Understanding Bail Hearings

For the average person, meaningful interaction with police or the courts is a fairly rare occurrence. You may have gotten a speeding ticket or been stopped at a roadside spot check. And while that might be somewhat stressful, facing a criminal charge brings a much higher level of anxiety.

If you have been arrested and placed in custody, what comes next is likely to be foremost on your mind. First of all, try to remain calm. Every person who is charged is presumed innocent until proven guilty. Police may believe you should be held in custody until your trial but you have rights. Under the Criminal Code, you are entitled to a bail hearing within 24 hours of being arrested or “as soon as possible” if a justice is not immediately available.

You also have rights guaranteed under the Canadian Charter of Rights and Freedoms. Included is the right to an attorney, which is important if you are facing a bail hearing. You may feel that you can handle the hearing alone but making a mistake could mean remaining in custody until your charge works its way through the court system. And your trial could be more than a year away.

I have successfully represented clients on various charges and arranged bail or a variation in conditions that allowed them to get on with their lives while I worked to build their defence before trial. Check out my cases for release and bail section to see how I can serve you.

What can I expect after I have been arrested?

With any criminal offence you have the right to be told why you have been arrested. You have the right to be searched in a reasonable manner. And, as mentioned earlier, you also have the right to speak to a lawyer. Retaining an attorney goes hand-in-hand with the right to remain silent, which is more important that many people realize.

You must give police your name but you are not required to make a statement. As anxious as you might be to tell your version of the events, the chances of talking your way out of a criminal charge are extremely slim. You may think you are revealing something insignificant when speaking to police but investigators are trained to look for any information that supports the case against you. Your statement could be recorded and played at trial. What you believe to be inconsequential could become another building block the crown can use to prove its case. Remaining silent is not an admission of guilt but is, in fact, a prudent move.

The best thing you can do is seek advice from an experienced criminal lawyer. I can protect you from self-incrimination, review your case and guide you through the next steps. Starting with your bail hearing.

What will happen at my bail hearing?

Depending on the circumstances, police have the authority to release you after you have been charged. You would then be expected to attend court at the determined date. You could also be released on an undertaking that requires you to abide by certain conditions.

Bail is the common term for a judicial interim release. If police believe you should be held in custody you are entitled to a bail hearing, which would require you to appear in person, by videoconference or by telephone. The hearing is presided over by a justice of the peace or a provincial court judge, who determines whether you should be detained, if you are suitable for release and, if so, any conditions of that release. In Alberta, these sessions are held from 8 a.m. to midnight, every day of the year.

Although some facts of the case will be read out, a bail hearing is not a trial of the charges and no determination will be made about your guilt or innocence. The sole purpose is to determine if there is a risk of allowing you to remain in the community while awaiting trial. The crown can introduce evidence opposing your release which may include your prior criminal record — if applicable — and a summary of the allegations. It is important to have an experienced lawyer on your side to make arguments as to why you should be released.

What are bail conditions?

There are several considerations that go into determining if you are eligible for release. Do you present a risk to the public? Will you show up for your court appearances? Will your release result in the loss of public confidence in the judicial system?

If you are deemed suitable for bail, a judge may impose conditions that you must abide by. If you fail to do so, you could find yourself back in custody until your case is resolved. These conditions can be restrictive depending on the charge you are facing and may include:

  • abstaining from drugs or alcohol;
  • no contact with certain people such as the alleged victim or witnesses;
  • a curfew or travel restrictions; and
  • reporting to police or to a probation officer.

There may be other restrictions depending on the charge you are facing. For example, if you have been charged with a child pornography related crime you may be prohibited from accessing the internet or possessing a cellphone.The court could release you with no financial obligation or ask you to post money upfront. You could also be released on a promise to pay. If you violate your bail terms, you would then be expected to pay a portion or all of the pledged amount.

What is a surety?

The court may insist on a surety before agreeing to your release. A surety is someone who oversees you while on judicial release. They would ensure you abide by the conditions of your bail and show up for all court appearances.

Generally, a surety would be someone who has regular contact with you, such as a parent or a close friend. They must be over the age of 18, a Canadian citizen or landed immigrant and must not have been involved in the crime you have been charged with. The court will want to know if the potential surety has a criminal record or any outstanding charges.

A surety must be willing to report any breach of the conditions of bail and have financial assets to pledge security to the court in case you violate your release terms. A surety can return to court to be H4 from the responsibility at any time and you would be remanded in custody.

What happens if bail is denied and can my conditions be altered?

If you are denied bail, you will be held in custody, potentially until your trial. While you only get one bail hearing, you can appeal the decision to the Court of Queen’s Bench after 30 days.

It should be noted that the crown can ask the court to cancel your bail or change the conditions if you fail to live up to the terms of your release. As well, you can also apply to change your release conditions. To do that, you would have to approach the crown with the request. Because it is at the prosecutor’s discretion to agree to any variation, it is recommended that you retain an experienced lawyer to conduct your bail review hearing.

Don’t handle your bail hearing alone

You may have a perfectly legitimate reason for being released on your own recognizance but if you are unable to clearly articulate your argument in court, you could be held in custody or face unnecessarily harsh restrictive bail conditions. I have extensive courtroom experience and I know how to negotiate with crown prosecutors to get my clients the terms they are seeking. Don’t take a chance with this important step in the legal process. Contact me for a free consultation.