A Successful Defence Starts with Bail.
A bail hearing is a critical point in any criminal proceeding. Success doesn’t just mean freedom; it also means the ability to work closely with your Toronto criminal lawyer to mount a strong defence.
The denial of bail, on the other hand, can exert enormous pressure on an accused person to plead guilty – even if they are innocent.
Defendants in this position can hardly be blamed: life in a correctional facility can be brutal, and trial dates are often months, even years down the road – well past the point of a fair sentence.
Despite its simple appearance, the law of bail is actually extremely complex. There’s good reason why jurists like Justice Trotter have written entire textbooks on it.
"A truly successful bail hearing is one which minimizes the risk of detention to an absolute minimum, and ensures that release terms are livable and fair."
Anybody – even non-lawyers – can pitch a decent argument about risk management or how good a surety is. But this is just the starting point of a thoughtful approach to bail.
A truly successful bail hearing is one which minimizes the risk of detention to an absolute minimum, and ensures that release terms are livable and fair. To do this, there must be careful planning, deep awareness of the case, a rich knowledge of the law, and the ability to foresee obstacles – from the eyes of the Crown and the presiding Justice.
Failure at any one of these levels can mean the difference between freedom and imprisonment.
Shayan Shaffie has conducted thousands of bail hearings as both Crown counsel and the defence. With a proven record of success, he will work closely with you to create a bail plan that increases your chances of release.
What is a Bail Hearing?
A bail hearing refers to a specific type of judicial proceeding.
After the police have laid charges and arrested a suspect, the Criminal Code of Canada grants them to power to release the accused. This can be in the form of an "Appearance Notice," for example, or a "Promise to Appear" with an "Undertaking".
In certain circumstances, the police may exercise their discretion not to release. Although the Criminal Code of Canada specifically limits these circumstances, in practise these limitations (or justifications not to release) are rarely referenced.
When the police decline to release an accused - either from the station or at the scene of a charge - the Criminal Code specifically requires them to bring the accused before a Judge or Justice of the Peace within 24 hours of arrest - or "as soon as practicable" thereafter. This language is found in s.503 of the Code.
503 (1) A peace officer who arrests a person with or without warrant...shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:
(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible [...]
Bringing an accused "before a justice" marks a pivotal point in any criminal proceeding: the point at which the judiciary begins to supervise the work of the police.
Up until this point in the criminal process, the police investigating a specific crime have largely operated unsupervised. With the exception of obtaining prior authorization for warrants and the like, they surveil, gather evidence, and arrest without their work being overseen. Requiring them to bring an accused person who has been arrested before a judge within 24 hours ushers a critical level of oversight into their work - and with admirable swiftness.
Practically speaking, why does this matter?
Because judges aren't police. In our adversarial model inherited from the Brits, their task is not to investigate crime but to find the truth and uphold the law. And one of the most important laws in Canada is the Canadian Charter of Rights and Freedoms. This document contains two important rights as it relates to bail: They extend to everyone in Canada.
The first is the presumption of innocence:
The second is the right not to be denied reasonable bail:
In the push and pull between the competing forces of "crime prevention" and "individual liberties," these two constitutional giants animate the entire law of bail. Remember: they are constitutional rights, which means they form part of the highest land of the nation. Higher than the Criminal Code, higher than police authority.
One of these rights asks: why should we detain people in custody if they are presumed innocent?
The other replies: we shouldn't, unless there is a damn good reason for doing so.
The judiciary is the body of government entrusted with enforcing these sacred laws. A skilled criminal lawyer is the whip that ensures nobody forgets them!
When the police decline to release an accused - either from the station or at the scene of a charge - the Criminal Code specifically requires them to bring the accused before a Judge or Justice of the Peace within 24 hours of arrest - or "as soon as practicable" thereafter.
Bringing an accused "before a justice" marks a pivotal point in any criminal proceeding: the point at which the judiciary begins to supervise the work of the police.
Consent Releases vs. Contested Bail Hearings
Once an accused who has been held for bail is brought to court (within 24 hours or as soon thereafter as possible), a Crown Attorney will review the file. The purpose of this review is to determine the position the proseuction will take concerning the accused person's release back into the community.
