Bail, also commonly known as “Judicial Interim Release” refers to the temporary release of a person, often with specific conditions, who has been charged criminally for the period of time while their charges are processed and progress through the Court system. Bail occurs in a process outlined in the Criminal Code, and may require the arranging of a specific bail plan to assist the court in finding that a release is justified.
In the majority of cases, an individual who is charged criminally will be released without the need for a bail hearing. However, if the charges or circumstances of the offence are sufficiently serious, or if there is the existence of a prior criminal record, a bail hearing may be required in order for an individual to be released.
A bail hearing is conducted by a Judge or a Justice of the Peace, and will consist of both a prosecutor and the defence stating their respective cases against or in support of release.
The continued detention of an individual is only justified when one or more of the factors in section 515(10) of the Criminal Code is met; that detention is necessary in order to ensure an accused’s attendance in court, that there is a substantial likelihood that the accused will reoffend if released therefore making detention necessary to protect the public, or if detention is necessary to maintain public confidence in the administration of justice.
Sureties
In crafting a bail plan, it may be necessary to use a surety. A surety is someone who pledges a monetary promise to the court in order to secure the release of an accused on bail. Once the accused is released, it is the responsibility of the surety to oversee that they are abiding by their bail terms.
A surety may be residential, in that the accused will need to live with them while on bail, but this may not be required in every case. The monetary sum that is pledged by a surety is not automatically collected by the court, but rather operates as a promise; if the accused does not breach their bail conditions, the monetary sum will not be collected. If a breach occurs, the Crown may proceed to collect the promised amount. This is designed to ensure that a surety is motivated to remain accountable to the court.
In assessing the viability of a surety, the court will be looking for someone who appears trustworthy and has a positive record in the community. The main reason for this is because a surety is required to call the police if they believe that the person on bail is violating the terms of their release. The court must be satisfied that the surety is comfortable making this decision. A surety can also revoke their assistance at any time and for any reason, if they no longer feel able to perform the role. In this case, the individual on bail will most often need to return to custody while a new bail plan is formulated.
Bail plans
Bail plans often include conditions imposed on the individual that they must follow for the entire duration of their bail. While there are some conditions that are commonly imposed, such as refraining from communicating with specific persons and not attending specific areas, conditions can vary depending on the circumstances of the alleged offence, and on the individual themselves.
A criminal defence lawyer works to ensure that the fewest restraints are placed on the individual’s liberties, and will often advocate for exceptions that include work and other personal obligations, even on the strictest bail plans.
Out on bail
If you are successful in obtaining bail, it is necessary to follow exactly the conditions that have been imposed by the decision maker. Bail compliance checks can be conducted by police, and those who are found to be breaching their conditions will generally be arrested and may face additional criminal charges. It may become more difficult to be released on bail again if this occurs, and may require a stricter bail plan.
If you feel that your conditions are too strict, the best course of action is to discuss this with your criminal defence lawyer, who may be able to assist you in negotiating a change of release conditions with the Crown Prosecutor, rather than choosing to not abide by them and risking a return to custody.
Experience is critical
Hiring an experienced criminal defence lawyer can help tremendously with bail. A criminal defence lawyer will be able to contact the police and the Crown Attorney for the purpose of discussing and negotiating release, potentially avoiding an adversarial bail hearing and proposing a joint position to the Judicial Official. If this is impossible, having the representation of a criminal defence lawyer at a contested bail hearing can tremendously increase the overall chances of success at this very important step in the criminal process.
The lawyers at Collett Read are highly experienced at conducting bail hearings and will work with you and your sureties to formulate the best bail plan, so that you can live a normal life until your matter is concluded, as much as possible. We understand how stressful this process can be, and approach our clients and their families with sensitivity and insight to ensure that you are well prepared for the nuances and stresses of a bail hearing.