Bail Hearings

WE ARE THE BAIL WIZARDS – OPENING THE JAIL DOORS!

HIGH SUCCESS RATES IN ALL KINDS OF BAIL MATTERS:

• BAIL HEARINGS – CONTESTED BAILS
• BAIL REVIEWS
• BAIL VARIATIONS
• BAIL APPEALS
• Section 525 BAIL DETENTION REVIEWS
• BAIL PENDING APPEAL
• BREACH OF BAIL / BREACH OF RECOGNIZANCE
• FAIL TO APPEAR/ FAIL TO COMPLY

HIRE A BAIL HEARING LAWYER

TO SECURE SPEEDY RELEASE OR OBTAIN SPEEDY BAIL

• VERY HIGH SUCCESS RATE: We have a very high success rate in obtaining both consent bails and winning contested bails for serious charges.
• RESPONSIVE 24/7: We are responsive. We can handle emergency situations 24/7 and on weekends where you provide us with short notice for bail matters;
• WE ATTEND JAIL: We will come visit you in jail or arrange a call to you at the Jail for your Bail Hearing.
• AVOID BAIL HEARINGS: We can often speak to the police at the station and obtain your release on a Promise to Appear so a Bail Hearing will not be required.
• WE PREPARE BAIL PLANS:  After reviewing all the facts and the law we prepare a Bail Plan that is solid enough to persuade the Crown
  and the Court to release you and on the least restrictive conditions.
  Strong Bail Plans = Success.

• WE ARRANGE COUNSELLING: If we see there are any issues where you are struggling with mental health, alcohol or other substance abuse issues we will arrange and line up counseling and treatment programs for you so that this can be presented at Bail Hearing to help you address these issues and increase your chance of success at the Bail Hearing and any future date in the proceedings.
• WE PREPARE & SCREEN SURETIES: Sureties are key elements in a successful bail. They are persons who will undertake to the Court that they will supervise the accused in the community and ensure they comply with conditions imposed.  They agree to report the person if they fail to comply. They also pledge monetary amounts which they could possibly forfeit in the event of a breach. Most sureties make a pledge (promise to pay), but some have to make an actual deposit with the Court. In either event we ensure they are “vetted and screened” for suitability, financial resources, and so that they are prepared to answer questions the Crown or the Court may ask.
• NEGOTIATE CONSENT BAILS: If you need a Bail Hearing, we can negotiate with the Officer in Charge of your Case and the Prosecutor for a release on CONSENT on fair conditions to you to avoid a Bail Hearing.
• SPEEDY HEARINGS: If a Contested Bail Hearing is required, we are assertive to ensure it proceeds as quickly as possible so that you are not detained unnecessarily.
• EFFECTIVE: In a Contested Bail Hearing we provide you with effective, experienced representation.
• LESS RESTRICTIONS: Bail lawyers  strive to ensure you are released with the least restrictive conditions as possible such as living under house arrest, with curfews, or with sureties.
• WE KNOW THE LAW: We know in which cases the Crown bears the clear burden to show why you should be detained and in which cases there is a “Reverse Onus” where the accused bears the burden to show why they should be released and all the special provisions that apply to Judicial Interim Release (Bail).
• WE KNOW BAIL PROCEDURES: We use our procedural knowledge to move quickly to run through all the options to secure your speedy release by approaching the Officer in Charge, the Prosecutor and finally to put together a strong bail plan for negotiation of your release or a Contested Bail Hearing on an expedited
• WE USE THE CHARTER: We use the Canadian Charter of Rights and Freedoms which is the highest law in our country, higher than the provisions of the Criminal Code, to argue for your release pursuant to section 11 (e) which provides that “Any person charged with an offence has the right not to be denied reasonable bail without just cause”;
• WE USE THE LAW: We know how to use the law to our advantage: we cite the leading cases to persuade the Court and the Prosecutor to secure your release on reasonable conditions.
• WE COME PREPARED TO BATTLE: We come well prepared to any Contested Bail Hearing. We screen our sureties so they will stand up to Cross Examination, bring witnesses, interview you thoroughly, review all the law, contest the allegations against you.
• WE PREPARE WITNESSES: We prepare witness that we think will help you at the Bail Hearing to both show you are likely to follow conditions imposed upon you AND witnesses to show flaws and weaknesses in the Case against you.
• WE ARE DEDICATED: We take your incarceration seriously. We want to win your freedom. It’s not just about fees.  We believe that depriving anyone of their Liberty is a serious act by the State that needs to be challenged wherever and whenever possible and all Canadians should be entitled to enjoy their Constitutionally guaranteed right under Section 7 of our Charter: “ Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” We fight for that right.
• WE ARE PERSUASIVE ADVOCATES: Advocacy is both a skill and an art and we use this effectively to secure your release from detention with  the least restrictive conditions.
• GRATEFUL CLIENTS: Our clients are grateful to be out of detention, go to school, work, and be with their families and enjoy the peace that comes from having their liberty. They can help us better to prepare for their defence and their mental and physical well being are better as they live without unnecessarily harsh restrictions of release. Check our Results Page.

