BAIL LAWYERS IN TORONTO

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TORONTO BAIL LAWYER

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.

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

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

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
Who has the Onus of Proof at a Bail Hearing?
What is a s.524 Reverse-Onus Bail Hearing?
Are some Offences Always a s.524 Reverse-Onus?
How does the Court Determine who to Release on Bail?
On What Grounds can a Court Deny Bail?
What is a Surety?
What are some Potential Conditions of Release?

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.

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.

Who has the Onus of Proof at a Bail Hearing?

Generally, the Crown has the onus of demonstrating to the Justice that an accused should be detained in custody prior to trial. The Charter of Rights and Freedoms guarantees that any person charged with an offence has the right not to be denied reasonable bail without just cause. Therefore, the onus is on the Crown to demonstrate “just cause” if the Crown believes an individual should be detained.

However, in certain situations the onus will be reversed and the accused will have to demonstrate why he or she should be released from custody prior to trial. These exceptions will be discussed in further detail below.

What is a s.524 Reverse-Onus Bail Hearing?

Section 524 of the Criminal Code sets out that where an accused has been arrested while on interim release for contravening that summons than the judge should cancel the interim release order and detain the accused in custody, unless the accused shows cause why his detention in custody is not justified under Section 515(10) of the Criminal Code.

The “reverse onus” situation described in Section 524 puts the onus on the accused to demonstrate why he should not be detained. This idea is contrary to the majority of bail hearings where the onus is on the Crown to show cause for detention.

Reverse-Onus Bail Hearings are not limited to situations where an accused is re-arrested while on interim release. There are a number of other situations where this standard applies, which will be discussed below.

Are some Offences Always a s.524 Reverse-Onus?

Yes, some offences will always attract a reverse onus standard, leaving the obligation on the defence to demonstrate why an accused person should be released prior to trial. Some offences, which always attract a reverse onus standard, include:

  • Section 522 sets out that Section 469 offences, including treason, murder, piracy, accessory to murder or treason and any attempts to commit these listed offences, attract a reverse onus bail hearing.
  • Any offence listed in Section 515(6) of the Criminal Code, including:
    • Offences committed after being released in respect of another indictable offence;
    • Offences committed for the benefit of a criminal organization;
    • Terrorism offences;
    • Certain weapons and firearms offences;
    • Trafficking of narcotics.
  • Any offence committed while on interim release.
  • Any indictable offence committed by an accused not ordinarily a resident of Canada.

How does the Court Determine who to Release on Bail?

There is a presumption in favour of granting bail, unless the Crown can show just cause for why an individual should be detained. However, as discussed above, in certain cases that presumption is reversed. Therefore, in most cases the court must release you on reasonable and fair terms, unless there is just cause to detain you.

There are a number of factors that judges will consider when deciding whether or not to grant bail. The most important consideration is whether the Crown is opposed to bail and has demonstrated just cause to detain you. In most cases, bail decisions are about coming to agreeable terms for the accused to be released on. The three most important considerations for a court are:

  • Whether there is a risk you would miss a future court date;
  • Whether there is a risk you would interfere with witnesses or evidence;
  • Whether there is a risk you will commit another offence while on bail

The judge may also consider any other factors that are relevant in the circumstances. Common considerations include:

  • Seriousness of the charge;
  • Strength of the Crown’s case;
  • Past criminal record;
  • Whether you have a history of committing offences while on bail;
  • When your next court appearance is;
  • Employment;
  • Family circumstances;
  • Available housing and oversight.

On What Grounds can a Court Deny Bail?

Section 515 sets out that detaining an accused person in custody is only permitted on one or more of the following grounds:

  1. Where detention is necessary to ensure an accused person will appear in court;
  2. Where detention is necessary in the interests of public safety
    1. The apparent strength of the Crown’s case;
    2. The gravity of the offence;
    3. Circumstances surrounding commission of the offence, including whether a firearm was used;
    4. The fact that if convicted the accused would be liable for a lengthy period of imprisonment or a minimum sentence.  Where detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including:

Therefore, for the court to deny bail they must be satisfied that detention is necessary based on one or more of the above factors only.

What is a Surety?

A surety is a person who comes to court and makes a promise to supervise an accused person while they are out on bail. A surety is responsible for making sure an accused person comes to court when they are required to and that they follow the conditions of their release. Often times a surety will have to guarantee a significant amount of money to secure the release of an accused person. In some cases, a cash deposit will be required. If an accused person then violates their bail while under the supervision of the surety, it is possible the court will go after the surety for the money they have guaranteed.

A common condition of release is often that an accused person will obey the rules of his or her surety. It is also common for the court to require you to live with your surety.

What are some Potential Conditions of Release?

When a court decides to grant bail to an accused person, they attach conditions to the recognizance of bail that the accused person must follow. Failure to comply with bail conditions is itself a criminal offence.

Bail conditions vary greatly depending on the severity of the crime charged and the risks posed that specific offender. Bail conditions are often offence-specific. For example, if an individual is arrested for an offence involving alcohol, the bail conditions will often preclude an individual from consuming alcohol; or if the offence involves a particular complainant, the bail conditions will almost always include a condition prohibiting an accused person to contact the complainant. Some examples of common bail conditions include:

  1. Report to the police weekly sign the required Police Attendance Record.
  2. Reside at a specific address with your surety. Do not change your address without prior court ordered bail variation.
  3. Notify the police of any changes in your address within 24 hours of such change.
  4. Abstain from communication with the complainant in any way, either directly or indirectly. You are to remain ___ meters away from their person, place of residence, schooling and/or employment.
  5. Abstain from the use of and/or possession of alcoholic beverages.
  6. Abstain from the use of and/or possession of illicit drugs.
  7. Curfew: do not be away from place of residence between certain hours.
  8. Keep the peace and be of good behavior.
  9. To abstain from communication with any person with a criminal record.
  10. Restrictions on entering certain premises or geographic areas.
  11. Obey the rules and regulations of your surety.
  12. Abstain from acquiring, possessing or carrying any weapon.
  13. Deposit passport with the police.

416-DEFENCE | 416-333-3623

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