In Ontario, a bail hearing is a legal proceeding after someone has been arrested and charged with a criminal offence. A bail hearing allows a judge to determine whether the accused can be released from custody and return to the community pending the resolution of their case or whether they must remain in detention until their trial.
The Canadian Charter of Rights and Freedoms provides that an individual will not be held in jail while awaiting trial or case resolution without just cause. During a bail hearing, the Court will balance the individual’s right to liberty with the need to uphold public safety and ensure the accused will attend court proceedings. The defence and the prosecution can argue before a bail decision is made.
A bail hearing allows both the defence and the Crown prosecutor to present arguments regarding whether the accused should be released on bail or remain in detention until their case is determined in court.
Under Canada’s Criminal Code, an accused has the right to a bail hearing within 24 hours of arrest. However, if a judge is unavailable, a hearing will occur as soon as possible. The accused can speak with their criminal defence lawyers or duty counsel before the bail hearing.
The Crown will first present the criminal allegations against the accused and their criminal record, if one exists. Often, this information is based on a summary provided by the arresting police officer(s). This summary can be read into the record and introduced as evidence. The Crown may also call the investigating officer to testify why bail should be denied.
After the Crown has presented its arguments opposing the accused’s bail, the accused or their defence lawyer will have the opportunity to provide evidence to contradict the Crown’s allegations and make arguments in favour of the accused’s release. Evidence to support the defence’s arguments may involve presenting information of the accused’s:
- good character;
- education and employment;
- living arrangements;
- plan for addressing any offence-related drug and/or alcohol issues; and
- plan for attending future court appearances.
While a defence lawyer may ask the accused to testify at the bail hearing regarding the above-listed considerations, the accused is not required to provide testimony, and the Crown cannot cross-examine the accused regarding the criminal charges in question. The accused’s lawyer may also ask the accused’s surety to testify at the bail hearing concerning their plan and ability to supervise the accused when they are released on bail conditions.
Bail hearings may be conducted by either a Justice of the Peace or a Judge. After hearing the parties’ arguments and considering any relevant case law and evidence, the court will decide on bail. Ultimately, a judicial interim release order may be issued, or the accused may be required to remain in jail until their matter is resolved.
If bail is denied, the accused will be allowed to appeal the ruling through a bail review to a higher court.
In Ontario, there are three outcomes at a bail hearing. These outcomes directly relate to the grounds on which a person may be held in jail before they have been found guilty of committing a crime. A bail hearing may, and criteria may vary depending on the specific circumstances of the case and the individual’s criminal history. It is recommended to consult with a lawyer who is experienced in the area of criminal law to navigate the bail hearing process effectively.
Bail may be granted on a cash amount or with a surety. If a court denies bail or bail cannot be met, the accused will remain in custody until their trial.
Of primary concern is for a court to ensure that the accused will attend all of their upcoming court appearances. A judge may decide to release the accused without any conditions if they are satisfied that they can be trusted to attend all future court appearances without concern. Before deciding whether this is the appropriate option for an accused, a court will consider several factors, including the accused’s:
- criminal history, if applicable;
- general behaviour and conduct;
- prior character; and
- community connection.
Alternatively, the judge must consider whether releasing the accused would affect public safety. If a judge finds that the accused would not threaten public safety, the accused may be released with conditions. Before making this decision, a court will consider the accused’s character, criminal history, current charges and other relevant factors. The conditions imposed on a release can vary depending on the accused and the circumstances of the charges. For example, a judge may require the accused to:
- report to a bail supervisor,
- adhere to a specific curfew, or
- avoid contact with a particular person or location.
Finally, the judge may determine that, to maintain the public’s confidence in the administration of justice, it is best to deny bail and maintain the detention of the accused until their matter is heard at trial. Denying bail involves the judge finding any “just cause” to show why the accused should remain in jail until their case is decided. In cases of violence or extreme circumstances, ongoing detention is generally permitted based on several considerations, including:
- the circumstances of the charges and alleged crime;
- the evidence against the accused; and
- the potential sentence that may be imposed if the accused is found guilty and is convicted of the crime.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Skilled Representation in Impaired Driving Cases
The experienced criminal defence lawyers at Barrison Law in Oshawa represent clients throughout Durham Region who have been charged with a criminal offence. From bail hearings to trial, our trusted lawyers ensure that clients’ rights are protected and they are positioned for the best possible outcome with respect to a variety of charges, including impaired driving offences, drugs and/or alcohol charges, and murder. To speak with one of our criminal lawyers regarding your bail hearing, contact us online or call us at 905-404-1947.