Following arrest, police have two options. They may release you, or they may detain you.
Release you: If they decide to release you, you are likely given a summons (a piece of paper). This paper is a legal document that requires you to appear in court on a specified date in the future. There are no conditions. They may also transfer you to the police station and provide you with an undertaking, or recognizance (both similar to a summons).
Detain you: If police decide to detain you, they must bring you before a Justice in court within 24 hours of your arrest. In the meantime, police will bring you back to the police station. They will read you your rights, they will account for all items you have in your possession, and they will place you in a holding cell until they are ready to transport you to court to address your bail.
Step 1: Contact your lawyer and make a plan
When you’ve been detained for bail, the first step is to contact your lawyer. Generally, police will contact your lawyer of choice and provide them with your name, what police station you are being held at, and what courthouse/courtroom you will appear in for bail. You then will have an opportunity to speak with your lawyer. Here, your lawyer will ask you whether you want to retain him to address your bail. If you decide to retain the lawyer, the lawyer will want to know if you have any friends or family that is willing to be your surety. A surety is a person who agrees to be legally responsible for your performance under bail, including ensuring you appear in court, and ensuring you adhere to curfews. Your lawyer also may ask how much money you and/or your surety can offer as collateral on bail. You and your lawyer must ensure that you have a sound plan: a good place to stay during bail, a responsible supervisor, and suitable conditions.
At this point your lawyer will begin to make calls to your potential sureties and arrange for them to come to court for you. Your lawyer will also do legal research and preparation in the event they must conduct a bail hearing.
Step 2: Negotiate with the Crown Prosecutor for your release
Once you’ve been transported to the courthouse for your bail hearing, your lawyer will meet you there and discuss the plan with you. Your lawyer will double check what conditions you are okay with, and what conditions are unreasonable. The lawyer will meet with the surety and acquire background information on them. The lawyer’s goal here is to present the prosecutor with the best plan possible to avoid a bail hearing and have you released on consent.
The lawyer will now speak with the prosecutor. The prosecutor and defence counsel will go over the initial police report to understand the circumstances of the alleged offence. They will both examine your criminal record, and the negotiations will begin. The defence counsel will try and persuade the prosecutor that the circumstances of the offence do not require detention, and that the release plan offered is sound. The prosecutor may or may not ask you agree to stiffer conditions, or they may ask for more background information on the surety.
The Crown consents to your release
In this scenario, your defence counsel and the prosecutor were able to agree on a release plan for you. Ultimately, the power to release you from custody on bail vests with the Justice, however, typically when the prosecutor consents to your release and both parties agree on the conditions, a Justice will very rarely reject a consent agreement.
The Crown does not consent to your release
If after negotiations the prosecutor does not want to consent to your release, you will need to conduct a bail hearing to be released. Similarly, there are certain offences where consent releases and immediate bail hearings are not available. These offences are listed in s.469 of the Criminal Code and include offences like first degree-murder and treason.
The Bail Hearing
A bail hearing is a hearing where the prosecutor must show cause as to why you should be detained in custody until your charges has been dealt with. The hearing takes place in front of a Justice of the Peace in the Ontario Court of Justice. If charged with a s.469 offence, the bail hearing takes place in the Superior Court of Justice in front of a Judge.
For most offences, the onus is on the prosecutor to show the Justice why you should be detained. For some offences, there is a reverse onus – an onus on you to prove why you should be released. Both must be proved on a balance of probabilities.
The law is clear: the starting position is the release of the arrested person, without conditions. The next position is the release with some conditions. The steps go through more restrictive releases until the last step, which is detention. Therefore, it is the onus of the prosecutor to show why you should be detained, and why a more restrictive release is warranted over a lesser restrictive release.
At the bail hearing your lawyer will make submissions to the Justice why you should be released. These submissions include:
- your release plan and why the release plan should satisfy any worries of the court in releasing you
- case law/legal precedent where factually similar cases have resulted in release from custody
- showing flaws in the prosecutor’s case against you, and;
- lack of criminal record, or criminal record of release violations
If you know anyone in need of immediate legal representation for bail, call Nikolas now at 613-233-2542