Bail Hearings & Bail Appeals – You Have Rights
Decisions made at bail hearings and bail appeals have a significant impact and can make or break a person’s life. Brush up on your knowledge of what the process is like below.
Individuals who have charges brought against them might be detained by the police upon their arrest. The Criminal Code of Canada allows for the court of law to provide bail, which is essentially written permission that enables an individual who has been charged with a criminal offence to be released from jail while they await their trial, a withdrawal of charges or if they plead guilty.
The arrest, being in police custody and the possibility of staying in jail without being released on bail are all potentially damaging to the individual’s reputation and are psychologically and physically quite distressing.
John Erickson, B.A. (Hons), LL.B, a senior criminal lawyer and Ex-Crown Prosecutor, works with the accused and their family by offering experienced and persuasive legal aid to protect their interests, freedoms and rights.
Know Your Rights!
Upon arrest, you are afforded certain constitutional rights by the Canadian Charter of Rights and Freedoms. These are in place to protect your interests if you are suspected of committing a crime and are in police custody. Accordingly, in such case you reserve the right to:
- Remain silent upon police questioning
- Be informed about the reason for your arrest and detention
- Be informed that you may choose a lawyer – either court appointed or otherwise
- Be informed about the availability of legal aid
- Speak with your lawyer immediately
If you have been charged with an offence, pending arrest or were not arrested, you reserve the right to be given a trial within a reasonable period from the date of being charged, to be presumed innocent until proven guilty by a prosecutor or to be released on bail if there is no valid reason to continue keeping you in custody.
The Bail Hearing
In a criminal proceeding, a bail hearing is one of the first and most important steps. This is because in most cases and for all intents and purposes, the Canadian Criminal Code affords the accused just one chance at bail. Should the accused be declined bail by the judge or justice of peace at the initial hearing, they do have the ability to appeal the decision. However, more often than not, the initial bail hearing profoundly affects the approach that the reviewing court adopts when considering an appeal. The appeal process is lengthy and cumbersome and causes further stress for the accused while in custody, waiting for the appeal date.
No more than 24 hours must elapse from the time of the arrest to the initial hearing. Prior to deciding whether or not to bring the accused to bail court, the police look for exonerating factors that could warrant a release instead. The factors are as such: the severity of the charge, whether or not the accused has a preexisting criminal record or if there are other charges against the accused at the time of their arrest.
At a bail hearing, the Crown – a government lawyer appointed to prosecute the accused – reads the police synopsis detailing the allegations to the court. A common occurrence is having a witness or witnesses attend the hearing to testify. More often than not, the police officer in charge of the investigation is the witness.
Once the Crown presents the allegations, the duty counsel or the lawyer of the accused will present the court with evidence. In most cases, this is done by having the accused and/or a surety testify in court. A surety is a person in whose care the accused has been or might potentially be released to on bail. The surety promises the judge or the justice of peace that they will supervise the accused should the accused be released on bail and also pledges a certain amount to facilitate the accused’s release. The overarching aim of a bail hearing is for the accused’s duty counsel or lawyer to convince the court that the accused will abide by the bail conditions stipulated, either by themselves or under the supervision of the surety.
When the evidence has been presented, the judge or justice of peace will hear the arguments made by both sides. At this juncture, the judge or justice of peace arrives at a final decision to either release the accused on bail or retain them in jail until the trial or until another outcome transpires – dropped charges or a guilty plea.
If the outcome of the initial hearing is in favour of the accused, they will be released from custody and be free to live and operate in society until the case goes to trial or is settled in some other way. However, the accused will still be subject to all the bail conditions stipulated during the hearing.
It is likely that the accused may have to wait as long as 6 months to 1.5 years for the trial. This is why a bail hearing must be carefully prepared for so that they do not have to spend that time languishing in jail.
The Bail Appeal
The procedure regarding bail appeals or bail reviews is much more sensitive in nature and is fundamentally life-changing for the accused. It has to be handled by legal experts who have an established track record for success. John‘s firm is one of just a handful of criminal defense lawyers that have the know-how and experience to present the unsuccessful bail decision before the reviewing court in the best possible way, even when the odds are against the accused.
Preparing for a bail review involves collecting appropriate materials and can take anywhere between 3-5 weeks before presenting them to the superior court judge of the reviewing court. To have the appeal swing in your favour, it is essential for the criminal defense lawyer and the accused to convince the judge that an error was made by the lower court judge during the initial hearing while making the decision to refuse bail. That‘s an uphill battle to say the very least and fraught with complications.
Although bail reviews are frequently won by the accused‘s team, it is always in their best interest to get a favorable decision at the initial bail hearing itself in order to ensure a speedier release. This is why a competent and efficient criminal defense lawyer and well-practiced sureties are key to getting it right the very first time.