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What Does The Court Consider During The Bail Hearing?

In the bail hearing, the court will be required to ‘show cause’ why the accused should be denied their right to be released from custody on bail. The presiding trier (typically a justices of the peace) will be guided by the Bail Reform Act of Canada during the bail hearing. He/she will be considering.

  • Is the accused likely to commit the criminal act again if released from custody?
  • Is the accused well known to the justice system or the police (can the accused be easily traced if he/she fails to honour bail)?
  • Has evidence required for the trail been obtained (is the accused likely to interfere with evidence or the gathering of new evidence)?
  • Will the accused be required to return to court later at trial?

It is the responsibility of the Crown Attorney and the police to prove to the judge that the accused is a flight risk, that he/she is likely to commit a crime again if released, or that he/she may interfere with evidence or prevent the gathering of fresh evidence. 
If the charges are for a serious criminal offense or involve repeated offences, the bail hearing may be considered a “reverse onus”. This means the onus to prove why the accused should be released on bail is no longer on the crown attorney and the police but on the accused and his/her lawyer.
The most common situations where reverse onus applies are if the accused had been released on bail and is now facing new, unrelated criminal charges, for allegedly failing to follow the bail conditions; also, if the accused is being charged with a drug offence involving sale of drugs or any other serious offence that the judge, in his/her discretion, considers should warrant a reverse onus.

What Happens On The Day Of The Bail Hearing?

A Justice of the Peace will preside over the bail hearing, which will be held in a courtroom. On one side of the hearing will be the Crown Attorney, who will represent the police, and on the other side will be the accused (and/or his lawyer or duty counsel). Two types of arguments will be made.

  • The Crown Attorney will explain to the Judge why the accused should be denied bail, while the accused or his lawyer will make a counter-argument.
  • The Crown Attorney may determine that bail ought to be given, but will ask the court to impose bail conditions, such as limited movement and reporting to the police on a regular basis. The accused or his lawyer counsel will argue that the accused with obey bail conditions on his/her own, or with the assistance of a surety or sureties supervising them and may make arguments for flexible/lenient bail conditions.

To present its case for denial of bail or imposition of bail conditions, the Crown Attorney will present the allegations, mostly by reading the allegations as captured in the police synopsis. The Crown may call a witness or witnesses such as the police officer investigating the case to back the allegations presented. Heresay evidence may be read in, and challenged.
The accused person or his lawyer gets to counter the evidence presented, mostly by having the accused, a potential surety, or both testify.
The judge will then decide to either release the accused on bail or to deny him/her bail, giving reasons for either reason.

Understanding the Bail Hearing and Bail Review Process

Under Canadian law, a person charged with a criminal offence may be released before trial or sentencing by a peace officer or by the courts (officially known as judicial interim release).

If the offence is a summary conviction offence, one that is within the absolute jurisdiction of a judge of a provincial court, or a hybrid offence, and if the peace officer is satisfied there is no need to preserve or secure evidence, prevent commission of an offence, prevent continuation of the offence, he/she can issue an appearance notice directing the accused to appear in court on a particular date for mug shots and the taking of fingerprints.

If not released by the police, the accused should be brought before a justice of the peace or a provincial court judge within 24 hours of the arrest and if a justice is not available, as soon as possible. Note there is an exception for offences falling under section 469 of the Canadian Criminal Code (treason and murder).

Bail Hearing

It is illegal, under the Canadian constitution, to deny an accused person reasonable bail without a just cause. Getting released on bail allows you to concentrate on your defense and it prevents disruption to your social life and your job, keeping in mind trial can take months and even years.

You should hire a lawyer because he/she will have the training and experience necessary to not only get you out on bail but to also get you out quickly. At Costa Law Firm, we have been helping clients get reasonable and quick bail for several years now.

The law gives latitude for the court to deny bail where there is public safety at risk. We will argue your case in the bail hearing, no matter the reasons given by the prosecutor for denial of bail.

If the Crown prosecutor argues that you are a risk to the public or a flight risk, we will put up arguments to the contrary.

If the court releases you on bail, it can require you to comply with one or more of these conditions:

  • Report to a police station at a certain time
  • Remain within a certain territorial jurisdiction
  • Notify the police of any change of occupation, employment, or address
  • Deposit your passport
  • Stay away from certain locations
  • Keep your distance from certain individuals

In our arguments, our criminal lawyer Toronto will try to keep the conditions as flexible as possible.

Bail Review

Although the general rule is that you must remain in jail if your bail is denied, the Bail Review process gives you a chance to still get out. At Costa Law Firm, we assist clients with Bail Reviews. The judge could either release you or confirm the prior order.

If the circumstances have changed materially since you were detained to such an extent that, if a judge were to listen to the bail hearing today, he’d arrive at a more positive conclusion, we will make this argument in the hearing.

Judges make mistakes too. If such a mistake led to the denial of bail, we will point this out.

Note that the Bail Review could also be sought by the Crown prosecutor if you have been released. In such a case, we will put up a spirited fight to confirm the prior order.

Call us today on 416-535-6329 to talk to a criminal defence lawyer Toronto for all your bail hearing and bail review needs.

Evelyn Burnette
Evelyn Burnette
06:08 12 Mar 18
We have a family business and one day we found ourselves in a legal situation in which we felt completely overwhelmed and helpless. We quickly realized there’s a whole different world out there that we know nothing about. Reached out to David and he quickly wrapped himself around our case. We know he was working around the clock. In a matter of days, we had a solid argument. He is sharp, candid and a true professional. Not sure how an attorney can help a client ANY better. Absolutely no hesitation recommending him.
Julia Austerlitz
Julia Austerlitz
00:15 10 Mar 18
When I was looking for a divorce lawyer, the most important thing to me was finding someone who would be easy to communicate with. I was anticipating a nasty custody battle and the last thing I wanted was a lawyer who was hard to get a hold of or who didn’t make me feel like my case was a priority. David Costa and Robin Mann were exactly what I was looking for. They responded quickly to all of my emails, took all of my concerns very seriously and above all, is very knowledgeable about family law. This was such a difficult phase of my life and they helped me to get through to the end of it with the best possible outcome. I highly recommend this law firm.
Ben Valencia
Ben Valencia
12:47 09 Mar 18
Mr. Costa and his wonderful assistant couldn't have been anymore professional. It's unfortunate I had to meet them under these circumstances but I wouldn't have chosen anyone different to represent me if I could. They’ve always kept me up to date on things I needed to get done and both were available when I had questions. They are first class in my book.
Daniel Hardison
Daniel Hardison
06:56 09 Mar 18
Have utilized David's services several times over the last five years. He always is quick to respond (even when he was on vacation), knows the real estate business inside out. His expertise always gives me the confidence the deal is done right.
Kate Miller
Kate Miller
20:08 13 Dec 17
Costa Law were a tremendous help in solving my legal issues. David and his team were professional, efficient, thorough and compassionate. Everyone involved capably assisted me in understanding the issues and the possible outcomes. I could not be happier with the results and would encourage anyone needing legal help to contact them. Best law group in the town. Thanks to everyone at Costa Law!!!
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