Bail Hearings

Bail Hearing Lawyer in Mississauga & Brampton

I’m (or a loved one) is being held for a bail hearing. How will the court decide if I (or my loved one) can be released?

Getting the bail hearing right is crucial. You don’t want your friend or loved one to remain in jail for months on end until his trial. Often people are not released because there was a lack of preparation for the bail hearing. There are strict requirements which must be met before the Court will allow an accused person to be released.

Aswani K. Datt conducts bail hearings across the Province of Ontario, including Mississauga, Brampton, Toronto, Newmarket, Oshawa and Milton.

The Crown hopes to deny bail to most individuals to pressure them to plead guilty.

The Court can generally only detain a person on the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, 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; and
(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

The Charter of Rights and Freedoms indicates at s. 11 that:

  1. Any person charged with an offence has the right…not to be denied reasonable bail without just cause.

However, there are exceptions for certain offences such as where firearms and drugs are involved.

The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre‑trial stage of the criminal trial process and safeguards the liberty of accused persons.

This right has two aspects: a person charged with an offence has the right not to be denied bail without just cause and the right to reasonable bail. Under the first aspect, a provision may not deny bail without “just cause”  there is just cause to deny bail only if the denial occurs in a narrow set of circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that system.

The second aspect, the right to reasonable bail, relates to the terms of bail, including the quantum of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable.

While a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories. A central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release, which are found in s. 515(1) to (3) of the Criminal Code.

Ladder Principle:

Save for exceptions, an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds.

If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed.

Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.

Where the parties disagree on the form of release, it is an error of law for a judge to order a more restrictive form without justifying the decision to reject the less onerous forms.

A recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate. It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court.

A recognizance is functionally equivalent to cash bail and has the same coercive effect. Cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. The judge is under a positive obligation to inquire into the ability of the accused to pay.

Terms of release under s. 515(4) should only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must not be imposed to change an accused person’s behaviour or to punish an accused person. Where a bail review is requested, courts must follow the bail review process set out in R. v. St‑Cloud2015 SCC 27[2015] 2 S.C.R. 328.

Aswani K. Datt can assist you in determining what approach to take to have a successful bail hearing to have your loved one released.

The Bail Hearing is the most important step in your defense as it has serious practical implications.

Contact Us for a consultation. I offer strategic, intelligent and aggressive advocacy focused on your rights.

Becoming a Surety

There may be a time in which you are asked to become a surety for a friend or family member in order for that person to attain bail. There are a number of things to remember before deciding to undertake this role.

The duties of a surety are serious. A surety vouches for the character of the accused by guaranteeing the accused will attend court as required and abide by the conditions of the release order.

This is done by requiring the surety to put up a sum of money or other valuable real or personal property in support of that person. The effect of granting bail is not that the accused is set free but is to release the accused from the custody of the law and entrust him/her to the custody of the surety.

There can be serious consequences to becoming a surety. If the accused does not abide by the release conditions of bail, both the accused and the surety can suffer financial consequences.

If the accused fails to attend court or breaches any of the release conditions, the Crown can ask that the accused be noted for estreat under the Criminal Code. The effect of this is that you can be liable for the amount of the bail you had previously posted.

Since the consequences and duties are serious, a surety may decide at any time to cease being a surety. This can be done by taking the accused to the proper authorities or by going before a Justice of the Peace and filing an Application by Surety for Relief to be removed of their responsibility. Both will render the accused back into custody and relieve the surety of any further legal obligations.

In the end, you should understand the serious duties and responsibilities of being a surety. Never undertake such a role unless you reasonable believe that you can ensure that the accused will comply with all of the release conditions. If you believe that the accused will not abide by all of your directions and requests, it would be unreasonable for you to become a surety for that person.

Supreme Court of Canada:

The SCC has provided significant recent guidance on bail and relevant Charter considerations.

The SCC noted in the St-Cloud (2015) decision that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.”

In the Antic (2017) and Zora (2020) decisions, the SCC ruled that for most alleged crimes, release on bail at the earliest reasonable opportunity with minimal conditions is the default position.

These decisions make clear that the principles operate alongside the grounds for detention and do not replace them. This means that detention is still permitted where it can be established that there is “just cause” for it and there are no appropriate other ways of addressing risk if the accused is released, such as risk of flight or public safety risk, or where public confidence in the administration of justice would be undermined.


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