BAIL HEARING PROCESS

In most cases, a person who is held for a bail hearing will be taken to the courthouse in the jurisdiction where the offence was alleged to have taken place. Each courthouse in the GTA has a courtroom designated as ‘bail court’ where only bail hearings are conducted. Bail courts usually start at 10:00 a.m. and operate on Saturdays and holidays.

The bail hearing process is a critical stage in the life of a criminal charge, and it is very important to prepare properly for this process. Before going to the courthouse, it is ideal to meet with a lawyer to determine the plan of release for your person. This plan will almost always require suitable sureties.

A surety is a person who is willing to supervise the defendant if he/she is released by the court on bail. The surety will be responsible for ensuring that the defendant follows any conditions of bail, and as such, a suitable surety is someone who is able to control the defendant. Depending on the case it may be preferable that the defendant live with the surety if released.

The surety will likely be required to pledge an amount of money for the defendant’s release understanding that this money may be lost if the defendant is not properly supervised. In most cases the bail money is not deposited with the court, but the surety has to be able to show that they have that amount in assets.

The number of sureties that may be required for bail depends on many considerations including the defendant’s charges and the plan of release that is proposed by the sureties. It is important to have a lawyer who is able to advise you properly on the suitability of any proposed sureties that you may have.

The sureties will be required to attend at the courthouse for the bail hearing. If the Crown Attorney is asking the court to detain the defendant, then the sureties should be prepared to testify about their connection to the defendant and the plan for his/her release.

Just because a person is brought to bail court after their arrest does not mean they have to have the bail hearing on that day. The bail hearing can be postponed until everything is prepared and it is often advisable to do that if possible.

It is very important that the sureties at a bail hearing are prepared properly. Sureties are often subjected to questioning by the Crown Attorney at the bail hearing and it is essential to be prepared to testify. Well prepared sureties often make the difference in ensuring that a person gets bail. An experienced defence lawyer will be able to anticipate any problem areas that may be raised in relation to your bail plan and prepare the sureties to address these problems.

After hearing the sureties testify and listening to the arguments of the lawyers, the Court will decide whether to grant bail to the defendant. The Court will make the decision as to how many sureties are appropriate and how much money to attach to the bail. The decision of the Court at a bail hearing is governed by the principles set out in the Criminal Code of Canada and the case law on the issue of bail. It is important to have a lawyer who is able to effectively argue the legal issues at bail hearings.

If a person is denied bail they remain in jail until their case is dealt with in some way. However, a lawyer can bring an application in the Superior Court of Justice to review the denial of bail. This is a special application called a Bail Review.

There must be a basis in law for bringing a Bail Review and particular paperwork must be filed in the Superior Court detailing the basis for the application. Bail Review application materials include transcripts of the original bail hearing and affidavits sworn and signed by any proposed sureties. Once the material is filed in the court a date for the Bail Review is fixed. 

Given the size of a Bail Review it is imperative that you meet with a lawyer regarding this type of application. It may take up to two weeks to obtain all of the paperwork necessary to perfect a Bail Review and it is important to start the process early.