TORONTO BAIL HEARING LAWYERS. 416-DEFENCE.

The ability to obtain bail is a crucial aspect of the criminal process. The right of a person charged with an offence not to be denied reasonable bail without just cause is protected in s.11(e) of the Canadian Charter of Rights and Freedoms.

Reasonable bail has been interpreted to include the terms of release, including the amount set for bail and restrictions on the accused’s liberty. The outcome of a bail hearing can have a substantial impact on the outcome of the charges. Accordingly, we treat this pivotal part of the criminal process the same as trial.

A bail hearing is a court appearance where a decision will be made about whether or not a charged person will be released from custody prior to trial. A bail hearing happens after arrest when an individual has been taken into police custody. Bail hearings can be held either on consent or they can be contested. A bail hearing on consent is when the Crown and defence agree on terms for your release and the judge approves this. A charged person is then released from custody pending trial on a recognizance of bail that often outlines a number of conditions that an individual must obey as terms of their release. In some of the most serious cases it is possible that the Crown and defence will consent to detention prior to trial.

A contested bail hearing happens when the Crown and defence disagree on release or proposed terms of release. A bail hearing will then be held where the Crown will announce its position and the grounds upon which it requests detention. The Crown will then either call witnesses or read in the police background about the accused. The defence will be given an opportunity to question any witnesses and to call witnesses to challenge or contradict the Crown’s position. If a contested hearing is held the result will be either:

1. The judge orders your release;
2. The judge orders that you continue to be detained.

The Firm has extensive experience in securing judicial interim release for complex Financial, Sexual and Violent Crimes. In it’s R. v. E.G. [2014], the Firm secured judicial interim release for one of Peel Regions largest Child Pornography busts. Nearly 500,00 images and over 400 videos were seized in a police raid. Further in its R. v. T.M. [2014], the Firm secured bail for Accessory to Murder in Downtown Toronto two days before Christmas.

The Firm has considerable experience securing judicial interim release for complex child sex offences, including sexual interference and sexual assault. In its R. v. A.B. [2018], the Firm secured a lenient judicial interim release where the accused had allegations of Making Child Pornography x3, Possession of Child Pornography x3, Sexual Interference x2, Sexual Assault x2, Invitation to Sexual Touching x2 and Voyeurism x2.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

Description: Jordan Donich provides commentary to AM900 CHML regarding Judicial Interim Release.

Description: Jordan Donich provides expert commentary to Global News regarding Extradition.

Legal Information

Frequently Asked Questions

Does Everyone Charged with a Criminal Offence Require a Bail Hearing?
Alternatives to Bail – Forms 9 and 10
On What Grounds can the Court Revoke Bail?
What are the Penalties for Violating Bail Conditions?
-Failure to Attend Court Dates
-Failure to Comply with the Conditions of an Undertaking or Recognizance
-Failure to Appear or Comply with Summons
-Failure to Comply with Appearance Notice or Promise to Appear
-Failure to Comply with Conditions of Undertaking

Does Everyone Charged with a Criminal Offence Require a Bail Hearing?

No. Whether or not you will require a bail hearing will depend upon the crime you have been charged with, the manner in which you were charged and background factors related to both the crime and the offender. In some cases, an individual may be charged but never taken into police custody. In these situations the offender will receive documentation stating that they have been charged with a criminal offence and indicating when and where they must appear in court. These situations however, are less common. More typically, an accused person will be arrested and taken into police custody for processing upon being charged with a criminal offence. In these situations the police will determine if the offender is to be released after being processed, or if they will be required to go in front of a judge for a bail hearing.

Generally, in cases involving less serious offences, where the accused poses no threat, the accused will be released from police custody the same day, without having a bail hearing. In these situations the accused will be issued either a Form 9 Appearance Notice or a Form 10 Promise to Appear. These documents will be discussed more in detail below. A Promise to Appear or Appearance Notice allows police to release an accused person from custody once they have been charged with a criminal offence and processed by officers. Both documents will indicate when and where the accused will next need to attend court.

In cases of more serious charges, or where the police feel that the accused may be a danger to himself or the public, or may be a flight risk, they may decline to release the accused person on a Promise to Appear or Appearance Notice, and may instead decide to hold the accused in custody pending a bail hearing. All accused persons are entitled to come before a Justice of the Peace and have a bail hearing within 24 hours of being taken into custody. The Crown will submit their position on whether or not the accused should be granted bail, so it is important to have legal counsel present during the bail hearing to argue for the release of the accused. Ultimately, the Justice of the Peace will determine whether or not the accused will be released from police custody in the interim, or whether they will be remanded to custody until the case has resolved or until the court orders otherwise. The Justice of the Peace will also dictate which conditions will be applicable to the accused’s release, should bail be granted.

