Bail Hearings

Toronto Bail Hearing Lawyer Robb MacDonald Explains the Entire Process.

During his 15 years of practice, Robb has seen it all. This criminal lawyer from Toronto has learned the nuances of the bail hearing process that can make all the difference to somebody’s freedom. In this article, we look at how bail hearings work and what you can expect from the courts during the bail hearing process.

Quick Links in this Article:

Bail vs “Promise to Appear” | Bail Hearings | Release vs Contested Hearing | The Role of the Surety | The Role of the Lawyer | Bail Money | Winning / Losing Bail Hearings

Being held in custody is among the most devastating experiences to live through – with potentially dire consequences for an individual’s family and career. A Toronto bail hearing lawyer’s most important job is that of freeing his clients from custody. After an arrest is made, a bail hearing provides an Accused with his first opportunity to return to freedom.

When an individual is first arrested it throws all of his friends, family, and colleagues into a state of confusion. Meanwhile, these are the people –not the Accused- who play the most crucial role at a bail hearing. Robb’s practice is to work closely with an Accused’s family members to prepare the best plan for having the Accused released from custody.

It is vitally important for all family members to understand how a bail hearing works. 

Robb has provided details on the bail hearing process below. If one of your friends or family members has been arrested, please be sure to read this page. 

Bail Hearings in Toronto – When Someone is First Arrested

Bail Hearing versus “Promise to Appear”

When someone is first arrested the police will release that individual one of two ways. One way is by way of a “Promise to Appear.” Police will release an Accused person from the police station on that Accused person entering into an undertaking or “promise to appear” which usually involves the Accused agreeing to abide by a list of conditions. One such condition involves the Accused agreeing to show up to court on a particular date, at a particular court room, at a specified time. If the Accused agrees to comply with that (and possibly other) condition(s) he will be released from the station. The next step is for the Accused to personally attend at court. Alternatively, the Accused may have a lawyer attend court on his behalf.

Typically police will agree to release an Accused on a “promise to appear” if the Accused is charged with a relatively minor offence. Police will also consider the length of an Accused’s criminal record when deciding between:

(1) releasing on a “Promise to Appear”, or
(2) holding the Accused for a bail hearing.

Bail Hearings

If police arrest someone and the Accused faces serious charges or has a lengthy criminal record, he will almost always be held for a “Show Cause” hearing. These hearings usually require the Accused to secure family, friends, or close personal relations to come forward and put up “bail” money on the Accused’s behalf. The individual or individuals who come forward in this regard are called “sureties.” A surety is someone who can prove that they will supervise the Accused if he is released from jail in order to help ensure the Accused (i) attends court whenever necessary, and (ii) does not re-offend.
Typically a Justice of the Peace presides over a bail hearing and decides whether or not it is suitable to release the Accused back into society prior to the Accused’s trial. In serious cases, an Ontario Court Judge will preside over the bail hearing instead of a Justice of the Peace.

Consent Releases versus Contested Hearings

If the police refuse to release an Accused on a “Promise to Appear”, the Accused will be transported to the courthouse closest to where the Accused was arrested and/or the offence is said to have taken place. Please refer to the links to the left, under the heading Courthouses. Certain courthouses are closed on weekends. The only Toronto courthouse operating on weekends is Old City Hall (60 Queen St. West – Toronto).

Once an Accused arrives at the courthouse, the Crown Attorney (opposing lawyer/prosecutor) has the discretion to decide whether or not to agree to release the Accused (a “consent release”) without running a contested hearing. Usually, a Defence lawyer will have to present a written, well thought out, plan of supervision, involving one or more sureties, in order to release the Accused “on consent.” In many cases, the seriousness of the allegations will prevent a Crown Attorney from even considering a consent release.

If the Crown Attorney seeks the detention of the Accused pending trial, the Defence will have to call evidence to convince the presiding Justice or Judge as to why the Accused should be released. A contested hearing or “bail hearing” then ensues.