In short the Crown may, after their review, "consent" or agree to permitting the accused back into the community. In appropriate cases, they may "oppose" the release. Both of these positions triggers a variety of legal and procedural considerations for the accused and the lawyer representing them.
Criminal defence lawyers play an essential role in the preliminary review of a criminal file. In fact, a defence lawyer's involvement in the early stages of a file represents one of the most important benefits of retaining an experienced criminal lawyer at the bail stage.
In the absence of specific input from a criminal lawyer - about the accused, weaknesses in the case, or the strength of a proposed plan of release - Crown Attorneys see nothing but the file placed on their desk by police. These files often contain allegations at their most exaggerated, painting an unflattering picture of an accused person without having afforded them a fair trial. The police - who are tasked with investigating crime and laying charges - are also not as concerned with protecting an accused person's constitutional rights at the same level of a defence lawyer or even a Crown.
In short, a skilled criminal defence lawyer can transform a "no" to bail into a "yes", resulting in considerable time and even cost savings. Rather than languish in jail for days on end, risking a lost job or worse, an accused with strong representation can get their life back on track, and terms that are much fairer than what would have resulted without a lawyer's help.
a. Consent Release Bails in Detail
Except in unusual circumstances, a prosecutor's "consent" to release an accused all but guarantees their bail. In light of the presumption of innocence and the right not to denied reasonable bail (two important constitutional rights described above), judges will generally not interfere with a prosecutor's agreement to allow an accused person to await their trial in the community.
All that remains is for a brief court hearing where a judge or justice of the peace is informed of the case and asked to approve the bail as proposed. At the hearing, the Crown usually reads a copy of the police synopsis to the judge, and advises them whether a criminal record exists. In appropriate cases, additional submissions or argument may be made by the defence lawyer or the Crown. Finally, the proposed form and quantum (dollar amount) of release is canvassed, and, where one is contemplated, the proposed surety is vetted. (To learn more about what a surety is, read our in-depth article here).
What does it mean to "vet" a surety? In some jurisdictions - like Hamilton - this could mean testifying in open court. In others - like most downtown Toronto courthouses - it could involve a very brief volley of questions and answers without being sworn in or taking the stand. Still in other towns and cities, Ontario criminal lawyers will prepare an affidavit on the surety's behalf and submit this to the judge in place of any formal inquiry.
Once a judge or justice of the peace has been satisfied that a proposed release is appropriate and its terms have been satisfied, he or she will order the accused into the bail, or recognizance. This judicial (court) order constitutes a promise between the accused, their surety and the court to obey the terms and conditions set out and to attend court as required, or else risk losing the moneys promised. Naturally, an accused person who breaches a recognizance of bail also risks further charges.
Once the bail has been ordered, a return date for the case will be selected, the order will be drafted and printed, and the accused and his or her sureties will sign. On signing, the accused is "on a recognizance," - in other words, on bail.
"A skilled criminal defence lawyer can transform a "no" to bail into a "yes", resulting in considerable time and even cost savings. Rather than languish in jail for days on end, risking a lost job or worse, an accused with strong representation can get their life back on track promptly, and on terms that are much fairer than what might have resulted without the lawyer's help."
b. Contested Bail Hearings in Detail
Where a defence lawyer and the Crown are unable to reach a consensus about the release of an accused, the stage is set (legally speaking) for a contested bail hearing. Unlike a consent release, where the lawyers take charge and agree on the form, amount and terms of a release, a contested bail hearing let's a judge decide.
Contested bail hearings are also known as "show cause hearings" because it is usually the Crown that must "show cause" (or prove) why an accused person should be denied bail. This responsibility rests with the Crown, because of the twin constitutional rights we spelled out above: the presumption of innocence, and the right not to be denied reasonable bail without just cause.
In some cases, the responsibility is reversed. In these "reverse onus" situations, the accused must "show cause" why he or she should be released from custody. Reverse onus bail hearings typically arise because an accused person was already on some form of release when they were re-arrested and charged with additional offences. They can also arise due to the nature of the offences alleged: serious drug trafficking, or criminal organization offences for example.
