Your Bail Hearings & Bail Reviews Lawyer
Serving Southern Ontario

During a bail hearing, the court determines whether the accused should be released from custody while awaiting trial.

When deciding whether to release an accused person on bail, the Court must be convinced of the following:

1. The accused will attend their future court dates.
2. There is no substantial risk that the accused will commit further offences while on bail.
3. The public will not be offended by the release, considering the seriousness of the charges and the strength of the prosecution’s case.

In most cases, the prosecutor has the burden of proving why the accused should remain in custody. However, in certain circumstances, the burden shifts to the accused, who must demonstrate why they should not be detained. This “reverse onus” typically applies in cases where the accused is already out on bail for other charges, or when they face specific charges, such as drug trafficking or firearm possession. It may also apply if the accused does not normally reside in Canada.

For someone in custody, a bail hearing is a critical point in their case and can heavily influence their decisions moving forward. It is a crucial part of the criminal process.

At the bail hearing stage, the accused will often need support from friends or family members who can act as sureties.

A surety is someone who agrees to supervise the accused while they are on bail and ensure that the bail conditions are followed. In some cases, the accused may be required to live with the surety. The surety will likely also need to pledge a monetary amount as part of the bail. This pledge serves as an incentive for the surety to properly supervise the accused, as they risk losing the money if the bail conditions are not met.

Typically, the surety does not have to deposit the pledged money upfront but must demonstrate to the Court that they have access to the amount, such as through bank statements or property deeds.

The number of sureties and the amount they must pledge can vary depending on several factors, including the nature and number of charges, the surety’s financial situation, their ability to supervise the accused, whether the accused has a prior criminal record, and the seriousness of that record. Each case is unique, and the decision on how many sureties are needed and the amount to be pledged is ultimately made by the Judge or Justice overseeing the bail hearing.

A surety may be required to testify in court about their plan to supervise the accused, provide background information, and explain their relationship with the accused to establish their suitability. One of the key roles of the defence lawyer is to ensure that potential sureties are thoroughly prepared for the court process.

Sureties should know in advance what questions they may face from the defence lawyer, and potentially from the prosecutor. A single wrong answer in court could lead to a denial of bail. Experienced criminal lawyers understand the types of questions likely to arise during a bail hearing and can prepare sureties for the more challenging ones. Proper preparation can make the difference between securing bail and facing a detention order.

During a bail hearing, the prosecutor may present a wide range of information about the accused and the offence, including details about their criminal history and the specific facts of the case. Since every individual in Canada is presumed innocent until proven guilty, the public disclosure of these allegations could potentially affect the accused’s right to a fair trial. In certain cases, the defence lawyer can request a publication ban on this information. The judge can then order that details, including the reasons for granting or denying bail, remain confidential and not be made public.