WHAT IS A BAIL HEARING

A Bail Hearing is a requirement of the Courts under the Criminal Code to bring an accused promptly after being charged with an offence before the Court to determine if they should be released and if so, on what terms. It is also called “judicial interim release”.

For many offences the Prosecutor has the burden to show why an accused should be detained in custody.

For a group of more serious offences, called “reverse onus” offences, the accused bears the burden of proof to demonstrate why he or she should be released on bail with or without certain conditions.

In both cases the aim of the legislation is to attempt to compel accused persons to behave in a manner that will prevent them from reoffending pending their trial and to keep the community safe.

The Bail Hearing is somewhat of a mini hearing of the allegations against the accused, where the Crown may call the investigating officer or other witnesses to give some brief evidence or refer to facts in the case.  The evidentiary rules are very wide and so a lot of negative information can get in before the Court which may have little basis in fact or reality.

Our job is to poke holes in that evidence as best we can, to show the flaws and  weaknesses in the case and call any evidence that we believe will lessen any impact without disclosing any trial strategy or putting the accused or key witnesses on the stand.  We try to demonstrate that the case is not as strong as it looks on paper, and to emphasize that these are just allegations right now. We raise possible defences, and demonstrate that the Charges may not survive a trial.

We remind the Court in summation that in this Country an accused is protected by The Canadian Charter of Rights and Freedoms, section 11(d) guarantees Canadians the right to be presumed innocent. Specifically, anyone detained or charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.

We also remind the Court that the Supreme Court of Canada has ruled in R. v. Starr, that proof of guilt is beyond a reasonable doubt is a very high standard that is closer to absolute certainty.

In other words, we submit to the Court that if the Case against the accused is weak in some or many areas, then it is unlikely that the Prosecution will obtain a conviction due to the extremely high standard of proof and therefore argue this be taken into consideration in determining release and the level of conditions to be imposed.

TYPICAL CONDITIONS FOR RELEASE

Bail conditions are the Court’s way of protecting the community and preventing the accused from reoffending.

The Courts seek to strike a balance between these objectives AND the offender’s right to be released pending trial to enjoy his constitutional right to liberty.

The Court is an ADVERSARIAL SYSTEM and as such the Prosecution may oppose release when it is not justified, and/or may ask for very restrictive and onerous conditions, that are punitive in nature to be imposed as terms for release.

It is our job when acting on your behalf to push back against unfair positions by the Prosecution and demonstrate to the Court that some conditions are excessive and possibly designed to  induce a breach.

We have to continually remind the Court that under our system all accused are to be presumed innocent until proven guilty.

the Bail Hearing is not like a trial, the rules are very loose as to what information can go in, and a lot of the material the Justice of the Peace hears are mere allegations, not supported by witnesses or concrete evidence.

WHAT IS AN “UNDERTAKING” (PROMISE TO APPEAR ) and a “RELEASE ON OWN RECOGNIZANCE”

When an accused  is released by the police at the Station without appearing before a Justice of the Peace, they will be released on an Officer in Charge (OIC) UNDERTAKING.

When the accused  is brought before a Justice of the Peace  in Court, then typically the release order is called a RECOGNIZANCE

In either case an accused will be subject to various conditions.

A release by a Justice of the Peace on a Recognizance will have many typical conditions such as keep the peace and be of good behaviour, refrain from use and possession of illicit drugs and alcohol, not be in custody of any weapons/ surrender weapons, and abstain from attending certain places or communicating with certain people.