The Role of the Surety

Fathers, mothers, brothers, sisters, friends, and spouses can all be sureties. The best surety is someone who presents as firm, smart, authoritative, realistic and un-forgiving. Courts want to know that if they trust a surety with being in charge of an Accused, the Accused is not going to be given much leeway to (1) miss court or (2) reoffend.

In serious cases, the court will require the Accused to live with his surety in order to allow the surety to maintain close supervision over the Accused.

In less serious cases, the surety may not have to live with the Accused but the surety must still be prepared to ensure that the Accused follows all of his bail conditions. Whenever an Accused is released on bail he will be given a list of bail conditions that he must abide by. Inevitably, one condition is that the Accused must show up for court whenever necessary. In cases involving serious allegations, the Accused may be required to abide by a strict house arrest (ie. Never leaving his surety’s residence or only leaving the residence for the purposes of attending at work or at an education institution.

The Role of the Lawyer

Typically the lawyer’s first job is to prepare the surety so that the surety is comfortable taking the stand and answering questions in court.

The lawyer’s second job is to extract crucial information from the surety by questioning the surety in open court. The Crown Attorney (opposing lawyer) will then cross-examine the surety and may try to convince the presiding Justice of the Peace (or Judge) that the Accused should not be released or should not be released to the surety(s) proposed.

The Defence lawyer must try and demonstrate to the Court that: (i) the surety is fit to supervise the Accused, and; (ii) the surety has come up with an appropriate plan of supervision to sufficiently ensure that the Accused will follow all of his bail conditions if he is released. The focus for the defence at this stage is to try and demonstrate a plan that is sufficient to ensure: (i) the Accused will show up to court whenever necessary, (ii) will not reoffend when out on bail, and; (iii) that society would unlikely be outraged if it were to learn of the Accused’s release in the circumstances.

Bail Money

Sureties are also expected to pledge money to the court. In large part, this is merely a showing of the surety’s faith in the Accused and/or the Plan being proposed. Sureties may stand to lose the money if the Accused absconds or breaks certain bail conditions. Court’s use this system to ensure that sureties are sincere in their pledge to supervise the Accused. The theory being that a surety would not put up bail money for someone for whom the surety thought would abscond or reoffend. 

More serious cases typically call for a larger sum of money being offered for bail. That said, releases are not only granted to wealthy sureties / Accuseds. Courts will consider the impact on a surety if said bail money is seized by the court. If a surety only has $2,000 in savings and that surety is willing to put up 100% of his/her savings on behalf of the Accused, the court may have more confidence in this surety’s commitment to the “supervision plan” than a surety who has $100,000 in savings and only willing to pledge $15,000 in bail.

Implications of Winning / Losing Bail Hearings

If an (adult) Accused is released from custody after a bail hearing, he will be free (subject to his bail conditions) to live and operate in society until his matter goes to trial or is resolved. Conversely, if an Accused is detained after losing his bail hearing, he will have to stay in jail until his trial date or his matter is resolved.

In most Toronto courthouses there is a backlog of trials in the system. People often must wait 6 months to 1.5 years before their trials are even reached. Preparing carefully for a bail hearing is crucial to success. The impact of losing a bail hearing can be devastating for anyone facing criminal charges.

If an adult Accused loses his bail hearing he can appeal the decision to Superior Court. This process is referred to as a “bail review.” It usually takes 3-5 weeks to facilitate gathering the appropriate materials and commencing a bail review before a Superior Court Judge. When commencing a bail review after an unsuccessful bail hearing, the defence lawyer and his client have the uphill job of convincing the superior court judge that the lower court Judge or Justice erred in detaining the Accused.

Bail reviews are regularly won by Defendants but it is certainly in the Accused’s interest to “get it right the first time.” Winning the first bail hearing not only guarantees the Accused a much faster release from custody it may also be the Accused’s best chance for success. A competent lawyer, well prepared sureties, and a well thought out plan of supervision are integral to winning at either stage of the process.

After the bail hearing, an Accused must prepare to challenge the charges that he faces. This process is explained on the next tab on the website entitled “Judicial Process.”