Being arrested and held in custody can be a daunting experience for both the accused and their loved ones. In Ontario, understanding the bail process is essential to ensure the timely release of someone who has been detained.
Bail allows the accused to remain free until their case is resolved in court, under specific conditions.
| In this article, JuriGo explains what bail is, the steps involved in bailing someone out of jail and important considerations you should keep in mind! |
|---|
What is Bail?
Bail is a fundamental component of the Canadian legal system, offering individuals accused of a criminal offence the opportunity to be temporarily released from custody while awaiting trial. However, bail is not automatically granted; it is a decision made by the court, which considers the specific circumstances of the case.
This legal mechanism seeks to balance the presumption of innocence, where the accused is considered innocent until proven guilty, with the need to maintain public safety and ensure the effective operation of the justice system. By granting bail, the court allows the accused to remain in their community, often under specific conditions, while awaiting the resolution of their case.
The Legal Foundation of Bail in Canada:
In Canada, the right to bail is enshrined in the Criminal Code of Canada and is further supported by section 11(e) of the Canadian Charter of Rights and Freedoms, which guarantees that no one can be denied reasonable bail without just cause.
This means that individuals cannot be kept in detention solely because they are accused of a crime; instead, the crown must provide valid reasons for why detention is necessary.
The Bail Hearing: Step-by-Step
When a person is not released directly from the police station after being arrested, they must appear before a judge for a bail hearing. This hearing is a critical legal process where the court decides whether the accused can be released from custody while awaiting trial.
Bail hearings ensure that the rights of the accused are protected while also addressing concerns about public safety and the integrity of the justice process.
During a bail hearing, the Crown prosecutor must demonstrate why the accused should remain in custody, while the defence presents arguments for why bail should be granted. The hearing involves multiple stages and is governed by principles of fairness, judicial discretion, and the presumption of innocence.
Step 1: Initial Appearance
At the beginning of the bail hearing, the judge will ensure the accused understands the charges against them and the purpose of the bail process. This stage is vital because it upholds the accused’s legal rights, including their right to legal representation.
The accused will be informed of their options for obtaining legal counsel. If the accused has not retained a lawyer, they may seek assistance from duty counsel, a lawyer provided by Legal Aid who offers free legal services at court.
Alternatively, the accused can arrange for their private lawyer to represent them. The judge will ensure the accused is not proceeding through the process without proper legal advice, which could jeopardize their case.
This stage is straightforward but essential for setting the tone of the hearing. It confirms that the accused is prepared to proceed and understands their rights.
Step 2: Crown’s Case
Once the initial formalities are addressed, the Crown prosecutor will present their case. The Crown has the burden of proving why the accused should remain in custody. This involves explaining the allegations and presenting evidence to support their argument.
The Crown may do the following:
- Read out the allegations against the accused, which describe the events leading to the arrest.
- Introduce evidence, such as police reports, witness statements, or testimony from an investigating officer.
- Highlight any concerns regarding the accused’s behaviour or criminal history. For example, if the accused has violated bail conditions in the past, this will be used to argue against release.
- Outline risks posed by the accused’s release, such as public safety concerns, flight risk, or interference with witnesses.
The Crown’s goal is to convince the judge that keeping the accused in custody is necessary to protect the public, ensure court attendance, or maintain confidence in the justice system. The evidence presented at this stage is critical because it sets the foundation for the judge’s decision.
It is important to note that, in certain situations, the Crown may decide not to oppose the granting of bail. In such instances, the Crown will present the case to the judge in order to recommend conditions it considers appropriate for the accused's release.
Step 3: The Defence’s Argument
Following the Crown’s submissions, the defence has the opportunity to argue for the accused’s release. This is a critical stage for the accused, as the defence must demonstrate why bail is appropriate and present a viable plan to address the Crown’s concerns.
The defence may take the following steps:
- Present a bail plan: The defendant or their lawyer will propose a plan that includes specific conditions to ensure the accused complies with their obligations while out on bail. The plan may suggest the involvement of a surety, impose curfews or establish residency restrictions to ensure adherence to the conditions set by the court.
- Call witnesses: The defence may call witnesses to testify in support of the accused’s release, including a potential surety. These witnesses can speak to their willingness and ability to supervise the accused, monitor their activities, and ensure compliance with the conditions of bail. Other witnesses might provide character references, affirming the accused's ties to the community, stable employment, and family responsibilities.
- Challenge the Crown’s arguments: The defence will have the opportunity to dispute the evidence presented by the Crown. This may include questioning the credibility of the Crown’s witnesses. In some cases, the defence may highlight the accused’s lack of criminal history, willingness to comply with bail conditions, or suggesting they are not a flight risk.
- Address public safety concerns: The defence will address any concerns regarding the risk to public safety. The defence may emphasize how the proposed bail conditions, such as reporting regularly to the police or staying away from certain locations or individuals, can effectively mitigate these risks.
The success of the defence’s argument hinges on presenting a comprehensive and credible plan that addresses the judge’s concerns. The bail plan must demonstrate that the accused will respect the conditions imposed and attend all future court dates.
