Bail

GENERALLY

When arrested and charged with a criminal offence, an accused person is either held in custody or released on bail pending completion of the matter. In the end, most people are released from custody to await the outcome of their case. Such a release often comes with various conditions that must be followed by the released individual as the wheels of justice grind to a conclusion. There are a number of different types of bail releases, each with their own unique features and processes leading up to the moment of freedom for the accused post-charge. Types of bail releases include a promise to appear (without additional conditions), a summons (without additional conditions), an undertaking (with conditions), or a recognizance (with conditions and with or without deposits). 

Under the constitution, a person has a right to reasonable bail. However, there are limits to this right and sometimes people who are arrested are denied bail. Broadly speaking, this can only occur when 1) doing so is necessary to ensure the accused attends court as required, 2) it is necessary to protect witnesses or the public, or 3) such is necessary to maintain the public's confidence in the justice system. While the majority of people are given some form of bail, on any given day hundreds of people in the Toronto area, and thousands of people across Canada, are jailed in pre-trial remand centres awaiting trial because they failed to qualify for bail as a result of their falling into one or more of the three noted enumerated exceptions. 

Even when granted a form of release, a 'reasonable bail' often has conditions attached to it that restrict, at least to some extent, the accused's liberty until the charges are dealt with by the courts. The idea behind the imposition of conditions is to protect the public while sparing the 'presumed innocent' accused from sitting in custody, sometimes for years, prior to getting his or her day in court. The conditions imposed in an attempt to balance these competing considerations can range from a curfew, to boundary restrictions, to house arrest. 'No contact' with co-accused or witnesses are also common conditions, as are conditions restricting consumption of alcohol and drugs, conditions restricting travel, and conditions requiring the accused report to police at regular intervals. Ultimately, the nature of the conditions imposed will typically depend on the circumstances of the accused and the case itself. There is no defined limit on what types of conditions can be imposed other than those conditions must be reasonable in light of all of the facts.

Sometimes when people are arrested, they are released by the police at the scene of the alleged crime or from the police station after being arrested and processed. These types of releases are usually in the form of a Promise to Appear, Summons, or Undertaking to an Officer-In-Charge. In those scenarios, obtaining bail itself is usually not difficult or complicated. It is often a very different story where an accused is arrested, held by the police, and brought to court for a bail hearing. At this stage of the game, at the very least, the police have typically determined the accused is too much of a flight risk or too likely to commit further offences to be safely released without being brought to court. When this occurs, the accused must then go through the bail hearing process in a courtroom presided over by a Justice.

THE HEARING

Sometimes called a "show cause hearing", a bail hearing is a mini-"trial" held to determine if an accused should be released pending the outcome of his case. It is not a trial of the case and the court does not decide innocence or guilt at this stage. The issue is whether or not the accused should be granted bail. The basic legal presumption in most cases is that the accused should be released.

Bail hearings can last minutes or days depending on the complexity of the issues presented by the specific case. Sometimes the prosecutor agrees to the accused's release once informed of the plan of release and having considered the evidence and information available about the accused. Those hearings are usually quick and simple. While the presiding Justice always has the final say about release and the conditions imposed, when both the prosecution and defence agree the substance of that agreement is usually endorsed by the court and made a reality. Where the prosecutor does not agree to the release the accused, a contested hearing will occur with each side advocating their position and trying to persuade the presiding Justice to either detain the accused in custody until trial or to release the accused on an appropriate bail. Occasionally, the issues in contested bail hearings do not relate to whether the accused actually gets bail, but to what the conditions will be, and how strict the plan will be, when the accused is released.

In a typical bail hearing, the prosecutor will inform the presiding Justice about what charges the accused faces and what the police believe happened. The criminal record, if any, of the accused will often be produced to the court along with any other relevant background information about him or her. The focus often then shifts to the accused's plan of release and whether that plan (which can range from being simple to elaborate) can effectively manage the accused pending the completion of the case. 

The circumstances of the case and background of the accused always play a central role in the court's determination of whether an accused is releasable and what type of supervision is necessary to ensure that the accused attends court, that the accused obeys the law, and maintains the public's confidence in the effectiveness of the justice system.

Having heard about the investigation, the plan of release, and the positions of the parties, the presiding Justice will then apply the law and make a decision about whether an accused can reasonably be released on bail and what conditions he or she must abide by until the case finishes.

SURETIES

Many proposed bail plans (and ultimately bail orders) made in court involve a surety. A surety can be thought of as a 'civilian jailer.' A surety's job is to pledge an amount of money in exchange for the accused's release on bail and to supervise the accused while on bail. The supervision involves ensuring the accused complies with his bail conditions and attends court as required. If the accused breaches his conditions or fails to attend court, the surety can lose the money he or she pledged. The idea behind a pledge of funds is that the surety will be motivated to supervise the accused due to the potential loss of the money should the accused breach his or her conditions. If the surety felt that the accused was not abiding by the conditions of his bail, the surety's recourse is to revoke the bail and have a warrant issued for the arrest of the accused. The surety actually needs no specific reason to revoke the bail and it is the surety who makes that decision, not the accused. If the accused is otherwise caught violating his bail conditions, the surety could face an attempt by the government to take away the amount of money the surety had pledged as a result of the surety's failure to control the bailed person. This usually involves a different type of hearing, called an 'estreatment hearing' which is beyond the scope of this work. 

