‘Bail’ is the common term for what the Criminal Code calls ‘judicial interim release’, one of several ways in which an accused can avoid waiting for trial in custody. In less serious cases, an accused may be compelled to attend court by the issuance of a Summons, or released on an Appearance Notice or a Promise to Appear and an Undertaking, sometimes called ‘police bail’, which imposes conditions of release in order to protect the public and/or ensure that the accused will attend court to answer the charge(s).

Bail in the form of judicial interim release under section 515 of the Criminal Code is required where police do not see fit to release the accused. In such cases police are required to bring the accused before a Justice for a bail hearing, also known as a ‘show cause’ hearing, to determine if detention in custody is necessary to protect the public and/or ensure that the accused will attend court.

As a matter of theory and public policy, this is a juncture in the criminal process where one might wrestle with the apparent contradiction between the presumption of innocence and the state’s authority to incarcerate an individual before any proof of guilt has been given. A starting point in the legal literature on these issues would be R. v. Pearson^[1], and R. v. Morales^[2]. Put beside other sources on the topic^[3], these extraordinarily well reasoned cases demonstrate among other things that the legal literature is of extremely limited use in understanding the social impact of pre-trial incarceration. ^[4]

Practically speaking, bail hearings can be trying for many reasons, not the least of which is that the Crown is permitted to read out the allegations without having to prove them, and the accused is generally not able to defend against them at this point. Sometimes it is months or years before claims actually have to be proven, if they can be proven at all. The bail stage may include myriad other frustrations, including chronically under-resourced courts being unable to reach matters and causing lawyers and sureties to spend days waiting to be heard while the accused languishes in custody. Experienced counsel can make a big difference in navigating these realities, with all due respect for the best efforts of court appointed ‘duty counsel’.

The bail hearing is arguably the most important step in the entire criminal process. Studies show that accused persons who do not get released on bail are far more likely to plead guilty, and more likely to be convicted even if they plead not guilty. There is also a widespread perception that an out-of-custody accused is less likely to be sentenced to jail than an accused already in custody prior to sentencing, a perception with which I cannot disagree.

Bail hearings are usually presided over by a Justice of the Peace who, unlike most criminal court judges, is not usually someone with legal training prior to being appointed to the bench.

To have the best chance of success at a bail hearing an accused should be prepared to  present a Plan of Release which assures that Court of where the accused will be living and working, and that the bail conditions will be enforced by a responsible Surety. The conditions may include having no contact with particular persons (complainants, witnesses, co-accused), abiding by a curfew, advising authorities of any changes of address or employment, etc..

Preparing a Plan of Release that will ensure a client is release from custody on bail, in spite of the Crown’s desire to detain, is something my office does routinely.

If an accused person is ordered detained at a bail hearing, that decision can be reviewed under section 520 of the Criminal Code. These hearings are essentially an appeal of the decision refusing bail and are usually referred to as a ‘Bail Review’. These hearings generally take place at the Superior Court of Justice (‘high court’) and involve a more cumbersome procedure in which the onus is on the accused person to draft and file a variety of court documents including affidavits from proposed sureties and a transcript from the lower court proceeding under review.

A prospective Surety should expect to testify and to be challenged by the Crown as to whether or not he or she is suitable for the role. The website of the Ministry of the Attorney General states the following with respect to the role of a Surety.

ACTING AS A SURETY IS A SERIOUS MATTER

A surety is someone who agrees to take responsibility for a person accused of a crime. Being a surety is a serious commitment. Before you accept this responsibility, here are a few things you should think about:

• Think about getting independent legal advice to make sure you understand what this commitment means.
• Do not agree to be a surety if you are not sure that you can supervise the accused person in the community.
• If the accused person fails to obey the terms and/or conditions of the court order, you could lose the money you have pledged.
• Your responsibility as a surety continues until the case is completely over. In some cases, this may take a long time.
• Accepting a fee or being paid back in return for acting as a surety is against the law.

Responsibilities of a Surety

• Making sure the accused person comes to court on time and on the right dates.
• Making sure that the accused person obeys each condition of the bail order, also known as a recognizance.
• Conditions may require the accused person to report to the police and obey a curfew. They may also order the accused to not possess weapons, drink alcohol and/or communicate directly or indirectly with the victim or victim’s family. This means that you as the surety are also not to communicate on behalf of the accused person with the victim or the victim’s family.
• If you are accepted as a surety, you must sign the recognizance. It means that you agree to pay a specified amount of money if the accused person fails to obey the court order.

Qualifications of a Surety

• The judge or justice of the peace will decide whether you are suitable to act as a surety. Qualifications of a surety will vary depending on the allegations or charges against the accused.
• The judge will look at your finances, personal character and background.
• You may have to give evidence in court and be cross-examined about your qualifications.

Ending Your Obligations as a Surety

• You may decide that you are no longer willing or able to supervise the accused person. In this case you have two options:
  • You may bring the accused to the court personally and ask that you be relieved of your responsibilities, or
  • You may come to the court and apply in writing to the court to be relieved of your duties. The court will then issue an order for the arrest of the accused person.
  • If you believe the accused person is a threat to your safety, you should not attempt to bring the accused person back to court yourself. Once a court order is made, the police can arrest the accused and your obligations will be over.

Failure to Obey a Court Order

• If the accused person fails to appear in court or breaks any other term of the bail order, the accused person may be charged with another criminal offence.
• If the person is found guilty of breaching the court order, the Crown may ask the court to make you pay the money you committed as a surety. A hearing will be scheduled. You and the accused person will be given at least 10 days notice of the date and place of the hearing.
• The hearing is called estreatment. It will give you an opportunity to explain why you should not lose your money.
• The judge may order that you pay all, part, or none of your money.
• Further legal action may be taken against you to collect the amount owing.

Cash Deposits

• In some cases, in addition to the surety’s pledge to pay a specified amount of money, the accused will be required to deposit a sum of money to the court.
• Where there has been a deposit of cash by the accused person, or by the surety on behalf of the accused and the case is over, that money is returned to the accused person and not to the surety.

Photo by: Sean Galbraith