This post is intended to assist those trying to understand bail court, how to bail a person out, and what the obligations of a surety are in doing so. These procedures relate only to the bail process under the Criminal Code of Canada, and more specifically focused towards bails in Ontario including Toronto, Newmarket, Scarborough, and the Greater Toronto Region.
The bail hearing can be the most important day in criminal court.
For almost every person who is detained (not released by the police) upon their arrest, the bail hearing is their most important day in court. Although we are all constitutionally guaranteed reasonable bail under our constitution, it does not mean that an accused will be released automatically. If a person is denied bail, then they will either have to await their trial in custody (which will likely be months away), or they will need to apply for a review (appeal) of the bail decision to the Superior Court.
Since no one wants to remain in custody, and a bail review can be very expensive and takes time to prepare, neither of these options are preferable and must be avoided if possible. Therefore, the best way to approach the bail hearing is with the assistance of experienced legal counsel. Criminal lawyers are often available 24 hours a day in these emergencies and you can call one (including myself) to arrange a bail hearing for the next day.
A surety is required in most cases when a person seeks bail.
To be granted bail, a person is typically released in the care and responsibility of a surety who pledges a certain amount of money for their release. The surety can stand to lost this amount if the person breaches any of the court’s “conditions of release” or “recognizance” while they are on bail. Sureties are very important and will often be the deciding factor on whether or not a person is released.
The surety checklist:
- No criminal record;
- Over the age of 21;
- An ability to supervise the accused to a degree required by the Court;
- An amount of money in savings or equity they can pledge to the Court as security of their promise;
- A capacity to understand and enforce the conditions the Court imposes;
- An ability to attend court on the day of the bail hearing in a punctual manner;
Keep in mind that none of the factors above are determinative of whether or not a person can be a surety, but assist the court and lawyer in ensuring that the plan of release is a responsible one. Once you have your sureties, you need to decide whether or not you wish to retain private counsel or use Legal Aid lawyers (duty counsel) for your bail hearing.
The advantage of using duty counsel lawyers is that they are provided to you at no cost. However, duty counsel are often very busy and may not be able to cater to your needs as specifically as a privately retained counsel. The cost of a bail hearing ranges depending on the charges, the lawyer you retain, etc.
If someone needs bail, the most prudent course of action is to:
1. Retain experienced legal counsel immediatley: Only a lawyer is permitted under Canadian law to conduct a bail hearing. This means that law students, paralegals, are prohibited. Only a lawyer, licenced by the Law Society of Upper Canada (or the appropriate province) is permitted in law to appear on bail hearings. The fee of a lawyer will range but they money is well spent when one considers the ramifications of an accused not being released.
2. Ensure that everyone who is intending to act as a surety is present for the date of the bail hearing. This means that everyone should be there early so as to provide the lawyer with adequate time to prepare the sureties, review the proposed plan of release, and speak to the Crown Attorney to see if there is any possibility of releasing the accused on consent. The bail hearing will usually take the whole day so you should ask for the entire day off work.
3. Dress appropriately. This is a formal process and the way a surety appears in Court will convey their level of respect for the system, and therefore their respect for the order that they are being asked to enforce.
4. Be prepared to speak about the proposed plan of release. Sureties who have coordinated their proposed plan in advance are much more likely to have the accused released to them. If you have discussed these issues in advance among the other sureties, and determined all of the areas where certain individuals will be responsible for the supervision, it will come across well in the witness stand.
5. Bring any documentation with you that will assist in proving the assets that you are pledging to have the accused released. For example, if the bail is $5000.00, you need to prove that that money exist somewhere in your savings, equity in home, RRSPs, etc. Any reasonable documentation is adequate and often take the form of bank balances, deeds to homes, and so on.
6. Be prepared to come back on another day. It is sommon that bail hearings are adjourned and the accused and sureties may need to return another day.