Getting arrested can be an intimidating and panic stricken experience. However, thanks to the presumption of innocence before proven guilty concept in the Canadian law, bail hearings are instrumental in such circumstances. When a person is bailed, a bail hearing occurs to decide if the individual accused will have to stay in the custody of the state until her trial date or whether she is allowed to go home until the trial date. Knowing the bail hearing timetable in Canada can help the family and the accused plan their affairs accordingly.
This guide provides a clear overview of the bail hearing process, starting from the time of arrest to the judge’s decision.
Step 1: Arrest and Police Detention
The first stage of bail occurs immediately after arrest. A person can be detained by police officers if they have reasonable grounds to suspect that the individual has been involved in a criminal offence or where they hold a warrant for the person’s arrest. After arrest the individual is advised of their rights and the grounds of his arrest including the right to consult with a lawyer.
Following a person’s arrest, the police determine whether the person may be released or kept in custody until a bail hearing. Released offenders, in some less serious cases, may be given conditional bail by the police without going to court while in more serious cases or where public safety is a concern, the offender may be kept in police custody until the bail hearing.
In this time the police also would obtain any information, complete forms and gather together the file for presentation in court.
Step 2: Preparing for the Bail Hearing
Prior to hearing, both the prosecution and defence carry out various pre-hearing administrations.
These preparations typically include:
- Examining the charges brought against the defendants.
- Looking into the defendant’s criminal history, if any.
- Gathering evidence applicable to the release decision.
- Call a lawyer to defend the alleged.
- Finding an appropriate surety, if needed.
Developing a release plan which shows a connection with the community, as well as current employment, family obligations or plans for study.
The defence lawyer could also collect documents that demonstrate the accused has a permanent home, a job or family support. Such information is provided in order to persuade the court that the accused will likely show up at the court dates to follow and abide by the release requirements.
Concurrent to this, Crown prosecutor considers if detention is warranted as per defences by law in Canada.
Step 3: The Bail Hearing Takes Place
The bail hearing is scheduled to occur in the majority of instances less than 24 hours following arrest or as soon as is practical where the court is not accessible. It is most often heard by a judge/justice of the peace.
Different from a criminal trial, at a bail hearing the court does not decide whether the defendant is guilty or not guilty. It only decides if the defendant should be released until trial.
During the hearing:
- The Crown prosecutor describes the grounds for detention.
- The defense can give the reasons for the release.
- There may be evidence and submissions by each side.
- The court takes into account the personal situations of the accused.
- Whether they would impose any conditions of release.
The court carefully considers three primary factors:
Whether the defendant is likely to appear at any future hearing.
Whether the accused’s release might constitute a danger to the community.
If it is appropriate to detain in order to sustain the public confidence in the fairness of the administration of justice
These considerations provide a safeguard for the use of detention only where they are legally justified.
Step 4: The Judge Makes the Bail Decision
The judge then considers all the evidence and arguments presented by the two sides and makes a decision as to whether or not bail should be granted
Upon receiving bail, the accused may be released without conditions, or under several conditions that are implemented in order to minimize the possible threats that may occur at the accused’s release. Typical bail conditions include reporting frequently to the police, staying within a certain area, avoiding certain people, hand in of travel documents, obeying a curfew, or abstaining from drugs or alcohol.
In certain instances the judge may order a surety-responsible person who consents to monitor the accused and make sure that the accused abides by certain rules and conditions of freedom. The surety can also put forward some sum of money which can be lost in case the accused on defending him in front of the court-basics the stipulated conditions of freedom.
If the judge feels there’s a reason for the detention from the legal point of view, bail will be refused. The accused will be in detention until the criminal prosecution is over.
When bail is refused, there may still be legal avenues open to the accused. In certain proceedings, the defence might move for the bail decision to be brought up for assessment by a superior court.
Step 5: After the Bail Hearing
The bail hearing is just one part of a criminal case. After the hearing is over, the case heads toward upcoming court dates, pre-trial conferences, and ultimately, a trial or other resolution.
Where bail has been granted, the accused must adhere to all the conditions set by the court, any breach of condition(s) may lead to:
- A night in jail for violating the previous bail.
- Other criminal charges.
- Refund of bail.
- Making it more difficult to secure bail in subsequent cases.
- There should be greater onerous conditions for a further release.
All those who have been released on bail should contact their lawyer regularly by phone or in person, show up to all scheduled court dates, and keep detailed records of adherence to all court orders.
If the accused is remanded in custody after the hearing, his or her defense counsel may use that time to further prepare the defence and consider what avenues of review through the law might be accessible to obtain a later release.
Final Thoughts
Timeline for a bail hearing in Canada will factor the rights of the individual accused while protecting the general public and ensuring the Justice system works. Through each stage of arrest and detention, to the court and ultimately the ruling of the judge, standard legal processes are followed to maintain fairness.
While most bail hearings take place shortly after arrest, the determination of whether bail will be granted is based on a number of factors including the nature of the offence being charged, the accused’s background, connections to the community and the evidence the Crown and the defence present against the accused. A clear knowledge of every stage in the process enables the accused and their family to manage and plan for the process more effectively-know when to expect each stage, prepare documentation, and communicate more effectively with counsel.
No matter whether bail is allowed or refused, securing legal advice quickly may be one of the most important protective steps you will take in understanding the Canadian criminal justice system.
