For almost every person who is held in custody upon their arrest, the bail hearing is their most important day in court. If a person is denied bail, they will be held in custody pending an appeal of that decision or until the case is disposed of by way of trial or guilty plea.
Since trials can take many months to reach, and often exceeding the maximum sentence one could reasonably expect, it is vital that an individual who is arrested and held for a bail hearing does everything in their power to ensure they are released. This includes understanding the processes involved, and retaining an experienced criminal lawyer to assist them in their hearing. Fortunately, most criminal lawyers including the lawyers at Robichaud’s are available 24 hours a day for emergencies just like this.
Please understand that the information provided herein is very general and ought not to be relied upon in lieu of legal counsel. Entire text books have been written on the area of bail in Canada alone. The information below simply provides an overview of the procedures involved in bail hearings.
Bail Hearings Under the Criminal Code of Canada: Section 515 of the Criminal Code
Most of the procedures addressing bail hearings is covered by section 515 and its subsections under the Criminal Code of Canada. When the court considers a person’s eligibility for release into the community on bail, a number of factors are considered. Before an assessment is made, the Court must determine who carries the burden of persuasion. Typically the prosecutor will have to “show cause” why a person must be held in custody pending their trial; however, there are occasions where the onus is reversed and the accused must show why his or her release is justified. Once this is established, there are a number of factors set out in large part by section 515(10) of the Criminal Code and are known colloquially as the “primary”, “secondary” and “tertiary” grounds.
The Primary Grounds
Section 515(10)(a) provides that a person’s detention may be justified “where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.” To put it simply, the primary ground is in place to ensure that a person comes to court and doesn’t flee the jurisdiction. Factors that may be assessed on this ground include, but are not limited to:
Whether the person has ties to the jurisdiction;
If the person has a history of failing to appear in court;
If the person has the means, or has expressed a willingness or intention to flee the jurisdiction indefinitely;
In order to mitigate any concerns, an experienced criminal lawyer will lead evidence to demonstrate that there is no risk or that it is very remote. That may include demonstrating the accused’s ties to the community, a strong supervisory plan that ensures he attends court, depositing of passports, or frequent reporting requirements.
The Secondary Grounds
Section 515(10)(b) provides that a person’s detention may be justified “where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.” To put it simply, the secondary ground is concerned with risk assessment and trying to predict whether there is a “substantial likelihood” that a person will commit further criminal acts if released or will tamper with witnesses or evidence. Factors that may be assessed on this ground include, but are not limited to:
A person’s previous criminal record;
Previous acts that bear similarity or connection to the offence at hand;
A history of failing to comply with Recognizances of Bail;
Specific threats made to witnesses or alleged victims;
Substance abuse issues that may increase the chance for relapse and further criminal acts;
In order to convince the Court that there is not a substantial likelihood of reoffending, a lawyer may attempt to lead evidence of a plan of release that addresses any concerns of the Court, propose treatment plans for substance abuse, or distinguish any criminal record form the present allegations. The secondary ground is the most commonly sought means of justifying a detention order by prosecutors and counsel will typically have to approach each situation in a well thought out and tailored approach to the particular accused. Having a strong plan of release with responsible sureties is by far the most persuasive factor for a lawyer to present to the Court for the secondary ground.
The Tertiary Grounds
The tertiary ground is supposed to be used sparingly and only in cases where an accused person’s detention is necessary in order to maintain confidence in the administration of justice. Therefore, there may be situations where a person has strong ties to the community, has no criminal antecedents, yet the crime is so horrendous and inexplicable that it would shock the conscious of the community to release the person back into the community. The tertiary ground is relied upon most often in high profile cases and particularly so in homicides. The factors assessed in the tertiary ground include, but are not limited to:
The strength of the prosecution’s case;
The gravity of the offence;
The circumstances surrounding the commission of the offence, and whether a firearm was used; and,
If there is a potential for a lengthy term of imprisonment, and if a firearm was used, if the sentence would be three years or more.
Cases that involve the tertiary ground are very serious and will undoubtedly require the assistance of an experienced criminal defence lawyer to assist a person with the complexities involved.
Acting as a Surety for a Person’s Bail Hearing
When a person is granted bail, they are typically released to the care and responsibility of a surety who pledges a certain amount of money or security. The surety can stand to lost this amount if the person breaches any of the court’s conditions of release 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 requirements of a suitable surety are generally as follows:
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; and,
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.