On an OIC Undertaking / Promise to Appear release: you can either be released on 3 different types of terms:

• your own simple promise to appear,
• your promise to appear with the condition you pledge (but not deposit) up to $500 as security, or
• with or without deposit of $500 if you reside over 200 km from the place of custody or if you live outside Ontario,

In addition to the security above, you can be required to agree to these conditions as well depending on the opinion of the Officer in Charge:

• to remain within a territorial jurisdiction specified in the undertaking;
• to notify a peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;
• to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;
• to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;
• to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;
• to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;
• to abstain from the consumption of alcohol or other intoxicating substances except in accordance with a medical prescription; and
• to comply with any other condition specified in the undertaking that the officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.

WE DEFEND  BREACH OF RECOGNIZANCE /  BREACH OF UNDERTAKING / BREACH OF BAIL CONDITIONS

If you are released on a Undertaking to Appear or on your own Recognizance, and you fail to appear at Court or breach any of the terms in the Recognizance  or Bail Conditions that you were released under, you will be charged with the Criminal Offence of Breach of Recognizance and can face up to 2 years in jail.   Typically a 30 day sentence or less is imposed depending on the circumstances.

Failure to follow Conditions such as a curfew or no contact provision, house arrest restriction, or non consumption of drugs/alcohol will result in both re-arrest, a new charge for breach, plus a cancellation of your existing Bail.  You will  then be held for a new bail hearing which will be more difficult this time round,  depending on the type of breach. Generally,  the more breaches the more difficult obtaining bail will be as the Court will have less trust in you and the Crown will oppose more vigorously.

A Breach could end up with you being denied bail. Forcing you to either  sit in jail awaiting trial  or to launch a Bail Review. Sitting in jail puts you in a less favourable position to negotiate any deal with the Crown. You do not want to have to plead guilty in a time-served situation just to get released when you have valid defences.

Fortunately, we have had multiple successes with accused with many breaches obtaining bail again.  We know all the defences. Proof of intention to breach is required “beyond a reasonable doubt” so failing to comply with a condition or attending court due to mistake or carelessness or failure to take the precautions that a reasonable person would take will not support a conviction.   Some typical defences are:

• The failure to appear was an accident
• The accused did not know about a condition or conditions in their recognizance
• Genuine Mistake – Sometimes what is read orally in court may differ from what is typed up in the written signed conditions
• The accused was not aware of his duty to appear in Court
• The accused did not realize a person with whom he was not to have with is in the vicinity putting them in breach of a no contact

BENEFITS OF BEING RELEASED ON BAIL

In addition to the obvious that you will not have to spend time in jail there are many important benefits of being on bail:

• You will be able to assist your lawyer in the defence of your case.  It is very difficult to properly defend you if you are in jail as communications are very limited.
• You will keep your job and be able to keep working
• You will be able to continue your education
• You will be able to see your family and friends
• Your mental and physical health will be much better
• You will be able to participate in any required counselling, therapy, substance abuse programs, or see any specialists necessary for the defence of your case.

OUR EXPERIENCE, OUR SUCCESS, TOUGH CASES

We always try to negotiate terms with the Crown Prosecutor to secure your release without having to have a bail hearing.

Before we do this we have to have all of our “ducks in a row” that is, line up what we believe will be reasonable terms and screen any potential sureties and  do any necessary research of the law to ensure we have legal precedents if we need to rely upon them in our negotiation.   We try to put our best offer and terms for bail on the table to secure your release early on Consent.

If the Crown Prosecutor does not agree to a Consent Bail, then we proceed forward with the Hearing.

Some hearings last a half or full day, others go on a few days, and others can be a week or more.  The bottom line is that we go in there and try to convince the Justice of The Peace who presides that you ought to be released, on terms we have proposed.  We argue that the public and the community will be protected with the terms in the release order.

We call Sureties to the stand testify about how they will help ensure the accused’s compliance with conditions.  We line up GPS monitoring bracelets so that the Police will know if the accused released on bail has breached his restrictions by being out of the home or out past a curfew etc.

We have fought bail hearings lasting an entire week in Murder and Firearms cases and challenged evidence relating to Firearms use, GPS, Camera footage, identification and other allegations in the form of a mini trial for the purpose of securing the release of an offender.

