Bail Hearings

The Ontario Bail System

Written on behalf of Affleck & Barrison LLP
judicial interim release

Bail, also known as “recognizance” or “judicial interim release”, is the temporary release of an accused individual while awaiting a criminal trial. The police have the discretion for most criminal offences to release the accused with or without conditions.

Some individuals who are charged at the scene of an offence will be released back into the community and will be given an appearance notice, a promise to appear or a police undertaking.

An appearance notice (Form 9) is often provided by the police at the scene of the offence and sets out the date for a court appearance and often provides a date and location for the individual to attend for finger printing.

A promise to appear (Form 10) is also given at the scene of the offence and without requiring the individual charged with an offence to attend the police station. This form outlines what offences the accused has been charged with and provides a court date. If you have been given a promise to appear, you will not be held in custody awaiting a bail hearing. You are required to sign a promise to appear and make a promise to attend the dates listed on the document. If you do not sign the form and make the promises, the police will not release you.

An accused may be given a police undertaking along with a promise to appear. The police undertaking includes conditions for release into the community. This may include restrictions on the accused’s ability to make contact with certain individuals, attend certain locations, possess weapons or consume drugs.

If a person accused of a crime is taken into custody and held in jail until they appear in court, a bail hearing must be held within twenty-four hours or “as soon as possible”, if a justice is not available.

Release Following a Bail Hearing

If the Crown prosecutor and the accused’s defence lawyer can agree to conditions for the accused to be released on bail, the accused will still need to appear in court and a justice will confirm that all parties have agreed to the conditions and the next court date will be set.

If conditions cannot be agreed upon between the two parties, a “show cause” bail hearing will take place where a Judge will decide whether the accused can return to the community while awaiting the criminal court case. If bail is denied, the accused will be kept in custody until the trial.

The Crown prosecutor must “show cause” as to why the accused should not be released from custody. The Crown will summarize the nature of the offence, the evidence against the accused and the factors that will assist the court in making a decision. The court will take into account the need to ensure the safety of victims or witnesses, the seriousness of the charge and whether the crime involves violence.

A justice of the peace or a judge will decide whether the accused can be released back into the community while awaiting trial after considering the following grounds to deny bail:

  • Whether the accused is a flight risk who will not attend all required court appearances;
  • Whether the accused poses a risk to public safety;
  • Whether public confidence in the administration of justice would be undermined by releasing the accused into the community.

The following factors are also taken into consideration when deciding on whether to grant the accused bail:

  • The seriousness of the crime;
  • The surrounding circumstances of the offence and the offender;
  • The complainant’s fear and safety concerns;
  • The accused’s criminal record;
  • Whether the accused has any criminal convictions for breaching court orders;
  • The accused potential culpability;
  • The likelihood that the accused will commit a further offence if released;
  • The involvement of firearms;
  • The lack of a surety;
  • Any mental health issues or addiction issues;
  • The likelihood of a lengthy sentence;
  • The strength of the Crown prosecutor’s case; and
  • The age and personal life situation of the accused.

A Surety to Supervise the Accused while Released may be Required

At a bail hearing, an accused’s lawyer will try to convince the court that if the accused is released on bail they will obey their bail conditions, either on their own recognizance or with the assistance of a surety to supervise them. It is very common in Ontario for bail hearings to involve a surety as a supervisor for the accused

A surety is an individual who has been authorized by the court to take responsibility for the accused individual while they are released back in the community and awaits trial. A surety must ensure that the accused complies with all terms and conditions given upon their release by the court.

A surety is often required to ensure the accused is home before their curfew, attends court appearances and generally stays out of trouble and abides by all the conditions required by the court. An accused individual may also be ordered to reside with the surety, and in some cases the accused may not be permitted to leave the surety’s home unless in their company.

A surety may also be required to pledge a certain sum of money as an assurance that they will fulfill their duties to the court. This amount is usually determined by weighing the surety’s assets against the strength and seriousness of the accused’s criminal charges. If the accused violates their bail, the surety may be sued by the Crown for the amount of money they pledged.

An individual who is proposing to be a surety must meet the following conditions:

  • Must be over 21 years of age;
  • Must not have a criminal record;
  • Must be punctual when attending the bail hearing;
  • Must be capable of overseeing the accused as required by the court;
  • Must have money in equity or savings that can be pledged to the court; and
  • Must be able to understand and implement the conditions set forth by the court.

Tips for Preparing for a Bail Hearing

  1. Retain experienced criminal defence legal counsel immediately.
  2. Select an appropriate individual as your surety.
  3. Ensure the proposed surety is present on the date of the bail hearing.
  4. Dress appropriately and ensure your surety is also dressed in appropriate attire.
  5. Be prepared to address any questions regarding the proposed plan of release.
  6. Be sure to have any documentation that will assist in proving what assets you have.
  7. Be prepared to return to court on another date.

Contact Affleck & Barrison LLP in Oshawa for Skilled Criminal Defence Representation in Bail Hearings

If you or a loved one have been arrested and are facing a bail hearing, it is important to have experienced criminal defence counsel to represent and advocate on your behalf. Time is of the essence and it’s important to understand your options. The lawyers at Affleck & Barrison LLP have many years of experience representing clients at bail hearings and will work tirelessly to ensure their clients receive exceptional legal representation. Contact our office online or at 905-404-1947 to speak with a knowledgeable criminal defence lawyer if you are facing a bail hearing.