A criminal lawyer will be able to advise you on where the "onus" rests in a given bail hearing, and how it can impact on the probabilities of success. As clients can imagine, the odds of detention are slightly elevated where it is the accused person's responsibility to satisfy the court why they should be released.
Regardless of where this "onus" it is to show cause, all contested bail hearings have one thing in common: a Crown Attorney who is trying to persuade the judge to keep an accused in custody.
Like consent releases, contested bail hearings trigger a judicial hearing. Unlike consent releases, however, these hearings are much more elaborate, protracted, heated - in a word, "contested".
A contested bail hearing invites the Crown and the defence lawyer to marshal evidence and legal argument to persuade a judge to either release or detain an accused. They typically begin by the Crown announcing the reasons, or "grounds", for their request to detain an accused; following which, the Crown will inform the court of the allegations, the prior criminal record, if any, and any additional information it thinks will help its case. In domestic violence cases, for example, it is not unusual for the Crown to inform the court that a domestic complainant is "fearful" of the accused, or to read her entire statement to the court as part of its case. In especially litigious bail hearings, the Crown may even call an officer acquainted with the investigation to give evidence and background on the case.
Once the Crown has completed its presentation, the defence is usually afforded an opportunity to ask questions about the case. The strength of a criminal case is always a factor at a bail hearing. Naturally, the weaker the evidence the more likely a judge will be to consider releasing the accused as they await a trial. A skilled criminal lawyer will use this as an opportunity to highlight triable issues in the evidence.
Once the defence has completed its initial comments, it will decide whether to call any evidence of its own. This typically involves examining one or more sureties. For more information on the role and responsibilities of sureties, read our informative guide here. The defence may also opt to call their own client as a witness - albeit, not usually to discuss the actual allegations. (There are strict limits on what can be asked of an accused at a bail hearing about the allegations. Your criminal lawyer will instruct you on this important issue.) If the client is called, they will usually be asked limited questions concerning their background and willingness to be supervised by the courts, a bail program, or their sureties.
A good criminal lawyer will spend adequate time preparing their witnesses. The more serious the charges, the more preparation. It is often said - albeit for convenience more than anything - that an accused gets "one shot at bail". There is only some truth to this. What is absolutely true, however, is that nothing is more disastrous to an accused person's chances of release than an unprepared surety. Unprepared sureties are the low hanging fruit of contested bail hearings, especially for the talented prosecutor.
When I was a prosecutor I relished the unprepared surety. I took satisfaction picking them apart, resulting in the detention order I wanted. I often remarked - privately, of course - that were I representing the accused I would never have called them as witnesses. Now that I run Shaffie Law, I don't - not until they are absolutely committed and prepared for the road ahead.
"A good criminal lawyer will spend adequate time preparing their witnesses. The more serious the charges, the more preparation. Unprepared sureties are the low hanging fruit of contested bail hearings, especially for the talented prosecutor."
The Crown is permitted to question each of the defence's witnesses. This form of questioning is known as cross-examination, and is much more focused, pointed, and suggestive than the types of questions a criminal lawyer can ask his own witness. It is during cross-examination that the true strength of an accused person's plan of release is revealed. If it has any, effective cross-examination will reveal its holes.
Once the Crown and defence lawyer have finished presenting their case, the judge hearing the bail hearing will invite "submissions" - argument based on evidence and the law. This presents yet another opportunity for the skilled defence lawyer to shore up support for his client's release. Effective advocacy draws a clear line through multiple witness testimony, combines this with a compelling interpretation of the facts, and ties everything together under a sound interpretation of the law. This is a skill only talented and experienced criminal defence lawyers possess.
At the conclusion of submissions, the judge will consider their ruling and decide whether and how to release the accused.
If the accused is released, the judge will select a suitable form of release and impose what she deems suitable terms and conditions. A return date will be chosen and the accused and his sureties will sign the release papers.
If the accused is detained, the judge will so order and invite his defence lawyer to select a return date - ordinarily by video, while the lawyer continues to review the case and negotiate with the prosecution.