We have secured the release of numerous accused with records in very difficult contested bail hearings where the onus is on the accused to demonstrate why he/she should be released and have had a very high success rate including

BAIL VARIATIONS LAWYER – HIGH SUCCESS RATE

Sometimes, for valid reasons, you will need to vary your Bail Terms.   Sometimes it is simply because you were subjected to very restrictive bail conditions from the start that were too onerous and don’t make sense.  We will make an Application to the Crown seeking a Bail Variation Consent.  We will supply the Crown with all the necessary information to justify the change, important factors about you, why you need the change, and why the existing terms are inappropriate now.  We will provide all supporting documentation and  follow up to discuss, advocate and negotiate the same with the Crown to gain their approval on Consent.

We are highly successful in our Bail Variations because we take the time to do them right and know what the Prosecution and Court will want to see to ensure they are satisfied that there is minimal risk to any reoffending or risk to the Public.

Often, you have complied with your terms for a certain length of time and simply wish to have less restrictive conditions such as:

• Going from wearing a GPS monitor to no GPS monitor
• Going from House Arrest to no House Arrest but with a Curfew,
• Going from House Arrest with limited exceptions (such as leaving with Surety only) to House Arrest where you can leave in more circumstances and with or without Surety
• Adding or Changing a Surety (sometimes a Surety does not wish to remain as surety or cannot be present to fully supervise)
• Going from having a Phone and Computer restriction to being permitted to have a phone and Computer;
• Having contact with a specified person such as a spouse for the purpose of family events or special children’s activities;
• Change in Employment to be updated on the Bail Papers;
• Reporting less frequently or at different times or dates to the Police station due to work obligations;
• Changing Terms that you were subjected to at the time you were released on a Promise to Appear by the Police with conditions set by the Police and which are now not reasonable and too onerous

NOTE: IF the Crown does not  consent to the Bail Variation, you have the option to have a Judge review the Crown’s decision and your request in a formal “Bail Review Application”.

We never give up and we do Bail Reviews very successfully.

BAIL REVIEW LAWYER – HIGH SUCCESS RATE

A Bail Review is done when the Crown refuses to consent to a Bail Variation.  These are serious applications and contested by the Crown in the Superior Court.   Unlike a Bail hearing where the accused is detained, the accused in the  Bail Review is not in custody. Otherwise the hearing is similar to a Bail Hearing.

A Bail Review is also available when a Bail does not go as planned and an accused is detained. In its simplest terms, for a  Bail Review  to be successful we must show that:

• The JP at the Bail Hearing made an error in law, or
• There has been a material change in circumstances that would justify changing the original result.
• If successful on either of the above,the Bail Review Judge can order a new bail on conditions.

We know the key points for the Court to hear.  Our very high success rate is not luck. It reflects that we come prepared to battle.  We bring  the facts on our side, we bring the legal precedents in the law on our side, and we bring the important protections contained in the Canadian Charter of Rights and Freedoms to support our client’s cause. We Bring a Strong Bail Plan so that the Court will feel confident in granting the request we ask as it will continue to offer protection of the community and that the accused will not reoffend if they make the requested change.

BAIL PENDING APPEAL

Once an accused is found guilty at trial and receives a custodial sentence they are normally taken into custody immediately or, in exceptional circumstances, shortly afterwards.  If the accused wishes to appeal their conviction or sentence or both they need to file an Appeal.  Filing of an Appeal does not however keep a convicted accused out of jail. To stay out of jail after conviction and sentence it is necessary to file an Application for Bail Pending Appeal.  We do this all the time for clients.    In addition, if we are doing the trial and/or sentencing, we will have all the paperwork ready to go well in advance with a strong bail plan and the legal research done so that the law supports our position.  We will forward this to the Crown in advance to seek their consent and discuss with them any concerns.

To do this takes a lot of coordination. Our goal is to avoid having the accused spend then we make arrangements for the Bail Pending Appeal to be heard promptly after the sentencing.