Who can be a surety? While there are no absolute rules setting out who is or is not qualified, the courts have developed guidelines that will assist a Justice in determining whether a surety is suitable. Typically, a surety should

• be a responsible adult; 
• not have a criminal record or outstanding charges;
• have assets that can be proven with documentation; 
• not be acting as surety for anyone else;
• not be the alleged victim or a witness of the charged crime;
• have a prior relationship with and knowledge of the accused; 
• be prepared to call the police and report the accused for any failure to follow bail conditions; and 
• have the time and realistic ability to supervise the accused.

Sureties are often the family members, employers and friends of an accused person. The number of sureties required will vary depending on the case. A bail can be for $10,000 and have one surety sign for the whole amount or two sureties sign for $5000 each. Sometimes it's better to have more than one surety so multiple people can be involved in the supervision of the accused, especially if the level of supervision required by the court is extensive or complex.

A surety who pledges an amount of money without deposit needs to prove they have the money somewhere. This can be done with a bank statement, RRSP statement, deed and mortgage documents or any other documents proving an asset. Cars and other personal property are not usually considered acceptable assets for the purposes of bail in the Toronto courts. When coming to court for a bail hearing, a potential surety should bring this documentation with him to show to the court upon request, or at least be prepared to testify under oath and give accurate details of their financial situation.

Being a surety is a major responsibility. Before agreeing to take on this role, a potential surety should think through the realities of being a 'civilian jailer.' Cases can take years to get to court and finish. The requirement of close supervision can interfere with a surety's freedom almost as much as that of an accused person. Being on bail can be stressful for all involved, especially where the conditions imposed on an accused are strict. There are heavy potential financial consequences if the accused breaches and the surety was not fulfilling his or her role as strict supervisor. In some cases, the conditions imposed will include a change of residence. The court might want the accused to live with the surety for the purposes of supervision because an accused living with his surety will allow the level of supervision to be greater. If you are considering being a surety, think about the level of responsibility and commitment that will be involved. Doing so will only lead to your being better prepared to help present the plan of release to the court should you decide to propose yourself as a surety. If you are not prepared or able to commit to the serious obligation of being a surety, then you should not propose yourself as one. Taking on such a heavy responsibility when unable to realistically do the job is a recipe for disaster. 

Sureties should be prepared to testify at the bail hearing. The Justice who will be making decisions about whether release is appropriate and if so, under what conditions, will often need to hear it directly from the surety. The prosecutor may have questions of the surety as well to probe how effective a plan is being proposed. If you are a potential surety and get cross-examined by the Crown Attorney, try to remember it is an adversarial system. Do not take it personally. This can be a very unpleasant experience but, properly prepared, a surety should generally know what kinds of questions to expect from a prosecutor.

WHAT A LAWYER ADDS

Experienced criminal lawyers know the law and the process involved in a bail hearing. In an increasingly complex legal system, navigating the twists and turns that can arise in even a simple bail hearing can be a challenge. The lawyer will evaluate the evidence and information he or she has about the accused and will develop the best plan of release possible. The lawyer will work with the accused and sureties to ensure they are ready for the hearing so as to present a persuasive argument for release in court. The law and defence strategy at the bail hearing can discussed with the surety or sureties to allow for a comprehensive and ultimately successful proposed bail plan. Sometimes, difficult tactical decisions need to be made in how to approach a bail hearing and an experienced criminal lawyer will be able to do so in an efficient and effective way that gives the accused the best chance at a reasonable bail.

The bail courts in Toronto and the GTA are very crowded and overworked. There are often delays in reaching bail hearings. Lawyers help the bail process run smoothly without unwarranted delays. Sometimes, a bail hearing can be reached and dealt with quickly if the prosecutor is persuaded to agree to the release of the accused. One of the many ways a criminal lawyer can help you is to get the hearing prepared, heard and effectively conducted as soon as possible.

POST HEARING - Variations and Breaches

Once a person is released on conditions, whether the release was from the police station or court, they are generally required to abide by those conditions until the case is over. That said, conditions can be changed later on if there is a good reason for the change. Changes take place with either with the consent of the Crown Attorney or in a contested hearing in a higher level of court. The criminal lawyer you hire will know the process of attempting a bail change for you if such becomes necessary.

Regardless of the form of release, bails are serious business. It is a crime to fail to follow the conditions imposed by any type of bail order. Being charged with violating a term of one's bail often leads to that prior bail being cancelled and pre-trial detention. Those lucky enough to be released again after being arrested for a breach of bail conditions usually have much harsher conditions imposed for all charges being faced. If convicted of the offence of Fail to Comply (which is a distinct offence completely separate from the original set of charges faced), a jail sentence as punishment is always a very real possibility. A retained criminal lawyer can always answer questions about an accused's bail conditions to ensure complete understanding of what is required and avoid the severe possible consequences of an 'unintentional breach.'