Being charged with a criminal offence is a stressful and emotionally taxing experience. An arrested party can either be charged and released, or charged and held for a bail hearing. Section 11(e) of the Canadian Charter of Rights and Freedoms states that a “detained” party has the right to reasonable bail, unless there is a just cause why the party should be detained in custody.
Subsequent to being arrested, an accused party is transported to one of the Peel Police or Ontario Provincial Police detachments located throughout Mississauga or Brampton. Once there, the party is searched, booked, and in some cases interviewed. Prior to any type of questioning, the arrested party will be afforded an opportunity to speak to their own Brampton criminal defence lawyer. It is worth noting, that an arrested party has the right to remain silent, and police officers have a reciprocal duty of refraining from asking any questions until the arrested party has had an opportunity to speak to their lawyer.
At this point, one of two possible things can occur. The police can release the accused party from custody with specific conditions, or the accused party can be held in custody for a formal bail hearing. At the bail hearing a Justice of the Peace will determine whether the individual will be released on bail or detained in custody. The determination to hold an accused party for bail largely depends on the following factors: the type of offence that has been committed; whether the accused party is on any other releases/bails; whether the accused party is ordinarily a resident of Ontario; and finally, whether the accused party has a criminal record and a history of disobeying court orders.
There are three underlying principles that guide the decision whether or not to release a detained party. They are they known as the primary, secondary and tertiary grounds. These grounds can be found in the Criminal Code of Canada at Section 515 (10):
For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) Primary Ground: where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) Secondary Ground: where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, 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; and
(c) Tertiary Ground if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) 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.
If a loved one, family member or a friend has been held for a bail hearing, contact our office now. In order to ensure that the bail hearing process goes as smoothly as possible, it is crucial that you contact our office as soon as your loved one, family member or a friend has been arrested. Remember, once an accused party has been taken into custody, the lines of communication are essentially cut off, and as a result, it’s best to call us right away.
What does it mean to be a “Surety”?
When an accused party is held for a bail hearing, a “surety” is required to come before the court to demonstrate that they are capable of taking responsibility for the accused party. A “surety” is normally someone who is in a close relationship with the accused party. Often, a surety will be a spouse, parent, sibling, friend, co-worker, etc. The surety has two primary duties:
- Ensure that the accused party attends court as required
- Ensure that the accused party abides by all of the conditions of the bail
Examples of bail conditions (these are just some of the more common conditions)
- report at a certain time to the police
- remain within the territorial jurisdiction
- notify the police of any change of address, employment, or occupation
- abstain from communicating, directly or indirectly, with certain individuals
- refrain from attending certain locations
- deposit their passport
- comply with any other condition the court considers necessary to ensure the safety of any victim or witness
- abstain from operating a motor vehicle
- not to possess keys to a motor vehicle
- remain in your residence between certain hours
- reside with a “named person” (normally your surety)
- refrain from the consumption of alcohol
Is a Surety required to “deposit” money to the court?
Normally, a surety is not required to deposit money with the Court. Commonly, a surety will be required to show that they have the ability to pay a fixed amount if the accused party breaches their bail or “fails to attend” court. In other words, a surety will have to pledge that they have sufficient funds/resources that they could pay to the court if required.
The best way to describe it is that the surety pledges to pay money to the court if the accused party breaches the bail or fails to attend court. The matter is not that straightforward, as the accused party would first have to be convicted of the “breach” or “fail to appear”, and thereafter, the Crown would have to bring an “estreatment” proceeding in order to attempt to collect the money from the surety.
In more serious matters or matters where there is a higher “flight risk”, a cash deposit may be required. In these cases, a fixed amount is deposited with the Court. At the completion of the matter, the amount will be returned to the surety. If the accused party breaches or fails to attend court, and is subsequently convicted of the breach or fail to attend, the amount will be forfeited.
Our Brampton criminal lawyers are often asked questions in relation to “bail variations”. Often, there are terms and conditions of a release that are too onerous for a person to follow. For example, a condition that states “do not attend within 100 meters of 100 John Street”. An issue will arise if the person works at 98 John Street. Essentially, every time the person attends work, they will be breaching a condition of their release as 98 John Street and 100 John Street are within a 100 meters of one another.
In these types of scenarios, it crucial that the bail is varied to ensure that the person is not adversely impacted. It is important to note however, that not all bail conditions can be varied. There are some bail conditions that go to the root of the criminal charge, and as a result, these conditions cannot be varied. For example, in an assault case, there will be a condition that the accused party abstain from direct and indirect contact with the complainant. In such a case, it is normally not possible to vary the condition to allow contact between the two parties. Finally, the conditions of a release remain in place until the case is completed.
If someone you know has been arrested and charged with a criminal offence, please contact Passi & Patel – Brampton Criminal Lawyers now at (905) 459-0004 to arrange for a free consultation. We would be happy to discuss the matter in person, and arrange to have a criminal defence lawyer represent your friend or a loved one at their bail hearing.