Step 4: The Judge’s Decision
After hearing arguments from both the Crown and the defence, the judge or justice of the peace will make a decision regarding the granting of bail. This decision is carefully considered, based on legal criteria and the specific circumstances surrounding the case.
Several key factors are taken into account when making this decision:
| Factor | Explanation |
|---|---|
| Flight risk | The judge will assess whether the accused is likely to flee or fail to appear for future court hearings. The accused's connections to the community, such as family ties, employment, or residency, are critical in determining whether they are a flight risk. |
| Public safety | The court must evaluate whether releasing the accused would pose a risk to public safety. If there is evidence that the accused might commit further offences, intimidate witnesses, or harm others, bail may be denied to protect society. |
| Confidence in the justice system | The judge will consider the potential impact on public confidence in the justice system. In cases involving serious crimes, such as indictable offences, granting bail might be seen as inconsistent with justice and could undermine the public’s trust in the legal process. |
| Nature and severity of the offence | The seriousness of the charges plays a significant role in the decision. More serious crimes, particularly those involving violence, firearms, or significant harm to victims, typically result in more stringent bail conditions or denial of bail altogether. |
| Criminal history | If the accused has a criminal record in Ontario, especially one involving breaches of prior bail conditions, this may impact the decision. A history of non-compliance with court orders or repeat offences often works against the granting of bail. |
| Risk of reoffending | The judge will consider whether there is a risk that the accused might commit additional crimes while on bail. The defence can attempt to mitigate this risk by proposing strict conditions, such as curfews or monitoring, to reduce the likelihood of reoffending. |
If the judge grants bail, the accused will be released under conditions aimed at addressing any concerns raised during the hearing. Should the judge deny bail, the accused will remain in custody until trial or a subsequent bail review.
Bail Conditions:
When bail is granted, the judge will impose conditions that the accused must follow while awaiting trial. These conditions are not optional and are strictly enforced. Failure to comply can result in the revocation of bail, additional criminal charges, and further detention.
Common bail conditions include:
- No contact orders: The accused may be prohibited from communicating with victims, witnesses, or co-accused individuals. This ensures the integrity of the case and protects those involved.
- Curfews: The accused may be required to remain at a specific residence during certain hours, limiting their freedom of movement.
- Residency requirements: The accused may be required to reside with a surety or at a particular address, where they can be supervised.
- Travel restrictions: The accused may be forbidden from leaving a specific jurisdiction to reduce the risk of flight.
- Prohibition on alcohol or drugs: In cases where substance abuse is linked to the offence, the accused may be required to abstain from drugs or alcohol.
- Surrender of passports or weapons: To prevent flight or further offences, the accused may need to surrender their passport, firearms, or other specified items.
These conditions are tailored to the case’s specifics and aim to balance the accused’s right to liberty with public safety and the justice system’s integrity.
What is a Surety?
In many cases, the court requires the accused to have a surety as part of their bail plan. A surety is a person who takes responsibility for supervising the accused while they are out on bail. The surety acts as a guarantor, pledging to ensure the accused complies with all bail conditions.
To be an acceptable surety, a person must meet the following requirements:
- Be at least 18 years old
- Be a Canadian citizen or permanent resident
- Have no criminal record
- Have a meaningful relationship with the accused, such as a family member, or a friend
- Be financially capable of covering the pledged amount in the event of a breach
The surety must appear in court and testify about their willingness and ability to supervise the accused. The court will evaluate their credibility and ensure they understand the seriousness of their role. A surety must remain vigilant because failing to supervise the accused properly can result in the loss of the pledged money.
Grounds for Denying Bail:
While the right to reasonable bail is guaranteed under the Canadian Charter of Rights and Freedoms, there are legal grounds under which bail can be denied. The Criminal Code identifies three primary grounds:
- Primary Grounds: The court must be satisfied that the accused will appear for their court proceedings. If there is evidence suggesting the accused may flee or fail to comply with court orders, bail may be denied.
- Secondary Grounds: The court evaluates whether the accused’s release would pose a threat to public safety or result in further criminal activity. For example, if the accused has a history of violent behaviour or breaching bail conditions, this factor becomes critical.
- Tertiary Grounds: The court considers whether releasing the accused would undermine confidence in the justice system. In cases involving particularly serious charges, such as violent offences or those attracting public scrutiny, the judge may deny bail to maintain public trust in the legal process.
These grounds reflect the delicate balance between protecting the accused’s right to freedom and ensuring public safety and the justice system’s integrity.
The Bail Review:
If the accused is denied bail, they have the right to request a bail review. A bail review is an appeal of the initial bail decision and is heard by a higher court. To initiate a bail review, the defence must demonstrate a significant error in the original decision or present new evidence that was not previously available.
The bail review process includes the following steps:
- Filing a Notice of Application: The defence must file a formal request to review the bail decision.
- New Evidence: The defence may present new information, such as a revised bail plan, additional sureties, or evidence challenging the Crown’s case.
