The lawyers at Daley, Byers are committed to providing the complete service for their clients. This includes emergency bail hearings including attendances at bail court on weekends. In addition, the firm is often called upon to obtain a client’s release from custody on less than 12 hours notice. At Daley, Byers, it is our job to limit the restrictive bail provisions imposed upon release from custody. We will protect your civil liberties and safe-guard the fundamental principles of liberty and freedom of person.
What is Bail?
In Canada the common use of the word “bail” is in legal terminology referred to as “judicial interim release”. Judicial interim release is the basis on which an accused is compelled to attend court and the means of control over behavior and liberty pending completion of the criminal process. In almost every case the law requires that the accused person must be released pending trial unless the Crown Prosecutor can show cause that the detention of the accused in custody is justified. In some instances the justice will release the accused from jail with restrictive conditions and a surety to assist with the supervision of the accused in society. The surety will pledge an amount of money (without deposit) which is subject to estreat should the accused breach the conditions of release. A cash deposit it also available (or required) in some cases.
Reasons why having experienced Counsel is important at a bail hearing
- A lawyer may be able to speak with the police and negotiate your release from custody at the police station without the need for a bail hearing.
- A lawyer can help ensure that your bail hearing proceeds as soon as possible and that you are not detained any longer than necessary.
- If you are held for a bail hearing, your lawyer will negotiate with the police and Crown attorney to try to secure reasonable conditions for your release. Without the assistance of effective counsel you may be subject to unnecessary and restrictive conditions of release, including house arrest, curfew, or impractical reporting conditions.
- If a contested bail hearing is required, your lawyer will ensure that any proposed sureties are appropriate and will help prepare them for the types of questions that are likely to be asked at the hearing. It is extremely important that any proposed surety is well prepared before the hearing, as it could make the difference between your detention and your release.
- Your lawyer will work with your sureties to come up with a plan of release that likely to satisfy the court. Your lawyer can help to secure assessments and treatment for alcohol or drugs, or arrange for some form of counseling. Not only will such treatment be valuable when it comes to resolving your case, but arranging a treatment plan in advance may be key to securing your release and avoiding a detention order.
- If necessary, your lawyer can arrange to have witnesses attend court and provide evidence at the bail hearing. This can help to identify weaknesses in the Crown’s case and make your release from custody more likely
What is a Surety?
A surety is a person who comes forward and agrees to supervise the accused if they are released from custody. A surety essentially acts as the “jailor” for the accused person, ensuring that they attend all court appearances and making sure that they abide by all of the conditions of their release, such a curfew, treatment, or requirements that they not communicate with certain persons or attend certain locations. A surety may be required to pledge an amount of money to the Court to secure the release of an accused person. In most instances, the surety will not be required to deposit money with the court, but will need only to satisfy the court that they have the financial resources to satisfy the amount pledged should the accused person breach the conditions of their release. The amount of money required will depend upon the individual circumstances of each case, having regard to the nature of the charge, the criminal history of the accused and the individual circumstances of the surety.
In order to be allowed to act as a surety a person must be able to meet certain qualifications:
- A surety must know the accused person and a relationship with the accused such that they will be able to effectively supervise and enforce the conditions of release.
- A surety should not, as a general rule, have a criminal record.
- A surety must not already be acting as a surety for someone else.
- A surety must not have been involved in the criminal offence giving rise to the charges faced by an accused person.
- A surety must be able to show that they have the financial resources to meet the amount of money that they are required to pledge.
Restrictive Provisions in Bail Release Orders:
The Court is entitled to order restrictions on the freedom of an accused if they are released. These restrictions will vary from case to case depending on the circumstances, but the Crown Prosecutor may request terms that are excessive.
Potential restrictive provisions on bail release may include:
- to remain within a territorial jurisdiction,
- to reside with their surety or at an address approved of by their surety
- to notify the officer of any change of address, employment, or occupation,
- to abstain from communicating directly or indirectly with certain individuals,
- to abstain from attending certain locations,
- to deposit their passport,
- to abstain from possessing any firearm and to surrender any firearms licenses,
- to report at certain times to the police,
- to abstain from the consumption of alcohol or other intoxicating substances,
- to abstain from the consumption of drugs except in accordance with a medical prescription.
An accused person who fails to comply with the conditions of their bail may face additional criminal charges and may have a difficult time being granted bail. A surety who fails to adequately supervise an accused may be sued by the Crown for the full amount of money that they pledged.
Forms of Release
If the court is satisfied that the accused should be released, there are a number of options available, including an Undertaking, a Recognizance Without Sureties and Without Deposit, a Recognizance With Sureties and Without Deposit, and a Recognizance with Deposit.
A basic undertaking only requires the accused to appear in court as directed by the undertaking. An undertaking may also impose other conditions, such as to abstain from the consumption of alcohol or not to possess any weapons.
A recognizance requires an accused to follow certain conditions with a financial penalty if they are not followed. The recognizance can be for any amount the court determines would be appropriate based on all of the circumstances (the accused’s financial situation, the circumstances of the offence, the likelihood of the recognizance not being complied with, etc.).
The court may require that sureties be added to the recognizance in order to help ensure compliance. Sureties are jointly and severally liable for the amount of the recognizance.
If the accused is not an ordinary resident of the province where they are in custody, or they do not ordinarily reside within 200 kilometers of where they are in custody, the court can require that they deposit a sum of money or valuable security, which they will not get back until their matter is disposed of. Sureties are an option in this situation.
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Contact your Daley, Byers team today for your free consultation. We know your rights and we will fight to protect them.