If you hear the word “incarceration,” it may cause your mind to invoke images of a dingy prison cell with its gray bars, and an unsavoury character or two behind them. Should Ontario police arrest you for a serious criminal offence, the image of you behind those stark gray bars becomes a distinct possibility, whether through imminent pre-trial incarceration or a longer-term prison term if convicted.
In the short term, preventing possible pre-trial incarceration should become you and your loved ones’ primary focus. The question is, how? More succinctly, you need the answers to questions like:
With decades of criminal defence experience and expertise helping clients successfully navigate the bail process in Ontario, Mass Tsang’s bail hearing lawyer in Toronto can answer these questions. We’ve put together the following primer on bail hearings in Ontario to provide you with a step-by-step walkthrough of what happens between the time of your arrest and your appearance at the bail hearing. This knowledge can help you navigate the process and secure a favourable pre-trial release outcome.
Language in the Criminal Code encourages the police and bail hearing courts to release most arrested criminal suspects at the earliest opportunity and under the least onerous conditions. However, such release is prefaced on ensuring that the offender will attend court appearances, not represent a threat to public safety, and not put the administration of justice into public disrepute.
Other than for specific serious indictable offences like murder, the police have broad discretion to release any arrested offender without a bail hearing. However, Section 498 of the Code requires them to hold arrestees for a bail hearing if they need to:
The police also assess other factors to determine the suitability of an alleged offender’s release without a bail hearing. For example, the severity of the offence plays a considerable role in determining release eligibility, as does the suspect’s criminal history, if any.
If the Ontario police decide to detain you for a bail hearing, they typically hold you in a temporary holding cell, though they have a statutory obligation to bring you before a bail hearing judge within 24 hours of arrest, or as soon as reasonably possible. Longer holding periods are legally justified based on hearing judge availability and arrests that occur during weekends or holidays.
During your detainment, the police are obligated to provide you with regular meals and access to bathroom facilities (typically in-cell). They must also respect your right to consult with a lawyer, whether via phone calls or in person. While there is no legal right that allows contact with family members or friends while detained, police often allow it when detainees politely ask permission to notify their family/friends/employers of their situation.
Bail hearings in Ontario are typically held in person before an Ontario Court of Justice judge, though in some cases, hearings are held via teleconference in the jail. In most hearings, the burden of proof is on the Crown to show cause as to why you should remain in pretrial incarceration. Crown prosecutors typically argue for continued detention based on one or more of three factors, each of which forms the basis on which a bail hearing judge can deny pretrial release:
In striving to prove your need for continued detention, the Crown can present evidence relating to the alleged offence, your criminal record, and testimony from the police or other witnesses. The introduction of any evidence or witnesses is not designed to prove guilt, but solely to show cause for your continued detention. However, you or your lawyer have the right to cross-examine any witnesses.
Following the Crown’s arguments, you or your lawyer can present arguments and evidence in support of your pretrial release, as well as a plan detailing how your pretrial release will be successfully managed. Such plans typically include:
After both sides have presented their arguments, each is allowed to make final statements supporting their positions. Bail hearing judges typically render their decision immediately or shortly after these final statements.
Note that certain factors, such as the severity of the offence, being a repeat offender, or committing an offence while already on bail, can impart a reverse onus in bail hearing cases, requiring the detainee to prove why they should be released from pretrial incarceration.
With only a 24-hour or slightly longer timeframe, there are several steps you and/or your family should take to prepare for your bail hearing. First and foremost, you should contact a skilled bail hearing lawyer who can help develop a bail plan to alleviate the Crown’s concerns about the three factors — court attendance, public safety, and public confidence in the justice system — that determine pretrial release. You should also compile all the reasons that support your release, focusing on:
Your focus at this juncture isn’t on the case details, but on justifications that support your release from detention.
During this timeframe, your family can prove most helpful by lining up an appropriate surety. Your family members must quickly familiarize themselves with the surety’s role and determine which “responsible” family member or close friend will prove acceptable to the court in the role. They should then help prepare the surety for their appearance in the bail hearing.
Given the short timeframe between arrest and a bail hearing, experienced Toronto criminal lawyers — like those at Mass Tsang — can be instrumental in helping you prepare for the bail hearing and develop a release plan acceptable to the court. This holds especially true if your contact with loved ones is limited — as it often is — during this brief detention period. A competent bail hearing lawyer can ensure that your family takes the right steps in finding and preparing a suitable surety, and in preparing you and the surety for the bail hearing.
If the police are keeping you in detention in advance of a bail hearing, secure outstanding pretrial release guidance in the Greater Toronto Area with the experts at Mass Tsang. With a stellar record for securing pretrial release for our clients, contact us today for your free 24/7 consultation.
You have the right to petition the Ontario Superior Court for a new hearing to consider fresh evidence or arguments in support of your release.
Section 10(b) of the Canadian Charter of Rights and Freedoms provides anyone arrested the right to consult with their lawyer but does not provide a similar right to meet or talk with family members. Generally, the police will help facilitate an in-person meeting or telephone consultation with your lawyer during your pre-bail-hearing incarceration. This may happen at the police station where you are being held and/or at the courthouse before your bail hearing. Due to the relatively brief pre-bail-hearing incarceration and logistical, security, and organizational limitations, police departments do not typically facilitate in-person meetings with family members.
Yes. The Ontario police can continue to question arrestees held for a bail hearing. Still, everyone retains the Charter right to remain silent and consult with a lawyer in the face of such questioning.
There is no difference. The “show cause” term for a bail hearing essentially refers to how the process forces the Crown to provide reasons why the accused should be subjected to pretrial detention. The official term for a bail hearing is “judicial interim release hearing.”
Ontario police have the discretion to impose specific conditions on those they release without a bail hearing. These conditions typically include:
If police determine or reasonably suspect that you are breaching bail conditions , whether set by them or by a bail hearing, they can charge you with a Section 145 Criminal Code offence relating to compliance with court orders. This significantly increases the likelihood that the police will detain you for a bail hearing on both the new charges and the original ones. It also makes it more challenging to convince a bail hearing judge that you are a suitable candidate for pretrial release.