- Hearing Before a Higher Court: A judge will review the arguments and evidence presented by both parties to determine whether the initial decision should be overturned.
If the bail review is successful, the accused may be released under modified conditions. However, if the review fails, the accused will remain in custody until their trial or another opportunity to revisit bail arises.
How to Successfully Bail Someone Out of Jail in Ontario
Successfully bailing someone out of jail in Ontario involves not only understanding the legal process but also taking specific steps to maximize the chances of success. Here are key recommendations to help ensure a successful bail outcome:
Hire a Criminal Defence Lawyer
The most crucial step in securing bail for someone is hiring a criminal defence lawyer. Specializing in bail hearings, a defence lawyer understands the complexities of the process and can build a strong case for the accused’s release. They will prepare the necessary documents, present a tailored bail plan, and advocate for the accused in court.
If hiring a lawyer is not financially possible, consider using duty counsel, a service provided by Legal Aid Ontario for eligible individuals. Duty counsel ensures the accused’s rights are protected and helps navigate the bail hearing process.
Prepare a Strong Bail Plan
One of the most crucial aspects of securing bail is preparing a well-thought-out bail plan. The accused or their lawyer must demonstrate a commitment to complying with the court’s conditions. A clear and reasonable bail plan should address key concerns, such as:
- Residence: Identify a stable location where the accused will reside while out on bail. Ideally, a family member or friend should offer a place to stay to further assure the court of the accused's commitment to the conditions.
Choose the Right Surety
Choosing the right surety is a critical step in securing bail. The surety is responsible for ensuring the accused adheres to the conditions of bail, making trustworthiness and reliability essential. The selected individual must be responsible enough to supervise the accused and report any breaches of the bail conditions to authorities.
Financial stability is also crucial, as the surety may be required to pay the bail amount if the accused fails to comply with the conditions. Furthermore, the surety should have a clean criminal record. A person with prior convictions could make the court less likely to accept them, as it may raise doubts about their ability to fulfill their responsibilities.
By selecting someone who meets these criteria, the chances of securing bail are significantly improved, providing a strong foundation for the accused's release.
Show Ties to the Community
Demonstrating strong ties to the community can increase the likelihood of bail being granted. The court tends to favour individuals who have established connections within the community, such as:
- A stable job or consistent enrollment in school.
- Close family relationships or caregiving duties.
- Active participation in the community or a long-term residence in Ontario.
By highlighting these connections, the defence can argue that the accused has compelling reasons to remain in the community, reducing the risk of fleeing before trial. These factors can significantly strengthen the case for bail, showing the court that the accused has a vested interest in returning for future proceedings and is not a flight risk.
Address Public Safety Concerns
If the Crown opposes bail due to public safety concerns, it’s essential to address these in the bail plan. The defence lawyer should offer conditions that can mitigate any risks, such as:
- Curfews to ensure the accused remains at home during certain hours.
- No-contact orders to prevent the accused from interacting with potential victims or witnesses.
- Drug or alcohol abstinence if substance abuse is a concern.
By showing that the accused poses no threat to public safety, the defence can reassure the court that granting bail will not jeopardize the community.
Be Prepared to Pay Financial Assurance
In many cases, the court may require a financial insurance to ensure the accused complies with bail conditions. While the full amount may not need to be paid upfront, having the money available if required can make the process smoother.
This could include a cash deposit or another form of financial security. Ensure that the surety is financially capable of meeting these requirements if needed.
Demonstrate No Risk of Reoffending
The court will assess whether the accused poses a risk of committing further offences while on bail. The defence lawyer can help by highlighting positive factors, such as:
- The accused’s willingness to comply with all conditions.
- Their commitment to rehabilitation or attending counselling if necessary.
- Any lack of criminal history or previous breaches of bail conditions.
By following these steps, gathering strong support, and working with an experienced lawyer, you can significantly improve the chances of successfully securing bail for someone in Ontario. The process may seem daunting, but careful planning and attention to detail are key to ensuring a favourable outcome.
Find the Right Criminal Defence Lawyer for You with JuriGo!
In Ontario, hiring a criminal defence lawyer is crucial for a successful bail outcome.
A lawyer can effectively advocate for the accused during the bail hearing, negotiate favourable conditions with the Crown, and help prepare a solid bail plan. If you are considering acting as a surety or assisting someone through the bail process, consulting a lawyer immediately is essential!
They will ensure all legal requirements are met and provide guidance on presenting a strong case for bail. Bail hearings involve several legal considerations, and having a criminal defence lawyer’s expertise increases the chances of a favourable decision, especially when the charges are serious or involve high risks.
With proper preparation, a criminal defence lawyer can significantly improve the chances of securing release!
JuriGo provides a simple, fast, and free solution for finding a criminal defence lawyer! Our service is confidential, free of charge, and requires no commitment.
Simply fill out our request form, detailing your situation, and we will promptly connect you with a criminal lawyer in your area. Get started on your defence quickly and easily with JuriGo!