Section 11(e) of the Canadian Charter of Rights and Freedoms states: “Any person charged with an offence has the right not to be denied reasonable Bail without just cause.” Bail is one of the most crucial steps in the criminal process. An individual that is denied Bail will be held in custody pending an appeal of that decision or until the case is completed, which could take months if not years. It is crucial that an arrested person who is held for a Bail hearing takes all the necessary steps to ensure that they are released. At Passi Patel – Criminal Lawyers, we are available 24 hours a day, if you, a family member, a friend, or a loved one requires immediate assistance.
Brampton Bail Hearing Lawyer
What is a Bail Hearing?
Bail hearings take place before a Judge or a Justice of Peace to determine if an accused should be released from custody pending their trial. For many serious criminal charges, a Bail hearing will almost always take place. In most cases, the Crown Attorney must “show cause” (i.e. demonstrate) why the accused should be detained in custody. For more serious criminal charges and those occasions when an accused is already on a release, the hearing may be considered a “reverse onus” A “reverse onus” Bail hearing means the accused must demonstrate why they should be released from custody.
Section 515 of the Criminal Code of Canada
This section of the Criminal Code of Canada addresses many of the relevant considerations regarding Bail. Before releasing an individual who has been held in custody, there are a number of factors that are taken into consideration. First, the Court must determine who carries the “onus” (as referred to above). Typically, the Crown will have to “show cause” why a person should be held in custody. However, there are circumstances where the accused party must demonstrate why their release is justified (reverse onus). Section 515(10) of the Criminal Code of Canada sets out three grounds under which an accused party may be detained. These are commonly known as the “primary”, “secondary”, and “tertiary” grounds.
Section 515(10)(a) of the Criminal Code of Canada provides that a person’s detention may be justified “where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.” In other words, this ground aims to ensure that the person comes to court and does not leave the jurisdiction or country.
The Secondary Ground
Section 515(10)(b) of the Criminal Code of Canada provides that a person’s detention may be justified:
“where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.”
However, just because a person is likely to reoffend does not mean that detention will always be ordered. In R. v. G.D.,  O.J. No. 2228, the Court affirmed that:
[The applicant] does not have to show that he is unlikely to ever reoffend under any circumstances or for all time, but only to establish that the risk of his reoffending in a way that would jeopardize public safety can be reduced to tolerable levels during the time he will be on Bail by the restrictions and supervision he will be under as provided in the Bail order.
The Secondary ground considers whether there is a “substantial likelihood” that a person will commit further criminal acts if released from custody, or will tamper with witnesses or evidence. In determining this, the Court in R. v. G.P.,  O.J. No. 2389, stated that whether or not detention is warranted on the secondary ground “does not only depend on the accused’s personal characteristics but must also take into account the proposed plan of release and whether it sufficiently reduces the likelihood that the accused will commit further offences”.
The secondary grounds must also be balanced against time already spent in custody. In R. v. G.P.,  O.J. No. 2389, the Court acknowledged that where there are strong secondary ground concerns and a sentence at the lower end of the range is possible but unlikely, “the court may conclude that detention remains necessary. At the same time, in many cases the fact that the accused has spent time in presentence custody may alleviate secondary ground concerns to some extent.” In that case, the Applicant had already spent approximately 8 months in custody. The Court will usually treat each day as 1.5 days, so the Applicant had effectively been in custody for 12 months. Even though the Applicant had a lengthy criminal record indicating he had previously been willing to commit offences while out on Bail, the Court granted the application for release on a recognizance with his mother as a surety.
The Tertiary Ground
The tertiary ground is infrequently invoked, and is relied upon only in a narrow set of circumstances. Section 515(10)(c) of the Criminal Code of Canada states a person’s detention may be justified where:
“the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:
- the apparent strength of the prosecution’s case,
- the gravity of the offence,
- the circumstances surrounding the commission of the offence, including whether a firearm was used, and
- the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.”
The tertiary ground is relied upon most often in more serious cases such as homicide, firearms, and large scale drug enterprises. Cases that involve the tertiary ground are, by definition, very serious, and require the immediate assistance of an experienced criminal defence lawyer.
