If someone you know and care about has a bail hearing, a Justice will decide if he or she can be released and under what conditions. Usually, the Court will require the accused to have a surety. Sometimes, the accused must live with the surety.
What is a surety? A surety supervises the accused, and acts as a financial guarantor. Some Justices refer to sureties as civilian jailers. The surety must promise the Court that she will do her best to ensure that the accused attends Court, obeys his bail conditions, and is well behaved. The surety's financial obligations will be stated on the Recognizance of Bail. If the accused does not show up in Court or does not follow the conditions, the surety can be liable to pay the full amount. Generally, a proposed surety must be a Canadian citizen or a landed immigrant, must not have a criminal record or outstanding charges, and must not be acting as a surety for anyone else. The Justice will consider how long you have known the accused, the nature of your relationship, and how often you communicate. An older family member that the accused respects, for example, is often an ideal surety. The Justice will consider your character, background, community ties, and finances. A surety must be able to afford the amount of the bail.
Becoming a surety is a serious decision, one not to be made lightly. To get informed, and to assess whether you might qualify as a surety, carefully review the questions and answers below. If you need advice as a surety, or want to hire me for the bail hearing, please contact me now
When are bail hearings required?
Bail hearings are only required if the police or crown prosecutor do not agree to release the accused on a criminal undertaking. Matters involving the specifics of bail may also be argued by both sides during the bail hearing. If the police/crown are unwilling to release the accused prior to trial, and the accused is unwilling to spend pretrial time in jail, a bail hearing is required to have a judge decide the matter. The Police and/or Crown's decision to oppose or consent to release is normally based on the following factors:
1) the seriousness and details of the offense;
2) the likelihood the accused will reoffend;
3) the accused's criminal record (in particular convictions for similar offences);
4) the likelihood the accused will show up for court;
5) whether the accused is in a position to possibly destroy valuable evidence that may be recovered in the future;
6) establishing the identity of the accused.
What happens at a bail hearing?
At the bail hearing, both the accused's lawyer and the crown will have the opportunity to present their case to the judge in support of their position. If the crown's position is that bail should be denied, they will inform the court of their reasons why. This may involve reading from the police synopsis of the case, presenting evidence of past criminal activity, calling witnesses, and quoting cases of similar facts that support their position. After the crown is finished, the accused will have the opportunity to similarly state their case to the court. This can include calling witnesses or putting the accused on the stand. While most bail hearings are conducted when the crown is opposed to releasing the accused, it is possible that the hearing will be held to determine the conditions of bail (such as issues involving sureties). Upon hearing both sides, the judge or justice of the peace will make his decision.
How to Get Bail, Toronto
In order to be successful at the bail hearing, the accused needs to convince the court that he will attend future court dates, not reoffend, and that releasing him is not contrary to the public interest. A big part of this is presenting to the court a credible surety to sign for release. Toronto courts deal with bail matters daily. A surety is a person that ensures the accused will abide by the conditions of bail and show up for court. The surety will normally agree to pledge a specific amount of money that may be forfeited if the accused fails to meet the conditions or does not show up for court. Sureties are typically family members, friends, or employers of the accused. It is important that the surety live relatively close to the accused, or have regular contact with the accused, as this demonstrates to the court that they will be able to effectively supervise the release. The court may inquire about the surety's work and family commitments to ensure they have the availability and resources to perform the task successfully. The court must also be satisfied that the surety has the financial means to pay the pledge of money in the event that the accused violates the terms of the bail. Depending on the amount of money required to be pledged, evidence of financial means may be required. This can include deeds to real property, bank account information, tax notices of assessment, or letters from an employer.
How much money is needed to post bail?
The surety is not normally required to provide any money up front (post bail) in Canada. Instead, the process works by them simply being legally bound to pay the money in the event the terms of bail are not met. It is a common misconception that amounts are typically required to be paid up front in order for the accused to be released.
Must the surety attend court?
It is extremely important that the surety attend the bail hearing in person. The judge or justice needs to see and speak to them to evaluate whether the person is suitable to be a surety. The surety should attend court on time, dressed in business casual attire, and with evidence of their financial means. The surety needs to be prepared to convince the court that they have the ability to properly supervise the accused and will ensure the accused attends all court dates. The court will also be looking to ensure the surety is agreeing to act voluntarily and understands the personal financial risk that being a surely poses to them. It is also generally a good idea for the potential surety to speak to the crown prior to the bail hearing to convince them of the above noted important factors. It is extremely helpful for the Crown to be in agreement that the person is a good candidate to act as a surety, even if they are opposed to release.
How many sureties are needed to get bail?
Normally, only one surety is required to get bail. This being said, sometimes there is more than one. Whether more than one surety is required will depend on the facts of the case. If one surety is unavailable for a certain period of time, but is otherwise available, another may be required to sign on to cover the missed time period. Another example of an instance where more than one surety is required is when an asset being pledged is held by more than one person. If a property deed to a house is being used as evidence of financial means, the court may require all individual owners listed on the deed to agree to the surety.
Vary Bail Conditions in Toronto
If you wish to vary your conditions of bail, you must apply and appear in court providing reasons as to why. In Toronto, bail vary applications are made by lawyers daily. The conditions required of the accused when they are released on bail tend to be similar to those found in criminal undertakings. It is possible to vary any condition depending on the facts of the case. In addition to the condition to attend court, other possible conditions include:
1) keep the peace and be of good behaviour;
2) avoid contact with the victim;
3) avoid specific geographic locations;
4) stay within the province (or specified area);
5) avoid non prescription drugs or alcohol;
6) report to the police station at specific times;
7) live at a specific address (sometimes with the surety);
8) notify police of any changes to address or employment.
Ultimately, the court will impose/agree to the conditions it feels are necessary to ensure the safety of the victim, that the accused doesn't commit new crimes, and that the accused attends court. The job of an experienced Toronto bail lawyer is to ensure that you get the most favourable bail conditions possible.
In the event the accused is found violating the bail conditions, he will likely be returned to jail until a further bail hearing can take place at which time he may be re-released or required to await the remainder of the pre-trial time in jail. If a surety has pledged money for the accused release, that person may be required to forfeit this sum to the court. These are matters that are determined by the judge (though as always the opinion of the crown prosecutor will aid in his decision).
The accused may also be charged with a criminal offence for failing to abide by the bail conditions (or failure to attend court). This means even if he eventually is found not guilty of the offense he was originally charged with, he could still be found guilty and acquire a criminal record for the bail violation itself.