Bail Hearings: Available Forms of Release
A great deal of emphasis is placed on "surety" release plans in Ontario. In my opinion, this has more to do with our province's legal culture than anything to do with the requirements of the law or our constitution.
Sureties bring peace of mind to prosecutors and cautionary justices. They are a "stand-in" for a police officer once the accused steps out of the prisoner's box - an individual who has solemnly vowed to monitor the accused in the community, and who stands to lose their hard-earned money if they don't.
In a province that has grown accustomed to passing the supervisory buck to sureties, the presumption of innocence has slowly paid the price. After all, why should an adult with no criminal history be required to live under someone else's supervision - let alone their house - if they are truly innocent until proven guilty?
Fortunately, there is judicial recognition that Ontario's courts may have been placing an over-reliance on sureties in the bail context. After all, Canada's bail law actually requires a judge to release an accused without conditions and without sureties unless the Crown can prove why anything more stringent is required. Given the presumption of innocence, that's a principle that makes perfect sense.
This "ladder principle" - where each step from less to more restrictive bail is the Crown's job to prove - is in the actual language of the Criminal Code. Also present in this section are the various forms of release.
Bear with me as I set out this fundamental section of the Criminal Code. The important parts (or parts most commonly referred to) are in bold.
515 (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.
Following so far? This section tells the judge who is hearing a typical bail hearing: "Judge, you must release this person right now and without any conditions unless the Crown can show otherwise."
The section continues (below): "If the Crown does convince you to 'climb the ladder' to a more restrictive release, here are the other forms available to you.
(2) Where the justice does not make an order under subsection (1) [to release the accused on an undertaking without conditions], he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.
There you have it. Canada's "bail ladder" fully unpacked.
To recap the essence of what you've learned so far:
Summary of Ontario Bail Hearings
1. When the police make an arrest, they can release the person at the scene, shortly thereafter (at the station), or hold them for a bail hearing.
2. If they hold an accused for a bail hearing, they must produce that person before a judge or justice as soon as possible, or within 24 hours.
3. Forcing the police to bring an accused person to court within 24 hours is an very clever way of keeping the police "honest".
4. Once an accused is brought to court, a Crown will review their file with or without input from a criminal lawyer hired by the accused.
5. After reviewing the file, the Crown will decide whether they will "consent" to the accused's release, or attempt to "show cause" why the accused should be detained in custody.
6. If the Crown consents to release, and the conditions for their consent can be met, a brief hearing is conducted and the accused is released.
7. If the Crown is opposed to release, the accused works with his criminal lawyer to put together a plan to present at a contested bail or "show cause" hearing.
8. At a show cause hearing, the Crown and defence lawyer both marshal evidence to support their respective positions, then the judge determines whether to release the accused and in what form.
9. It is, generally speaking, the Crown's duty to show why anything more than a simple promise to attend court is necessary.
10. If the Crown convinces the court to "climb the ladder", a variety of forms become available: a simple promise with conditions; a recognizance with conditions and a promise of money; a recognizance with conditions, a promise of money and one or more sureties to act as supervisors; a recognizance with conditions and a cash deposit; and, in appropriate cases, a recognizance with conditions, with sureties to act as supervisors, and a cash deposit.
11. In some cases, the "onus" is reversed and it is, in fact, not the Crown's duty to satisfy the court why a detention order or strict bail is justified. Rather, it is the accused's responsibility to demonstrate why they should be released. These types of bail hearings are called "reverse onus" bail hearings.
Bail Hearings: Frequently Asked Questions
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About Shayan Shaffie
Shayan is a graduate of the University of Toronto law school. He holds a Specialist B.A. with High Distinction in English, also from the University of Toronto. Apart from his native English, he speaks fluent Farsi, French and is conversant in Spanish.
Shayan was called to the Ontario Bar in 2011. His articles were completed at the Hamilton Crown Attorney's Office, where he also served as Crown counsel prior to establishing Shaffie Law. He has practised criminal law exclusively since his call.
Outside court, Shayan enjoys photography, rock climbing, and travel. Shayan is a former opera singer.