Alternatives to Bail – Forms 9 and 10

As mentioned above, those charged with less serious crimes and those who pose no discernable threat to themselves or the public, may be released from custody following an arrest on either an Appearance Notice or a Promise to Appear.

A Form 9 Appearance Notice is a document that the police will give to an accused who has been arrested and charged with a crime and then released from police custody (generally the same day). The document will indicate that the accused has been released from police custody. It will also indicate the charge(s) that have been laid against the accused, as well as their personal information including their name, address, date of birth and the details of their next court date. The form will also indicate whether or not the accused will be required to attend a police station to provide finger prints and/or photographs (this will generally only happen when the accused has not already been taken to the police station following arrest).

Alternatively, an accused who has been criminally charged and is not being held for a bail hearing may also be released on a Form 10 Promise to Appear. Similar to the Form 9 Appearance Notice, this is a document given to an accused who has being arrested, charged with a criminal offence, taken into police custody and then released (generally the same day). A Promise to Appear is a document stating that the police have released the individual from custody and outlining the charge(s) that have been laid against that individual. It will also contain personal information about the accused including name, address and date of birth. Finally, the document will indicate when and where the accused must next appear in court and whether they will be required to appear at a police station for finger prints and/or photographs at a later date. An accused person will be required to sign the Promise to Appear document prior to being released. Should they refuse to sign the document they will not be released from police custody. Signing the Promise to Appear document means the accused is entering into a legally binding agreement with the courts, agreeing to attend court on the date indicated in the form. Failure to do so can and likely will result in a warrant being issued for the accused’s arrest as well as additional criminal charges being laid.

Unlike a Form 9 Appearance Notice, a Promise to Appear will likely come with conditions attached to it. The accused will be required to abide by these conditions for the duration of the case or until the court orders otherwise. The police will determine which, if any, conditions will be applied to the accused’s release and these conditions will be listed in another document entitled Form 11.1 Undertaking Given to a Police Officer. The police are afforded considerable discretion when determining which conditions to impose on an offender. The conditions that are imposed on a Promise to Appear are similar to those imposed on those accused who are released on bail after a bail hearing. By signing the Promise to Appear document, the accused is not only promising to appear for their next court date, they are also promising to abide by all of the conditions outlined in form 11.1. Failure to comply with the conditions listed in a Promise to Appear document can and likely will result in a warrant being issued for the accused’s arrest, and/or additional criminal charges being laid.

As with conditions applied to an accused at a bail hearing, conditions applied to an accused through a Form 10 Promise to Appear will depend on the severity of the crime, background characteristics of the accused and the circumstances in which the crime was committed. For example, if an accused is charged with an offence where alcohol was a factor, they will likely be ordered to refrain from consuming alcohol until otherwise indicated.

On What Grounds can the Court Revoke Bail?

If an accused fails to comply with the conditions of their bail it is possible that the bail may be revoked by the court. In this case the accused would be required to remain in custody until their case has been resolved or until ordered otherwise by the court. If the Crown has evidence that an accused has not complied with their bail conditions, the Crown may make a s. 524 application, also known as a revocation application, to the court requesting that the accused’s bail be revoked. If the application is approved, the court will issue a warrant for the accused’s arrest. Additionally, the accused will be charged with an additional criminal charge for failing to comply with their bail conditions.

In addition to a revocation application filed by the Crown, in cases where a surety was required (explained more below) bail may also be revoked at the request of the surety. A surety is an individual, well known to the accused, who agrees to supervise the accused while they are living within the community. As such, if at any point a surety believes the accused is violating their bail conditions or is going to violate their bail conditions in the future, the surety can report this to the court and have the bail revoked. At this point the court will issue a surety warrant for the arrest of the accused. The accused will need to turn themselves in to the police and will likely need to find a new surety to be released again.

Having bail revoked is a serious matter as it can lead to the incarceration of the accused for potentially extended periods of time. It is important to contact qualified legal counsel to represent you at all bail hearings. Additionally, it is important to always comply with all bail conditions unless directed otherwise by the court.

What are the Penalties for Violating Bail Conditions?

The penalties for violating bail conditions will vary depending on which condition was breached. Section 145 of the Criminal Code outlines the penalties associated with breaches of various bail conditions.

Failure to Attend Court Dates

Beginning with s. 145(2), the Code states that every accused who, “being at large on his undertaking or recognizance given to or entered into before a justice of the peace or judge, fails, without lawful excuse, the proof of which lies on him, to attend court in accordance with the undertaking or recognizance, or having appeared before a court, justice of the peace or judge, fails, without lawful excuse, the proof of which lies to him, to attend court thereafter as required by the court, a justice of the peace or judge, or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.” This means that if an accused fails to attend the court date listed on their bail documents, or fails to attend subsequent court dates, or fails to surrender themselves to the court when ordered to do so, they are guilty of violating s. 145(2).

