Bail Hearings

Hiring a Lawyer to Handle Your Bail Hearing

Although a bail hearing is only one of many stages in our criminal justice system, it is a critical step and one that you need to take very seriously. The outcome of a bail hearing is going to determine whether you or someone you know should be released from jail pending the outcome of the criminal charges. It is not recommended that you run a bail hearing without the assistance of a lawyer. Simply put, a lawyer can make the difference between whether you are released today or held in jail until your matter is resolved.

What Can a Lawyer do for You

As a lawyer, running an effective bail hearing requires amongst other things;

• Meeting with you or someone you know who has been arrested.
• Ascertaining the charges you are facing and your personal circumstances.
• Arranging for someone to act as a surety.
• Speaking with the proposed surety prior to holding a bail hearing and ensuring he or she understands completely what his or her duties as a surety will encompass.
• Meeting with the Assistant Crown Attorney with a view of ascertaining the Crown Attorney’s position with respect to bail.
•  Negotiating, if at all possible, to agreed upon terms and conditions of the bail.
• Consulting with the person who is detained to ensure he or she agrees to the terms of bail and is willing to abide completely and fully with the terms.
• Appearing in court before a Justice of the Peace and advocating on your behalf with respect to why you should be released and not held in jail until your matter is completely resolved.

What Happens at a Bail Hearing

Any person who was arrested and not released by the police is entitled to appear before a judge or justice of the peace within 24 hours or as soon as practicable to hold a bail hearing to determine whether the person should be released or detained until the matter is resolved. Unless you are arrested by the police in morning it is unlikely that you will have a bail hearing until the following day, which means that you can expect that you will be spending a night in jail.

When you are brought before the court for a bail hearing, the Assistant Crown Attorney will read out a brief synopsis of the criminal charges, including the alleged circumstances leading to offences you are charged with. In circumstances where the Crown Attorney is consenting to you being allowed bail, the Assistant Crown Attorney will inform the Court of the reasons why the Crown Attorney supports bail and the bail conditions being proposed.

Where the Crown Attorney is not consenting to you being released on bail, the Assistant Crown Attorney will advocate the reasons why you should not be released. Your lawyer will then be provided an opportunity to advocate why you should be released. Your lawyer may call to the witness stand the person who is being proposed to act as a surety for you. The Court will likely want to know that the person acting as a surety is someone who is responsible and willing to ensure you comply with your bail conditions. The Court will also want to know that the surety is willing to advise the police and the Court that they are no longer willing to act as a surety where they know you are not complying with your bail conditions.

In a contested bail hearing a Justice of the Peace will then make a determination of whether you or someone you know should be released on bail. Where you are not granted bail you will be detained pending the outcome of the criminal charges. In circumstances where you are detained, you will have to bring an application for bail review if you want any opportunity to be released from jail prior to your matter being resolved.

 Where the Burden Lies

In most, but not all cases, the burden is on the Crown Attorney to establish just cause as to why the person should not be granted bail. In circumstances where you are arrested while you are already on bail, there will be a reverse onus on you to establish why you should be released on bail again. In these circumstances you can expect that the Crown Attorney will not be consenting to bail and it can become more challenging to get you released a second time. Simply put, the Court is going to want to know why you should be released again when you did not comply with your bail conditions the first time.

There are also a few, but very serious criminal offences that have a reverse onus, where you must establish why you should be released from jail pending the outcome of the charges against you. Murder is an example of one of these offences where there is a reverse onus.

Plan to be at Court All Day

Although a bail hearing itself may be brief in nature, the entire process can take most of the day. Bail Court does not usually start until 9:30 or 10:00. Even if a bail hearing is held soon after court begins, you can expect to wait at least another hour or more before someone is released. The bail papers must first be typed. Once the bail papers are typed a Justice of the Peace must sign the papers consenting release.

If you are taken to court in the morning and you have not retained a lawyer, you can expect to wait around for a while. Those individuals that have lawyers and are prepared to hold a bail hearing will be heard before your matter.

If you are there to act as a surety for someone, or if you are there to provide support, you should know that you will not be able to speak to the accused person in court and you will not be able to speak with that person in the cells. Only lawyers can speak with accused people in the cells.