What is bail
Bail is one of the most important steps that must be taken in every criminal case. It is much easier to defend a case when the client is not in custody so getting bail is very important. Additionally, jail is not a safe place necessarily, and getting released from the jail holding institutions will be a definite improvement in your safety and the mental well being of the family as well as the alleged offenders situation.
In Canada, we have a set of principles that apply to all bail hearings that determine what type of release should be put in place or if a detention order should be made. It is unusual for a detention order to be made as the general scheme requires release except in unusual circumstances. However, there are many circumstances that do affect the granting of bail and under what conditions that bail should be granted. This is where the advise and handling of the bail process can definitely be streamlined by counsel who have had an opportunity to prepare the case so that it can proceed to the best result. It is therefore highly recommended that potential clients take advantage of the knowledge that experienced counsel can bring to the process and result.
Often a bail court will have to consider the different types of release based on the charges before the court or the criminal record of the accused. Our bail system operates on three main principles, the primary, secondary and tertiary grounds. The primary grounds relate to whether you will come to court when required or if you are a flight risk. The secondary grounds are related to whether there is a substantial likelihood that if released you will continue to re offend. These are the two main grounds that apply on almost all bail hearings. Sometimes the crown will say at the start of the bail hearing that there is no issue on the primary grounds but that they are concerned on the secondary grounds. The tertiary grounds are related to the public interest and wether or not the public would lose faith in the justice system if you were released. This heading is not as common and mostly reserved for serious offence allegations.
If someone is already on bail, or charges that have a particular criminal code treatment (for example trafficking narcotics) it may shift the onus from the crown to the defendant. What this means is that normally the crown has to show why you should not be released. If the onus has shifted to a reverse onus then the defendant must show cause why they should be released. A reverse onus situation makes it more difficult to get bail and the need for a surety will be stronger.
Sometimes the circumstances of the charges may require a person to vouch for the accused and commit to ensuring the accused obeys the rules set out by the court for release. We call this person the surety. Sureties will be required to pledge a certain named amount of money they may be liable for if they do not do their job as surety. the amounts and conditions change with every bail so its not possible to list them all here. It can be said though that if the surety does their job and reports obvious breaches to the court they will not be liable to forfeit the pledged amount. It is only when the surety does not do their job, a breach occurs and they do not report the breach that the bail pledge may be sought by the court. This is called estreatment of bail and is unusual but not unheard of.
Surety Bail
Often a bail court will have to consider the different types of release based on the charges before the court or the criminal record of the accused. This may require a person to vouch for the accused and commit to ensuring the accused obeys the rules set out by the court for release. We call this person the surety. Sureties will be required to pledge a certain named amount of money they may be liable for if they do not do their job as surety. the amounts and conditions change with every bail so its not possible to list them all here. It can be said though that if the surety does their job and reports obvious breaches to the court they will not be liable to forfeit the pledged amount. It is only when the surety does not do their job, a breach occurs and they do not report the breach that the bail pledge may be sought by the court. This is called estreatment of bail and is unusual but not unheard of. The Supreme Court of Canada has recently given guidance on the issue of bail and sureties in the case of R. v. Antic ( https://scc-csc.lexum.com )
Amending the Bail
You are only allowed one bail hearing in the criminal courts. This means that you must get the conditions that you will be required to follow set out clearly and that no conflicts in your ability to follow those rules exists. Once bail is in place it can only be changed by the consent of the crown. The crown does consent to changes from time to time but generally does not want to entertain changes and therefore it is imperative to get it right the first time. it is possible to have a second bail hearing a the Superior Court of Justice and this is called a bail review. A Bail review is a far more expensive and time consuming process with no guarantee of a positive result, so once again getting it right at first is important.
Duty Council
In each bail court, there is a legal aid paid staff lawyer who can conduct the bail hearing for you. These duty counsel do have local experience and are able to conduct bail hearings for unrepresented accused. That being said it is my opinion that private counsel almost always have more experience and can get results that conform to the clients needs faster and with more precision than duty counsel. This is not meant to disparage duty counsel as they preform an important role for those who can not afford private counsel, it is just a fact of how the system works.