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Bail Hearings and Appeals: What to Expect
Lay Person's Guide to the Criminal Prosecution ProcessIf you are, about to be or have been charged, you should talk to a lawyer immediately.
These pages are general information only, not legal advice.
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If you are not released after your arrest, you are entitled to a bail hearing within 24 hours of your arrest and dentention.
You are constitutionally guaranteed reasonable bail. This does not mean that every person will be released.
A Justice of the Peace decides whether or not you will be released or held in jail until your trial.
Last year on Christmas day, a London Ontario JP denied bail to 25 out of 28 cases brought before her. That is just wrong.
At the bail hearing the crown must show why you should be detained in custody, but more and more often, the accused person must show why s/he should be released.
Be prepared at your bail hearing to show a plan for release.
A full release plan includes, among other things,
A place where you will reside or live.
- One or more sureties
- Counseling where appropriate.
The presumption of innocence does not seem to apply in bail hearings. The courts are now also in the business of prescribing medical treatment without a licence (imposing counselling, anger management courses etc) regardless ot whether it is justified or needed. It is politically correct, so it is done.
The factors to be considered at a bail hearing are:
All of the above factors are based on opinions, not evidence, formed by the Crown and by the Court. Many courts, improperly, work from the premise that the accused should be denied bail unless they can "prove" that they are good candidates for bail.
- Whether the accused is likely to flee or attend court
- Will the accused comply with conditions imposed by the court
- Whether the accused person is likely to reoffend
- The strength of the case against the accused.
If Bail is Denied
Bail Denied. Your rights are being violated
Jail conditions can be brutal.
Denial of bail is devastating, resulting in your being held in jail for months, or even years, awaiting trial.
Because pre-trial dentention can often exceed the sentence imposed if you are found guilty at trial, many innocent people plead guilty just to get out of jail with "time served." That is not justice. It is expediency at its worst.
"Two for one" credit is supposed to compensate for dead time in jail pending trial. It is likely to be prohibited in pending legislation.
The Bail Review Application
Ordered detained? Although denial of bail is devastating, it does not mean that you are out of options. You can seek to appeal the detention order at a superior court. This process is for adults and can take some time during which you will be held in jail.
If the accused is a young person under the Youth Criminal Justice Act, then s/he can have a "Bail De Nova". This means that a Judge of the Youth Court will hold a new bail hearing.
If the young person is still detained, after the bail de novo, then s/he can bring an application for bail review to the next higher court. Transcripts of earlier hearings are required. which can be slow and costly. A substantial change in circumstances of the accused, an error in law by the lower court, or the expiry of a mandatory review period, is required for any bail review.
Courts deny bail more often than they grant it. The media and the public clamour against bail is a growing factor in denying bail to many people who should be released. The courts are afraid of being blamed for releasing someone who might go on a rampage the next day, so people who should be released, are jailed pending trial.
A surety is a person who will act as a supervisor and ensure that the accused person attends court, does not breach the conditions of release and does not re-offend.
A surety cannot have a criminal record, must be over 18 years old, be able to supervise the accused on a day to day basis, understand the conditions the court might impose on you, and arrive at court on time.
You should have one or more sureties in court at your bail hearing.
Normally, if you are going to be released, you will be released into the care of your surety
The surety might have to pledge a certain amount of money (post bail) to ensure you will abide by the conditions which are imposed on you. Usually the surety need only demonstrate that he/she has the money and does not have to pay or deposit the actual cash funds into court. The amounts range from $550.00 to $5,000.00, but can vary greatly and go much higher.
Breach of Bail Conditions:
If the accused breaches a condition of bail and the surety knows, but does not inform the police, or if the surety fails to supervise the accused in terms of court attendances and maintaining the bail conditions, then the crown may make application to the court to obtain the money posted for bail.
Funds do not automatically default to the crown. The crown must show that the surety knew of a breach of the bail terms and did not report it, or did not properly supervise .
||Terms of Release |
An accused person will usually agree to virtually anything in order to get out on bail. Asking that a certain bail condition not be imposed, may mean denial of bail.
It is important to request terms of release that you can live with. Your lawyer should handle this.
Upon release, the accused realizes that complying with all the terms of release may be impossible. A curfew may for example, for a shift worker may cost him or her their job. You can seek to vary bail conditions.
Varying Bail Conditions
Changing your bail conditions can be very slow and very expensive.
Once the conditions of the bail are imposed by a Justice of the Peace the crown must consent to the bail conditions being varied, as must the surety. If the crown will not consent to the variation of bail conditions, then the only alternative is to bring an application for bail variation in the Superior Court.
Bail conditions are not supposed to be a punishment but in reality it can be just that. Punishment without trial.
Bail is still, infinitely better than jail.
Understand this: Police records and files on you will never be erased. Records of every contact with you, every complaint by a neighbour,
arrest, charge, acquittal, stay, discharge, diversion and conviction are kept permanently by the police regardless of the outcome.