The Canadian Charter of Rights and Freedoms guarantees a person will not be held in jail to await their trial or resolution of their case, without just cause. During a bail hearing, the crown prosecutor will present evidence and attempt to argue a handful of reasons to establish that there is just cause for your detention. There are three distinct grounds for holding a person in jail before being found guilty of committing a crime.
The first, or the primary grounds, is to ensure that an accused person attends all future court appearances that they are specifically ordered to attend. In assessing the primary grounds, the court will consider your criminal history (if any), prior character, general behavior, and your ties and connection to the community. For example, a Canadian citizen charged with a minor criminal offence who has ties to their community, no prior criminal record, and especially no prior record for failing to attend court or breaches of court orders, would likely not be held in custody based on the primary grounds.
The secondary grounds take into consideration whether or not your detention would affect public safety. For example, if you have been accused of a very serious violent offence, it might be more difficult to convince a judge that you are not a danger to the public if you were to be released. Your background, character, and prior criminal record, all have a bearing on whether or not you will be held in custody pending your trial, on the secondary grounds. An example would be if you are charged with sexual assault or aggravated assault, and you have multiple convictions for similar types of offences of violence. In this example, a justice of the peace would likely not release you on bail conditions following your bail hearing.
Finally, the tertiary grounds is where detention is required to maintain the public's confidence in the justice system. This third basis or criteria for detention involves any other “just cause” being shown, where the accused’s detention following a bail hearing is necessary in order to maintain confidence in the administration of justice in Canada.
The ongoing detention of an accused in custody pending their trial based on tertiary grounds is often made in extreme or violent criminal cases. It includes various considerations, such as the strength of the evidence against the accused, the specific circumstances surrounding the alleged crime, and the potential length of sentence to be imposed if the accused is eventually found guilty of the crime.
The Crown Presents Evidence at a Bail Hearing
First, the crown prosecutor will present the criminal allegations at the bail hearing. Usually, the crown will use the written summary prepared by the police officers who were at the scene at the time of the arrest, which can be read into the record and introduced as an exhibit at the bail hearing. The crown will also present evidence of the accused’s prior criminal record if any. Occasionally, the prosecutor might call witnesses to testify in court to demonstrate the allegations against you. The witnesses can include the police officer or an eyewitness to the event.
Your Lawyer Presents Evidence
Second, your lawyer will have the opportunity to present any evidence that might be counter to what the prosecutor has articulated. If there is no apparent evidence that would counteract what the Crown alleges, then your lawyer will attempt to provide answers to the primary, secondary, and tertiary grounds to secure your release.
This type of evidence will involve presenting the prior good character evidence of the accused, their complete history, background and employment, and a specific plan to show that they will show up at scheduled court dates, not commit further criminal offences and comply with all of the terms of their release.
A defence lawyer will usually call the accused to testify at their bail hearing regarding these various issues. However, the accused is not required to testify about the offence in question, nor is the crown allowed to cross-examine the accused regarding the criminal allegations. Strategically, a defence lawyer will never allow their client to testify about the actual criminal charges before the court, as this would allow the crown to cross-examine the accused and potentially create inconsistencies to be used against the accused at their trial and potentially create further evidence against the accused.
Usually, your lawyer will ask one or more potential sureties to testify on your behalf at your bail hearing. A surety is someone who is prepared to supervise the accused after they have been released on bail, to make sure they show up at their court appearances, comply with their bail release conditions, and do not commit further criminal offences between the time of their release on bail and the end of their trial. Essentially, a surety is responsible for supervising the accused in the community during the entire time that they are released on bail conditions. Assuming an accused breaches their bail conditions (such as not to communicate with the alleged victim or failing to attend court), a surety will be liable to forfeit a specific sum of money to the crown. An effective surety who is capable of supervising an accused on bail would usually be a family member, a close friend, or sometimes an employer.
During your bail hearing, your lawyer will try to provide the court with enough evidence and a specific plan for the surety to supervise you in the community to convince the court that you will attend future court appearances when ordered to, that you will not breach the terms of your release or commit a further criminal offence, and that you are not a risk to the safety of the public.
The Justice of the Peace Makes a Ruling
Most bail hearings in Ontario are conducted by a judicial official called a justice of the peace. However, judges have the ability to conduct bail hearings and occasionally do so. For example, for first-degree murder charges in Canada, the accused’s bail hearing must be conducted by a judge. Finally, after both the crown and your lawyer have presented all the necessary evidence, have made their closing submissions and presented any relevant case law, then the justice of the peace or judge will either issue a judicial interim release order or the person accused of a crime will be required to await their trial or resolution of their charges in jail. If the accused is not released on bail, they will have an opportunity to appeal the ruling by bringing what is called a bail review to a higher court level.
Contact a Criminal Defence Lawyer
After an arrest, it is important to quickly call an experienced and knowledgeable criminal lawyer to have skilled representation. At Kruse Law Firm, we specialize in criminal defence law. Our lawyers have the knowledge and experience to look for any holes or errors in the case against you. We work aggressively to help you avoid a criminal conviction and minimize the consequences of a criminal charge on your life. Contact us today at 1-800-699-0806 to arrange a free meeting and receive a quote.