If you are facing criminal charges, navigating the complexities of the justice system can feel like stepping into a labyrinth with no clear path. One crucial aspect of this journey is understanding how a bail hearing works and the role of a surety within it. Understanding the role and responsibilities of a surety becomes particularly important during bail hearings, where the court determines whether an accused person should be released from custody pending trial. This decision hinges on various factors, including the severity of the alleged offence, the defendant’s criminal history, and the likelihood of them appearing for future court proceedings.
This blog will provide a high-level overview regarding bail hearings as well as the role and responsibilities of a surety in order to help you navigate the bail process and make informed decisions when it comes to determining your defence strategy.
An Overview of the Bail Hearing Process
The primary purpose behind a bail hearing is to decide whether you can be released pending your trial; accordingly, having proper legal representation is critical. However, the significance of bail hearings extends beyond your individual case. As outlined in Canada’s Criminal Code, bail is intended to:
- ensure that the accused appears in court when required;
- maintain the public’s confidence in the Canadian justice system; and
- maintain public safety by identifying and managing potential risks if an accused is released.
The Canadian Charter of Rights and Freedoms also recognizes bail as a constitutional right and acknowledges that all accused persons have the right to liberty and are presumed innocent until they are proven guilty.
If you have been arrested on criminal charges and have been taken into custody, you must be brought for a bail hearing before a justice of the peace or judge within 24 hours. As such, bail hearings may occur at odd hours, and it is important to ensure that your lawyer is prepared to act fast. During the time between your arrest and your bail hearing, you may be taken into custody until your bail hearing if you are facing serious charges and are considered to pose a potential threat to the public.
The Bail Hearing Process
At the bail hearing, the parties will provide evidence to the court to help it decide whether to detain you or release you, with or without conditions. Before arriving at such a decision, the court and police must consider whether you belong to an overrepresented group in the criminal justice sustem and face disadvantages to obtaining bail due to systemic discrimination, along with other factors.
Bail Denial
Generally, if the Prosecution seeks detention (denied bail), the onus is on them to prove that there is just cause to detain you. Section 515(10) of the Criminal Code provides three grounds upon which you may be denied bail:
- to ensure your attendance in court;
- to protect overall public safety, including that of the victim(s) and witness(es) if there is a likelihood that you might reoffend or interfere with the administration of justice; and
- to maintain confidence in the administration of justice.
The Prosecution is only required to establish one of the three above-listed grounds for denial. However, if you are facing certain charges that are of a particular public concern, such as sexual assault, the burden of proof shifts from the Prosection to the accused to prove that they should not be denied bail.
The Impact of a Bail Hearing
Ensuring that you have a successful bail hearing is critical to mitigate employment loss and preserve interpersonal relationships. Further, while a bail hearing will not decide your ultimate fate, a successful one can lay the foundation for further success throughout your case. However, if it is determined that you are a public threat and a risk to others, you may be required to remain in custody until your trial.
For these reasons, it is important to work with an experienced bail hearing lawyer, as they will be able to help you build a strong case in your favour in a short amount of time. Their experience will also be beneficial in determining whether the imposed bail conditions are appropriate and fair in the circumstances.
What is a Surety?
In essence, a surety acts as a guarantor, providing a promise to the court that the accused will comply with the conditions outlined in their release. A surety often bears significant financial responsibility, as they may need to pledge a certain amount of money or assets as collateral in the event that the accused fails to abide by their release conditions (also referred to as “bail conditions”).
A friend, family, or third party may act as surety. They will be responsible for supervising the accused and they must immediately report the accused if they breach their bail conditions. As such, a surety can also encourage the accused to adhere to their bail conditions given the possibility that a breach will result in their arrest and return to police custody.
Surety Responsibilities
A primary surety responsibility is to pledge a sum of money to the court as collateral in the event the accused fails to abide by the conditions of their release. This amount will vary depending on the circumstances of the case, the gravity of the charges, and other considerations. Upon a breach of conditions by the accused, this money will be paid to the court through the process of “estreatment” and will proceed separately from the accused’s criminal case. In some cases, the accused will be required to live with the surety as part of their release conditions. This is referred to as a “residential surety.” Further, the surety is required to supervise the accused during their release and ensure they attend court when required to.
In order to become a surety, the individual must proceed through a formal process in order for the bail court to assess their suitability, financial means, criminal background, and ability to supervise the accused. A potential surety needs to ensure they have a comprehensive understanding of the risks associated with this commitment.
Contact the Criminal Defence Lawyers at Hicks Adams in Toronto for Assistance with Bail Hearings
The skilled criminal defence lawyers at Hicks Adams understand that bail hearings require quick action and effective representation. Our criminal defence team has the experience and resources to ensure that a tailored defence strategy is in place. We will meet with your surety and ensure that your rights are preserved as we strive for a successful outcome. If your bail has been denied, we also represent clients in bail hearing appeals. To speak with a member of our team regarding your bail hearing, call us at 975-1700 (toll-free at 1-877-975-1700) or reach out to us online.
