Bail Hearings

Judicial Interim Release | Bail Hearings | Show Cause Hearings

A bail hearing is an informal court proceeding typically conducted before a Justice of the Peace. During this hearing, the Accused is brought into court as quickly as possible—often on the same day as their arrest—to assess whether there are sufficient grounds for continued detention.

Section 430 of the Criminal Code of Canada covers a broad range of mischief charges, and we’ve seen it all. The most common mischief charges we handle are often linked to domestic disputes, with cellphones frequently involved. However, mischief can range from graffiti on storefronts to smashing personal items like laptops. Whatever the case, Song Criminal Defence is here to help you understand your mischief charge and build a strong defense.

What Happens at a Bail Hearing?

The primary aim of a bail hearing is to determine if the Accused can be released into the community after being arrested for Criminal Code offenses. Initially, the Accused is arrested and processed at a police detachment. If the Officer in Charge decides the individual should be held for a bail hearing rather than released via an Undertaking, they will be transported to court or appear via video conference. It’s crucial for the Accused to consult with their lawyer or Duty Counsel from Legal Aid Ontario prior to this stage.

Defense Counsel will identify potential sureties—individuals who are willing to guarantee the Accused’s compliance with bail conditions. These sureties undergo a vetting process, including police checks, to ensure they are suitable. During this time, Defense Counsel will gather information about the alleged offense from the Bail Vetter or the Assistant Crown Attorney present in court.

Bail hearings can often be adjourned to allow time for finding appropriate sureties, obtaining further details about the case, or making logistical arrangements, such as electronic monitoring. If the Crown is satisfied that the Accused can be released, both parties may agree to a “consent release,” involving a “bail plan” with specific conditions. Even in these cases, a formal bail hearing is held, during which the surety may be required to testify to confirm their understanding of their responsibilities.

A contested bail hearing occurs when the Crown opposes the Accused’s release. The court will assess the following grounds under the Criminal Code:

In Summary, the Court Considers:

1. Primary Grounds (s. 515(10)(i)): Will the Accused appear in court, or is there a risk they will flee?

2. Secondary Grounds (s. 515(10)(ii)): Is there a risk the Accused will commit further offenses or pose a threat to public safety if released?

3. Tertiary Grounds (s. 515(10)(iii)): Would releasing the Accused undermine public confidence in the justice system?

Even if the court has concerns related to these grounds, a robust bail plan may address them. For instance, electronic monitoring can help ensure compliance with conditions, such as house arrest or restrictions on communication with certain individuals.

Crown’s Burden and Standard of Proof

Crown Onus: The Crown holds the responsibility to justify the continued detention of the Accused. The standard of proof is based on a balance of probabilities, meaning the Crown must present sufficient evidence to support continued detention.

Reverse Onus Situations

Reverse Onus: In certain cases—such as when the Accused re-offends after a prior release—the Defense bears the burden to prove why the Accused should be released. This situation may also arise in cases involving organized crime, terrorism, serious weapons offenses, certain sexual offenses, murder, or robbery.

It’s crucial to remember that all Accused individuals are simply alleged offenders; they have not been found guilty. Bail hearings are not trials but rather informal assessments to determine whether the Accused can be released into the community based on their bail plan and the aforementioned grounds.

A surety plays a vital role in the bail process, acting as a “jailer” in the community. In more serious or repeat offense cases, the Crown may require a residential surety, meaning the Accused must live with the surety, who will monitor compliance with bail conditions.

Many Accused individuals and potential sureties underestimate the importance of preparation for bail hearings. Given that an Accused only has one opportunity for judicial interim release at the Ontario Court of Justice level, it’s critical to approach the hearing with a solid plan. If the hearing is lost, the Accused may face a lengthy period of custody and will need to seek a bail review at the Superior Court of Justice, which can be costly and time-consuming.

Given the complexity of bail hearings, we can only cover a fraction of the topic here. If you are facing a pending bail hearing, contact us immediately—time is of the essence. Let us meet you at the courthouse to initiate the process of securing judicial interim release.