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Need to Seek Pretrial Release? What Does that Entail?

If you’ve been arrested for a criminal offence in the Toronto area, you’ll probably want to secure your freedom from detention as soon as possible. How you secure this freedom depends in large part upon the severity of the charges, and on whether you have a significant criminal record. Depending upon the charges, your freedom will be granted by either a simple police order releasing you from custody or will require a bail hearing before a judicial official.

The former option is typically reserved for less serious offences, such as impaired driving and shoplifting, and/or for those who do not have a serious criminal record. Under what’s known as an “Undertaking to a Peace Officer,” police have the discretion to release suspects without a bail hearing. Those released under a police undertaking must sign a document that promises that they will appear in court for their trial hearing. This document also asserts that subsequent breaking of any laws constitutes grounds for nullifying the undertaking.

If the police decline the undertaking option, the only way to secure your freedom is through the Judicial Interim Release (bail) process. If your release from detention depends upon this, then you should immediately seek out the services of a skilled bail hearing lawyer . The legalities of the Judicial Interim Release process are complex and a competent bail hearing lawyer can help secure the speediest release under the most favorable conditions. Those who attempt to gain pre-trial release without the assistance of legal counsel risk unfavorable bail outcomes, including lengthy incarceration while awaiting trial, or, at best, onerous bail conditions. In some situations, your bail hearing lawyer may be able to negotiate a best-outcome release without a contested bail hearing.

Judicial Interim Release Process Basics

Your right to be released under reasonable bail conditions is conditionally granted under Section 11 (e) of the Canadian Charter of Rights and Freedoms. However, Ontario courts can deny bail release for those accused of egregious crimes and/or for those with significant criminal records. The courts also have wide discretion in determining what constitutes “reasonable conditions.” Most indictable offence bail hearings are conducted in Ontario’s Superior Court, while summary conviction offence bail hearings are processed by the Ontario Court of Justice. Cases processed by the latter are often conducted by justices of the peace, while judges usually handle bail cases in the higher court. Generally speaking, indictable offence bail hearings tend to be far more complex than summary offence ones. Likewise, the less serious the alleged crime the easier it usually is to secure favorable bail conditions.

In considering whether to release a suspect from pre-trial detention, a presiding judicial official considers two primary factors, and sometimes a third. First off, they want to ensure that the accused will not skip bail and fail to attend court as required. Second, and equally important, they need to protect public safety and ensure that the accused will not commit further offences if released. The third factor is weighed if releasing the accused might cause the public to lose “confidence in the administration of justice.” In deliberating on whether to allow pretrial release, and under what conditions bail might be granted, judicial officials also consider:

  • Severity of the charges.
  • All details, if any, in the accused’s criminal record.
  • The age, mental health, and employment/education status of the accused.
  • And, if applicable, the ability of any proposed surety(ies) to supervise the accused while on release.

Depending in large part upon the Crown’s position on the defendant’s pretrial release, a bail hearing can either proceed with relative ease or prove to be more complicated. A skilled bail hearing lawyer will usually try to negotiate bail conditions that will be acceptable to the accused prior to the hearing. If successful, a non-contested bail hearing will typically involve only a reading of the conditions by the justice, followed by an order to appear in court for the first appearance hearing.

Contested bail hearings tend to take on the appearance of a trial when the Crown lawyers seek pre-trial detainment or onerous bail conditions. During such hearings, the Crown attorneys describe the alleged crime and provide reasoning to support their position on pre-trial detention or tough bail conditions. In some cases, the Crown calls in witnesses—such as the investigating police officer—to bolster their position. The bail hearing lawyer responds by raising any questions that might challenge the Crown’s position and present evidence and witnesses that can support the defendant’s proposed bail conditions. Defence witnesses in these proceedings do not generally address the crime itself, but instead provide information in support of the accused’s pre-trial release and related conditions.

The presiding justice will subjectively base their decision on whether to grant bail, and under what conditions, by weighing the arguments, evidence, and testimony presented by each side. If bail is granted, your bail hearing lawyer will assist with ensuring that you follow the terms of your release conditions. If bail is denied your lawyer can mount a judicial appeal.

Potential Bail Conditions

If you are released on bail, it typically falls under either what’s known as a recognizance or a consent release. Under a consent release, which are granted more often for indictable offences, bail is granted solely on the promise that you will follow the terms and conditions of your release. A recognizance, which is the legal term that describes your obligation to attend future court dates and not break bail conditions, involves providing the court property or cash that will be forfeited if you fail to show up for court or otherwise break bail conditions.

A recognizance can also be granted with use of a surety, who is a person willing to assume responsibility for the actions of the accused during the bail period. The surety also posts the cash or property bond required for the recognizance and is thus financially motivated to ensure that all bail conditions are followed by the accused. In some cases, a surety may prove to be the deciding factor in a justice’s approval of pre-trial release. A surety cannot have a criminal record and your bail hearing lawyer can help ensure that your proposed surety will meet other court requirements.

Typical bail conditions include attending all required court hearings and avoiding any contact with alleged victims. Other conditions can include:

  • No contact orders covering other people
  • House arrest
  • Electronic monitoring
  • Curfews
  • Regular reporting to police or a probation officer
  • Abstaining from alcohol and drugs
  • Not possessing weapons
  • Limitations on travel and local movement
  • Maintain or seek employment or educational endeavors

Consult with the Bail Hearing Lawyers at Mass Tsang

The bail hearing lawyers at the Greater Toronto Area law offices of Mass Tsang are highly skilled in helping their clients achieve the best bail outcomes possible. This can mark a positive start to your criminal defence efforts and make it easier for your criminal defence lawyer(s) to strategize the handling of your defence going forward. If you or a loved one is facing criminal charges , get a jump start on mounting a successful defence by contacting the bail hearing lawyers at Mass Tsang immediately.

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