As recognized in R. v. G.D.,  O.J. No. 2228, the tertiary ground is conceptually different from the primary and secondary grounds. Whereas the latter two are concerned with the behaviour of the accused—i.e. the probability that the accused will not show up in court, or the probability that the accused will commit further offences—the tertiary ground is concerned with public perception. This balancing between the focus on the accused’s characteristics and the public confidence can be tricky: “there is not necessarily a direct correlation between detention and the maintenance of public confidence. In some cases, detaining an accused without justification will undermine public confidence”.
In R. v. Jaser,  O.J. No. 4423, the Court recognized that in respect of the four factors listed above, that in most cases, “if all four factors clearly favour detention, Bail will be refused on the tertiary ground, especially if the accused has the onus to show cause why he should be released”. However, the Court also recognized that beyond those four factors, the presiding justice must also take into account all of the relevant circumstances, including the personal circumstances of the accused, and any significant pretrial custody flowing from delay in the accused’s trial. In balancing the relevant circumstances with the four main factors, the balance struck “must reflect the law’s commitment to the fundamental principles of the presumption of innocence and the entitlement to reasonable Bail”. In R. v. Jaser,  O.J. No. 4423, the Applicant was convicted of terrorism-related charges, but was granted leave to appeal. During the time before the next trial, he was detained under the tertiary grounds. The Judge hearing his application for Bail was not convinced that the Applicant no longer held terrorist views, but accepted that he had undertaken rehabilitative steps. Ultimately, the Judge concluded that while the Applicant posed a risk to the public, his proposed plan of release was sufficient to address those concerns: the Applicant had four sureties in the total amount of $310,000.00, and was to reside at his mother’s house under a strict curfew. The sureties also had to provide updates to the Court as to the Applicant’s activities every single day.
What is a Surety?
When an accused party is granted Bail, they often require a “surety”. A “surety” is typically a friend or family member that has a close relationship with the accused party. The “surety” will undertake to supervise the accused party, and further, will pledge a certain amount of money or security. The purpose of the surety is to ensure that the accused party attends court, abides by conditions as set out in their release, and report the accused party to the Police if they fail to comply with their conditions. Sureties play one of the most important roles in the Bail system, and will often determine whether an individual is granted Bail. At the outset, in order to be a surety:
- You must be a Canadian citizen or a permanent resident
- You cannot be a surety for more than one person at the same time
What are “Bail conditions”?
“Bail conditions” are rules that the accused must follow once released on Bail. These conditions vary from situation to situation. Some examples of Bail conditions are as follows:
- Not to leave the country.
- To surrender any passport.
- To reside at a specified address.
- To abide by a curfew.
- To keep the peace, and be of good behaviour (i.e. not to commit any further criminal acts).
- Not to attend certain places, or to stay away from specific addresses (e.g. in domestic assault cases: the matrimonial home).
- Not to communicate with specified individuals (e.g. spouses or witnesses)
- Not to possess any weapons.
- To report to the police (weekly, monthly, etc.).
- To abstain from the consumption of alcohol or drugs.
- Not to sit in the front seat of a motor vehicle.
If an accused fails to follow a condition of their release, they can be arrested for “Failure to Comply” and brought back to court for another Bail hearing. In these circumstances, the court may cancel their prior release, and impose more stringent conditions if the accused party wishes to obtain a new release. Being charged with “Failure to Comply” is a serious matter, as this offence is considered a breache of a court order.
Why Hire Passi Patel – Criminal Lawyers?
As experienced Brampton Criminal Lawyers, we understand and recognize that Bail is one of the most important steps in defending a criminal charge. If an individual is presently being held in custody, we can ensure that a Bail hearing is held as soon as possible to minimize the amount of time that the person spends in jail. Further, when an accused party is released, we try to ensure that unnecessary Bail conditions are not put into place. Often, conditions that restrict an individual’s movement such as house arrest, curfews and reporting, can have an impact on one’s employment and family life. At Passi Patel, our Brampton Criminal Lawyers will go above and beyond to ensure that your release is not burdened by unnecessary and overly restrictive conditions.
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