The criminal lawyer Hamilton‘s expertise in protecting society from individuals who break the law. The system works fairly in that it affords the accused persons certain pre-trial rights, including the right to be granted reasonable bail unless there is a just cause for detention. This basic entitlement fortifies the right to be presumed innocent until proven guilty and safeguards the freedom of persons facing criminal charges. This comprehensive article explores all the aspects of bail, including the types of bail, eligibility criteria, reasons for denying bail, and how the bail system works in Canada. The bail hearing lawyer Hamilton has the best experience in successfully handling bail hearing cases.
R. v. Antic Supreme Court Ruling Changed Bail in Canada
R. v. Antic serves as a much-needed reminder to bail courts to uphold the accused’s persons constitutionally guaranteed right to a reasonable bail. With R. v. Antic, the Supreme Court took an opportunity to comment on our bail system generally. The Court provided direction to the bail court, focusing on strengthening the rights of the accused. Please find below the six directives to bail courts provided by Justice Wagner:
1. That the unconditional release of an accused person on an Undertaking is the default position of bail courts, with some exceptions.
2. That if the Crown wants to force a stricter form of release it must demonstrate its necessity.
3. With Antic, the Supreme Court has made it an error of law for bail courts to fail to explain why a less severe form of release was not used. This allows for decisions to be more easily appealed to the Superior Court.
4. that before imposing a cash bail, courts must ask the accused if they can pay. This is significant because accused persons who cannot find a suitable surety must sometimes hand over an amount of money to the courts to secure their bail. In cases where the accused is suffering financial hardship, this ensures that they will not be denied bail on that basis.
5. That bail conditions must only be imposed to the extent necessary to maintain confidence in the administration of justice and to enforce that the accused follows his bail conditions.
6. That in the case of consent release, when the Crown agrees to consent to the release of the accused and bail conditions are agreed upon by the Crown and the defence, bail courts can now reject the proposed bail if it finds that the suggested conditions are too strict.
R. v. Antic serves as a necessary reminder to bail courts to uphold the rights of the accused, forgoing unnecessary detentions, house arrests and otherwise onerous conditions. Moving forward it is anticipated that this decision will translate to fairer treatment for the accused as they attempt to secure bail.
The Bail Hearing Process in Canada
If you’re charged with an alleged crime, the police may release you on an undertaking or appearance notice. If the police do not release you, you have the right to be taken before a judge or justice of the peace within 24 hours or as soon as possible for a formal bail hearing. During a bail hearing, the prosecutor presents their case before the court. They usually have the burden of showing why the accused should be held in custody. Note that the prosecutor can consent to or argue against the accused’s release. After the Crown presents its case, the defendant’s lawyer demonstrates to the court why the accused should be released.
Note that the defence carries the burden of proof in certain offences and must show why the accused person should be granted bail. This is referred to as reverse onus.
After both the prosecution and defence present their case, the court determines whether to release or detain the accused person until their trial or until another case outcome, e.g., a guilty plea or dismissal of charges. When making this decision, the court considers several factors, including the gravity of the offence, the chances that the accused attends court after release and criminal history. If the court grants you bail, your release will be subject to certain conditions you should follow until your case is resolved. Failure to comply with your bail provisions will lead to a cancellation of your release, an arrest and new charges for breaching court orders.
Surety In The Criminal Code Of Canada
To be granted bail, a person is typically released in the care and responsibility of a surety who pledges a certain amount of money for their release. The surety can stand to lose this amount if the person breaches any of the court’s “conditions of release” or “recognizance” while they are on bail. Sureties are very important and will often be the deciding factor on whether or not a person is released.
The surety Eligibility:
Here is a list of eligibilities for someone intending to propose themselves as a surety in Court:
- No criminal record;
- Over the age of 21;
- An ability to supervise the accused to a degree required by the Court;
- An amount of money in savings or equity they can pledge to the Court as security of their promise;
- A capacity to understand and enforce the conditions the Court imposes;
- An ability to attend court on the day of the bail hearing in a punctual manner;
Keep in mind that none of the factors above are determinative of whether or not a person can be a surety, but assist the court and lawyer in ensuring that the plan of release is a responsible one. Once you have your sureties, you need to decide whether or not you wish to retain private counsel or use Legal Aid lawyers (duty counsel) for your bail hearing. The advantage of using duty counsel lawyers is that they are provided to you at no cost. However, duty counsel are often very busy and may not be able to cater to your needs as specifically as a privately retained counsel. The cost of a bail hearing ranges depending on the charges, the lawyer you retain, etc.
The cost of bailing someone out
The cost of bailing someone out is one of the most common questions we hear as lawyers. There are two aspects to this:
First, there is rarely a need for a “cash bail”. This means that even though the Court will ask you to secure your promise with some sort of security (i.e., a financial pledge), it is not typically something the Court requires upfront. There are some occasions where cash is required, but it is rare and should be dealt with by specific legal advice. In most instances, the pledge will depend on the seriousness of the charges. For example, a simple assault charge may require a $3000.00 pledge; whereas a first-degree murder charge may require much more. The Court will decide what is an appropriate amount if the release is granted. The second aspect of the costs of bail hearings is lawyer fees.
In every jurisdiction in Ontario, there is state-funded “duty counsel” who will conduct most bail hearings at no cost. While certainly an option, private counsel can spend far more time and focus on a case. Duty counsel are often very talented at bail hearings, but they are also balancing many cases on a single day and therefore often unable to provide the attention a client might hope for in these instances. The fees that private lawyers will charge depend on the lawyer but typically they range between $1000.00 to $2000.00 in fees. In truth, this may be the best value money can buy given the importance of the situation and the consequences if a bail hearing does not go favourably.
Conclusion
Bail is a crucial part of the Canadian criminal justice system. Understanding the various types of bail, bail eligibility, and other parts of the bail system can help you easily navigate the process if you’re arrested and charged with an offence. Gaining your liberty as you go through the criminal process is vital as it helps you strategize efficiently with your lawyer and continue with your day-to-day life. If you’re facing criminal charges, securing expert legal representation is important to ensure your rights are protected throughout the process. An experienced bail hearing lawyer Hamilton will guide you through your bail hearing and ensure you’re not denied reasonable bail.