Toronto Bail Lawyers
What to do if you need a lawyer for a bail hearing in Toronto
Getting arrested is usually one of the most surreal and stressful experiences of someone’s life. Being accused of a crime is a terrible feeling, and losing your freedom as you are handcuffed and taken into a police station leaves people feeling powerless and afraid.
Very shortly after an arrest, bail becomes a critical issue that has a pivotal impact on the rest of the case.
Having an experienced lawyer at a bail hearing is really important. A bail hearing is like a trial. Witnesses testify, they’re cross-examined, and arguments need to be made at the end of the hearing, with reference to case law. How well the surety performs on the witness stand is often the most important predictor of whether someone gets released at the end of a bail hearing. An accused person’s lawyer needs to put in the time preparing the surety to testify so that there is a comprehensive plan in place for what the surety will do after the accused is released, and ensuring the surety knows how to answer questions in a compelling way on the witness stand. Many bail hearings sink because the surety isn’t properly prepared for court, and is ambushed on the witness stand with unexpected information about the accused or the charge they are facing. Similarly, at the end of the hearing the lawyer needs to be prepared to weave the surety’s evidence into compelling legal arguments about why the accused should be released, and on what conditions.
A good lawyer can also help avoid the need for a bail hearing entirely. In many cases where an accused person is sent to a bail hearing, a lawyer can negotiate with the Crown Attorney and present the proposed bail plan in advance, seeking their consent to the accused person’s release.
It is not an exaggeration to say that having a good lawyer at a bail hearing often makes the difference between release and detention.
Our firm has a lot of experience conducting bail hearings across Ontario, for clients from all walks of life. We know how to carefully craft a release plan and to prepare sureties to testify in court.. Having a lawyer with a proven track record in Court is the most important thing you can do to help someone get bail. You need a lawyer who can persuasively present your plan for release and use the law and the facts to argue for you in court.
If you need a lawyer to help you or someone you know with a bail hearing, contact us using the form on this web page for a free consultation about the case.
What is bail?
Bail – technically called judicial interim release – refers to someone’s release from jail and police custody after an arrest and before their case goes to trial. Section 11(e) of the Charter of Rights and Freedoms guarantees everyone the right to a reasonable bail – and to not be denied bail without just cause. Similarly, section 503(1) of the Criminal Code states that a person who has been arrested must be taken before a Justice of the Peace for bail within 24 hours of their arrest, or otherwise as soon as possible.
However, just because there is a right to bail, and a right to a speedy bail hearing, doesn’t mean that everyone will be released pending trial. In fact, every day in Canada, there are often more people in jail who have been denied bail and are waiting for trial than there are people in jail actually serving sentences after a trial.
Many people who are arrested and charged with a crime can expect to have a bail hearing – where they will have to fight to be released from custody, and to avoid harsh and unreasonable restrictions on their liberty (like house arrest and curfews) even if they are released.
It often takes months or years for a case to go from arrest all the way to trial. If someone is denied bail, it means they will sit in a jail cell and wait all of that time for their day in court. The conditions in Ontario’s jails are difficult, and defending yourself against criminal charges from jail is hard. Being denied bail puts tremendous pressure on people to plead guilty, simply in the hopes that they will get out of custody faster.
All of this makes it really important for an accused person to have an experienced lawyer to run a well-prepared bail hearing for them.
What factors does the Court consider at a bail hearing?
Section 515 of the Criminal Code sets out the factors the court considers at a bail hearing when deciding if someone should be released. These factors are called the “primary,” “secondary,” and “tertiary” grounds. The primary grounds refer to whether the accused person comes to court as required. Essentially, the number one concern when someone is released on bail relates to the fear they will abscond and run away, fleeing the country or otherwise disappearing in order to avoid prosecution. Although people rarely flee or disappear in practice, at a bail hearing the court will look at the accused’s roots in the community and whether the accused has strong ties in another country (e.g. property, family). The court will also look at these types of factors for the surety.