Failure to Comply with the Conditions of an Undertaking or Recognizance

Section 145(3) of the Criminal Code outlines the penalties associated with failure to comply with the conditions of an undertaking or recognizance (bail). The section states “Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of an indictable an indictable offence and is liable to imprisonment for a term not exceeding two years; or an offence punishable on summary conviction”. If the Crown elects to pursue by summary conviction, the maximum penalty will be six months’ imprisonment and/or a $5,000 fine. This essentially means that if an accused fails to comply with the conditions outlined in their bail, they will be guilty of an offence under this section of the Code.

It is important to note that it is a lawful excuse to fail to comply with a condition of an Undertaking or Recognizance or to fail to appear at a time and place stated in an undertaking for the purposes of the Identification of Criminals Act if before the failure the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act.

Failure to Appear or Comply with Summons

Section 145(4) of the Criminal Code, outlines the penalties for failing to comply with a summons by the court. A summons is an order issued by the court to appear before them on a given date and time. Summons are often issued to those who are required to act as witnesses in a criminal matter. The Code states that “everyone who is served with a summons and who fails, without lawful excuse, the proof of which lies on him, to appear at a time and place stated therein, if any, for the purposes of the Identification of Criminals Act or to attend court in accordance therewith, is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or an offence punishable on summary conviction”. If the Crown elects to pursue by summary conviction, the maximum penalty will be six months’ imprisonment and/or a $5,000 fine.

Failure to Comply with Appearance Notice or Promise to Appear

Section 145(5) of the Criminal Code outlines the penalties for an accused’s’ failure to comply with an Appearance Notice or Promise to Appear. As stated in the Code; “every person who is named in an appearance notice or promise to appear, or in a recognizance entered into before an officer in charge or another peace officer, that has been confirmed by a justice under section 508 and who fails, without lawful excuse, the proof of which lies on the person, to appear at the time and place stated therein, if any, for the purposes of the Identification of Criminals Act, or to attend court in accordance therewith, is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or an offence punishable on summary conviction”. If the Crown elects to pursue by summary conviction, the maximum penalty will be six months’ imprisonment and/or a $5,000 fine. This means that if an accused fails to comply with any of the conditions listed, or appear for the court dates listed in either a Promise to Appear or Appearance Notice, they will be guilty of violating this section of the Code.

It is important to note that it is a lawful excuse to fail to comply with a condition of a Promise to Appear or an Appearance Notice or to fail to appear at a time and place stated in a recognizance for the purposes of the Identification of Criminals Act if before the failure the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act.

Failure to Comply with Conditions of Undertaking

Finally, section 145(5.1) of the Criminal Code outlines the penalties associated with an accused’s failure to comply with the conditions of an Undertaking. Subsection 5.1 states that “Every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of an undertaking entered into pursuant to subsection 499(2) or 503(2.1) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or is guilty of an offence punishable on summary conviction”. If the Crown elects to pursue by summary conviction, the maximum penalty will be six months’ imprisonment and/or a $5,000 fine.

Quick Facts

When can you be Denied Bail?

A person can be denied bail for a number of reasons. The Crown could argue the accused is likely to flee the jurisdiction and not attend court. The Crown could also argue the accused is a risk to public safety and must remain in custody to protect the public. In other cases where the charge is very serious and even if the accused has an appropriate plan of release, the Crown could seek to deny bail because it would be against the public interest to release the accused.

What Happens at a Bail Hearing?

A bail hearing is where an accused is brought before the court to determine whether or not they will be release. In some cases the accused can be released on their own, in other instances they may require a surety to post bail and agree to supervise them.

How much Money do you need to post for Bail?

The amount of money a person may be required to post will depend on a number of factors. Some of these may include the nature of the charge, whether the accused has a criminal record and if there is serious injury or a firearm used. In some cases a surety can simply pledge the money rather than paying it.

What is a Surety?

A surety is a person who has agreed to supervise the accused if they are released from court. Most of the time a surety is a close family member or friend the accused may have to live with. A surety has a number of important obligations they should be aware of before agreeing to supervise the accused for potentially a long time.

What happens if you are denied Bail?

Being denied bail can impact the perception of the accused before the court. Studies have suggested that an accused who is denied bail is more likely to be convicted. It's important to create the best plan of release possible to avoid being denied bail. If the accused is ultimately denied, they have the option to request a Bail Review.

Are Bail Hearings Public?

Yes. Bail hearings are open to the public and on record. Anyone can attend a bail hearing, even the media to report on proceedings. However, there are certain publication bans that can be ordered to protect the accused and complainant(s).

Toronto Emergency Bail Hearing Lawyers