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Bail Hearings: A judicial interim release is commonly referred to as bail. This is essentially an order that releases you from custody until your trial after you have been charged with a criminal offence. If you have been placed in custody, the Criminal Code states you are entitled to a bail hearing within 24 hours of being arrested or “as soon as possible” if a justice is not immediately available. You also have a right to a bail hearing under the Canadian Charter of Rights and Freedoms. Bail often comes with conditions, such as abstaining from drugs or alcohol and keeping the peace. You may be expected to post a cash bond, or the court could ask for a surety to monitor you during your release. Although bail is federally regulated, each province or territory has its own guidelines. A bail hearing can be conducted in person, by phone or via videoconferencing.
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What Happens After I am Arrested?
Several things could happen when the police detain you after your arrest. Depending on the charge and your criminal record, you could expect to be released from custody on either a promise to appear in court or a recognizance. However, police may believe there is reason to think you should be held in custody until your trial. The Criminal Code ensures an accused has the right to have a timely bail hearing within 24 hours or as soon as a justice is available.
Under s.11(e) of the Canadian Charter of Rights and Freedoms, you also have the right to judicial interim releaseLegal term for bail following your arrest.
The principle of "innocent until proven guilty" is a fundamental aspect of the criminal justice system. This means that an accused person is only considered guilty once proven so through a fair trial. According to the Supreme Court of Canada (SCC), "the release of accused persons is the cardinal rule and detention, the exception. To automatically order detention would be contrary to the 'basic entitlement to be granted reasonable bail unless there is just cause to do otherwise.'"
What Happens During a Bail Hearing?
Bail hearings can be conducted in person, by videoconference, or by telephone and are presided over by a justice of the peace or a provincial court judge. The goal of the hearing is to evaluate whether there is a risk in allowing the accused to remain free in the community until their trial. It is important to note that a bail hearing is not a trial of the charges, and no determination of the accused's guilt or innocence will be made. However, some facts of the case will be entered into the record.
The Crown prosecutor may present evidence opposing the accused's release during the hearing, including a summary of the allegations and the accused's prior criminal record, if applicable. The accused will also have the opportunity to present evidence supporting their release.
When determining whether the accused is eligible for bail, the court will consider various factors, such as the likelihood that the accused will show up for their trial and whether their release would result in a loss of public confidence in the judicial system. Additionally, the rights of victims of violence are also considered in a bail hearing, and the court must decide whether conditions are needed to ensure the safety and security of any potential victims.
If the judge approves the accused's release, they may be required to follow certain conditions to ensure they pose no danger to the public. On the other hand, if bail is denied, the accused will be held in custody until their trial unless they appeal the decision and are granted another bail hearing.
Bail Conditions
If you are released on bail, a judge may require you to abide by certain conditions depending on the charges you face. If you fail to comply with these conditions, your bail may be revoked, and you could face stricter restrictions or be held in custody until your trial.
These conditions may include:
- electronic monitoring;
- a curfew or travel restrictions;
- surrendering firearms;
- reporting to police at certain times;
- abstaining from drugs or alcohol; and
- having no contact with certain people, such as the alleged victim or witnesses.
The conditions of your release may vary depending on the crime you have been charged with. For instance, if you are facing charges related to cyberbullying or cyber theft, the court may restrict your access to the internet. Additionally, your release may not require any financial obligation, or you may be required to post money upfront or make a promise to pay. If you fail to adhere to the conditions of your release, you may be held responsible for paying a portion or all of the pledged amount.
If you fail to honour the terms of your release, the Crown can ask the court to change the bail conditions or request it be cancelled. You can also request that the prosecutor change the terms of your release. Any variation would be at the Crown’s discretion.
What is a Surety?
A surety is a person who acts as a guarantee or pledge for another person's appearance in court. In the context of bail, a surety is someone who agrees to take responsibility for the accused person's compliance with the conditions of their release. The surety may be required to post money or property as collateral to ensure that the accused person will attend all court appearances and adhere to any other conditions set by the court. Before agreeing to your release, the court may insist on a surety. This person essentially takes responsibility for you while you are on bail, ensuring you show up for all court appearances and abide by your conditions.
A surety would be someone in regular contact with you, such as a close friend or a family member. This person must agree to report any breach of the conditions of bail and have financial assets to pledge security to the court if you violate the terms of bail. To act as a surety, a person must be over 18, a Canadian citizen or landed immigrant, and must not have been involved in the crime you are charged with. They should not have a criminal record or any outstanding charges. A surety can ask the court to be removed from this responsibility at any time, and in this case, you would be taken into custody.
What if I Violate my Bail Conditions?
Breaching your bail conditions is a crime, carrying a maximum sentence of two years in jail. When a breach occurs, the Crown must prove that you not only breached a condition of your release but you did it knowingly. That intent is important, as set out by the Supreme Court in R. v. Zora. In the case, the SCC ruled that for an accused to be found guilty of breaching bail conditions, they must realize the terms were being breached or know they are seriously risking it.
The case involved a man who was released on bail, with one of the conditions being that he had to be home at a specific time and come to the door within five minutes when someone knocked. Court was told police went to his door twice, and when he didn’t answer, he was arrested. The man claimed he was home but didn’t hear the knock, but a judge found him guilty of violating his bail.
The Supreme Court overturned the conviction, ruling that a person must do something against the law, called the actus reus A "criminal act" or guilty act. But the SCC stated that the person must also be aware of what might happen, having a guilty mind, or the mens reaHaving criminal intent, knowledge, or recklessness. The Supreme Court found the mens rea for the breach was subjective, and the court must consider what the accused knew or was aware might happen when deciding if a breach occurred.
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Glossary of Legal Terms
Actus reus
Latin for "guilty act" and one of the two elements of a crime the Crown must prove beyond a reasonable doubt to win a conviction.
Judicial interim release
Commonly referred to as bail, it is a judicial order that releases the accused from custody prior to trial. The release is unconditional unless the prosecutor shows cause to impose certain conditions.
Mens rea
Mens rea refers to having criminal intent, knowledge, or recklessness since the person is aware of their misconduct. The literal translation from Latin is "guilty mind." The Crown needs to show that the accused had mens rea to win a conviction.