SECTION 520 and 525 BAIL DETENTION REVIEWS

YOU SHOULD KNOW THAT:

• 520 and s. 525 Bail Detention Reviews are automatic and you should never waive them. Always take advantage of the opportunity to win your freedom and always be competently represented
• Circumstances change and your could walk out of custody despite losing your bail hearing and/or any prior bail review
• You may be in or close to a time-served situation and the Court may be agreeable to releasing you
• The Court may find errors in the original bail hearings or bail review and decide in your favour
• Your new Bail Release Plan may satisfy the Judge that you should be released
• You may have stronger sureties than at your original bail

In addition to the right to arrange your own bail review, S. 525 of the Criminal Code provides automatic detention reviews for those who have been denied bail and remain in custody. These arise once an accused has been in custody 30 days if the offence is a Summary Conviction Offence, or after 90 days in custody, or if it is an Indictable Offence.

The legal tests in a Bail Hearing and a Bail Review differ but both are harsher than those in a Bail Detention Review.  Even though the Judge on a s. 525 review must show respect for the prior bail decision, a stated purpose is to facilitate in arranging bail in appropriate circumstances.  Our job is to demonstrate that those circumstances are present and that our client now deserves to be released.

Therefore, in very difficult cases, provided that every effort was made at the Bail Hearing and the Bail Review,  the same evidence might be viewed in a different light and more favourably in a s. 525 Detention Review.

A s. 525 Detention review function is to determine if the detention remains justified. Hearings are an important opportunity to present another strong Bail Plan, with strong sureties and more compelling reasons for the accused’s release.

It’s purpose is to avoid having an accused languishing for lengthy periods of time in pre-trial custody and to ensure a prompt trial. An important goal of S. 525 Reviews is to require the Court to monitor the continued detention of an accused, especially those without means or capacity,  to ensure that they are not needlessly detained, and to ensure that there is no unreasonable delay in proceeding with the trial. It is also designed to assist the detained in obtaining bail and the review of bail applications when originally refused. The section provides oversight of delays in the trial process even where the defence does not desire a bail review hearing.

Detention Review vs Bail Review

A review application under s. 520 (by the accused) or 521 (by the crown) is to review a prior order.

The purpose of a detention review under s. 525 is a review of the detention itself.

Detention review is not, however, a second kick at the can for the bail hearing and the detention review judge must “show respect” for the findings of fact of the initial judge and balance factors “in light of the time that has already elapsed and any other relevant considerations”.

In a Detention Review we would typically provide – bail transcripts (in some cases), surety affidavits, the synopsis of the charges, criminal record of the accused, whether the charge is a reverse onus, summary of the evidence at the bail hearing, and whether the accused is at the point of time served. We would also argue all factors that favor the release of the accused.

The right to a Detention review under s.  525 is available to detainees, including those who have not had a full bail hearing therefore those who did not contest their initial detention are eligible for a Section 525 hearing.

The Accused can waive his/her right to the Review, if done in writing before the 90 days,  but law requires that the Jailer has a positive obligation to schedule the review immediately after the expiry of those 90 days”.

If the Jailor fails to do this on time, the accused can argue that his rights have been violated and that can serve as a basis not only for release from custody but for the charges to be Stayed.  The Canadian Charter of Rights and Freedoms becomes the basis for the argument for these remedies.

We do s. 520 and s. 525 Detention Reviews and we apply our successful hard work ethic to all of our client’s cases.

ABOUT SURETIES

Sureties  are persons who promise to the Court that they will supervise the accused in the community and ensure they comply with conditions imposed.  They agree to report the person if they fail to comply. They also pledge monetary amounts which they could possibly forfeit in the event of a breach. Most sureties make a pledge (promise to pay), but some have to make an actual deposit with the Court. General Requirements for Sureties are below:

• Must be 18, Canadian Citizen or landed immigrant
• Must not be involved in as a co-accused or involved in the criminal offence or facing any criminal charges
• Must have sufficient financial assets / resources to make a financial pledge
• Should not be acting as surety in another case at the same time
• Should not have a criminal record, however, if minor or dated the Court can permit depending on the circumstances
• Must know the accused, have a relationship with them such that they can effectively supervise them and ensure compliance with any conditions
• Courts will also look at the level of maturity of the proposed surety and may not approve a very young person
• Court’s may not approve a person who has active alcohol and substance abuse issues or severe mental health issues
• A surety should be available at all times to supervise the Accused. If they are working and not available, another surety will be required for the time they will not be around.  If they have small children and need to be away parts of the day, there may need to be an additional Surety.  Sudden illness or emergency may mean one surety will be away. Therefore, it is wise to always go forward with 2 or more sureties.