon the proposed plan.
Contested Bail Hearing
For most offences, the onus is on the Crown to show the court why you should be detained. However, for some offences, there is a reverse onus, meaning that the onus is on you to prove why you should be released. Both onuses must be proved on a balance of probabilities.
At your bail hearing, your lawyer will make submissions regarding why you should be released on the plan being proposed. They will explain to the court why this plan should satisfy any worries that the court may have in releasing you, they may present case law where similar cases have resulted in release from custody, they may point out the weaknesses in the Crown’s case against you and your lawyer may also argue why the public should have no concern if you were released to the plan.
At the end of your contested bail hearing the court will either release you to terms as set by the court, not release you but set your bail terms (bail set not met) or detain you.
If you or someone you know has been charged with a criminal offence, contact the lawyers of Lockyer Zaduk Zeeh to assist you with your bail hearing.