The secondary ground refers to public safety, and is usually the most important factor at a bail hearing. The question here is whether the accused’s release presents a significant risk to public safety. An accused person who is accused of a crime of violence (e.g. a domestic assault, or a robbery) or a firearms offence can expect this factor to be especially prominent at the hearing. One of the most important factors here is the accused’s criminal record, especially for crimes of violence and past breaches of bail conditions. Where an accused person is charged with something really serious or has a bad record, the surety becomes more and more important. In those cases, the accused must present a plan of release to the court, backed up by a strong surety, that shows that the safety risk has been mitigated.
The tertiary ground is relatively rarely invoked – but it refers to public confidence in the administration of justice. Sometimes, even if someone can establish that the risk to public safety is low, and that the accused is unlikely to abscond, the court may still find that public confidence in the administration of justice would be undermined if someone is granted bail. As one example, the tertiary ground may be invoked in a case involving a murder charge, where the Crown has what looks to be an overwhelming case against the accused even at the bail stage. There, the court may find that public confidence in the administration of justice would be undermined if the accused was released.
What types of conditions can the court put on someone who is released on bail?
At the end of the day, a Justice of the Peace is empowered to impose any “reasonable conditions” on the accused that they believe are “desirable”. In practice, common conditions include:
- Non-communication orders with complainants or other witnesses
- Conditions requiring the accused to live at a specific address or with their surety
- Restrictions on addresses or geographic locations the accused is allowed to travel to
- Depositing a passport
- Remaining in the province of Ontario
- House arrest
Combined, these conditions can make an accused’s time on bail stressful and difficult. After living through Covid, we all understand now how difficult it is to be stuck at home for long periods of time. House arrest can make it difficult or impossible to lead a normal life, and can leave people feeling isolated, anxious, and depressed. Similarly, restrictions on areas that accused people are allowed to visit (e.g. public parks, schools, or swimming pools) can stop people from doing simple things like picking up their children from school, or walking the dog in a neighbourhood park.
Frequently asked questions about assault charges
Can you appeal a bail decision?
An accused person who is detained after their bail hearing can appeal the decision. This is called a bail review and is set out under section 520 of the Criminal Code. However, at a bail review, the court doesn’t simply let you argue the bail hearing again. At a bail review, the accused is required to show there has been a material change in circumstances since the initial bail hearing. Changes in circumstances could include finding a new potential surety, or developments in the case against the accused that significantly lower the Crown’s chances of securing a conviction. An accused person’s best chance at release usually comes at the initial bail hearing, but for those who are detained, it is worth hiring an experienced criminal lawyer to investigate whether a bail review can be brought.
Can you get your bail conditions changed?
Bail conditions are often onerous and difficult to live with. At the time of the initial bail hearing, accused people are often so interested in getting released from custody they may agree to unreasonable conditions that they later wish to have changed. There are several ways to change bail conditions, but the most common and cost effective is for an accused person’s lawyer to negotiate with the Crown. If the Crown will consent to a variation, a paper application can be filed with the court and a Justice of the Peace will likely sign off on it. Often, an effective way to have bail conditions changed is to seek concessions from the Crown to have them gradually relaxed over time. For example, an accused person released on strict house arrest may first seek a variation that adds exceptions to the house arrest (e.g. times when the accused person is let out of the house), eventually seeking to shift the house arrest to a curfew.
What if an accused person doesn’t have a surety?
Suretys are crucial to successful bail hearings. This can pose problems for accused people who don’t have a surety, or whose surety isn’t able to pledge a significant amount of money to the court. The reality is that there are lots of people in society who don’t have anyone in their lives who can come forward to court with the resources that are needed to be a good surety. The reliance on sureties in Ontario has had a disproportionately harmful impact on disadvantaged groups in society, like Indigenous and other racialized groups. If a surety can’t be found, one way to mitigate the harm this can cause to someone’s chances for bail is by applying for a bail program. Many courthouses in Ontario will have a bail program that is run by the John Howard or Elizabeth Frye Societies for those who do not have a surety. Under this program, a case worker is assigned to take the place of a surety and to offer some supervision of the accused while he or she is out on bail.
Contact us about your case
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