What is a Bail Hearing?
A bail hearing is a legal process used to decide whether an accused individual should be granted release from custody while awaiting trial or other legal proceedings.
The primary goal of a bail hearing is to evaluate the potential risks the accused may pose to public safety or the likelihood that they might fail to appear for future court hearings if released.
Understanding the bail process is essential for those seeking release under the appropriate conditions.
Factors Considered by the Court in Bail Hearings
A bail hearing involves a Justice of the Peace or a Judge, a Crown Attorney, and the defence lawyer representing the accused. The court evaluates evidence from both the prosecution and defence while considering various factors, such as:
- The defendant’s character and personal history
- The severity of the charges
- Any history of violent behaviour
- Financial stability and employment status
- Ability to post bail
- Details of the alleged offence
- Past criminal record and history of court appearances
- Family ties and length of residence in the community
- Likelihood of complying with release conditions
In most cases, the Crown must prove why bail should be denied. However, for serious violent crimes, the onus shifts to the accused, requiring them to demonstrate to the court why bail should be granted.
In Ontario, a surety is often required for bail releases. A surety is someone who agrees to supervise the accused and ensure they comply with all bail conditions and behave appropriately. This individual is responsible for monitoring the accused's actions and may also need to pledge a sum of money to the court, known as a surety bond, as a guarantee of their commitment. Surety releases are a common aspect of bail hearings in the province.
Having strong legal representation is essential during a bail hearing. An experienced defence lawyer from A. Dhillon Law can advocate for your release under favorable conditions by negotiating with the Crown or presenting persuasive evidence to the court.
Brief Overview for a Bail Hearing:
In Ontario, the bail hearing process follows the guidelines outlined in the Ontario Court of Justice Protocol. Here's a step-by-step overview:
- Arrest: After an arrest, the police detain the accused in custody, where they remain until their bail hearing.
- Prompt Bail Hearing: Under Ontario law, a bail hearing must occur within 24 hours of the arrest. These hearings typically take place in the Ontario Court of Justice.
- Presentation of Evidence: During the hearing, both the Crown prosecutor and the defence present evidence and make submissions. They may also propose conditions to mitigate any concerns.
- Judge’s Decision: Based on the presented evidence and legal arguments, the judge will decide whether to grant bail, with or without conditions, or order detention until the trial.
- Bail Review: If the decision is unsatisfactory, the accused can request a bail review at the Superior Court of Justice.
Understanding this process can help you navigate the Ontario bail system more confidently.
Possible Bail Conditions:
When granted bail, the release order often comes with specific conditions that must be followed. Common conditions include:
- No contact with the alleged victim or witnesses
- Adhere to house arrest or a curfew, unless written approval is obtained from a designated supervisor, such as a probation officer or surety
- Have a surety, someone who agrees to supervise the accused and may provide a place for them to reside
- Curfew
- Restrictions on certain locations or areas
- A prohibition on travel
- Regular reporting to a bail supervisor
- Wear electronic monitoring devices, like an ankle bracelet, to ensure compliance with bail conditions
- Refrain from owning or using devices with internet access
Failure to comply with these conditions can lead to arrest, detention, or additional criminal charges.
Denial of Bail in Canada: Understanding the Three Grounds
Under the Criminal Code of Canada, there are three primary reasons why an accused individual may be denied bail:
- Primary Ground – Ensuring Court Attendance: Bail may be denied if there is a risk that the accused will fail to appear in court when required.
- Secondary Ground – Protecting Public Safety: The court considers whether releasing the accused could endanger public safety, victims, or witnesses, including the risk of committing further offences or obstructing justice.
- Tertiary Ground – Upholding Confidence in the Justice System: Bail may also be denied to maintain public confidence in the justice system. Factors include the seriousness of the offence, the strength of the prosecution’s case, the potential sentence, and whether a firearm was involved.
Understanding these grounds can help you navigate the bail process and prepare for your hearing effectively. For expert guidance, consult a skilled defence lawyer.
Understanding the Burden of Proof in Bail Proceedings
In bail hearings, the responsibility, or "onus," to justify detention generally lies with the Crown prosecutor. The Crown must convince the court that there are valid reasons—referred to as "just cause"—to deny bail under one of the three grounds for detention: ensuring court attendance, protecting public safety, or maintaining confidence in the justice system.
However, in specific situations outlined in the Criminal Code, this burden shifts to the accused, a situation known as a “reverse onus.” In these cases, the accused must demonstrate to the court why they should be granted bail, effectively countering the presumption that detention is necessary.
When Does Reverse Onus Apply?
Reverse onus is triggered in cases involving particularly serious offences or concerns about public safety, including:
- Serious Offences: Charges such as murder, attempted murder, or aggravated assault
- Firearm-Related Crimes: Offences like sexual assault or robbery committed with a firearm, weapons trafficking, or unlawful possession of loaded firearms
- Repeat or Serious Re-Offending: Indictable offences committed while already on bail for another indictable offence or reoffending by failing to comply with previous bail conditions
- Non-Residents: Indictable offences involving individuals who are not ordinarily residents of Canada
- Criminal Organizations or Terrorism: Offences connected to organized crime or terrorism activities
- Violence Against Intimate Partners: Cases where the accused has a history of violence against an intimate partner
- Repeat Violent Offences: Serious offences involving violence and the use of a weapon where the accused has a prior conviction for a similar offence within the last five years
In all cases, a judge or justice of the peace ultimately decides whether bail is granted or denied. Consulting an experienced defence lawyer can help navigate these complex proceedings and increase the likelihood of a favorable outcome.
Our Comprehensive Approach to Bail Hearings
At our firm, we take a thorough and strategic approach to bail hearings, guiding you from preparation to presentation to maximize your chances of release. Our expertise includes:
- Providing clear and effective legal advice
- Crafting a strong and detailed release plan
- Presenting compelling evidence in court
- Proposing fair and practical bail conditions
- Utilizing relevant legal precedents to support your case
- Negotiating with the Crown for consent releases or less restrictive conditions
- Keeping you informed and involved throughout the entire process
With our dedicated team by your side, you can feel confident navigating the bail hearing process.
