Upon arrest, officers are obligated to inform you of your right to counsel. This right enables you to consult with and appoint a specialist following your arrest. Exercising this right and seeking legal advice before interacting with the police is highly advisable.
Depending on the specifics of the assault and your personal history (such as a criminal record), you may either be released by the police or held for a bail hearing. The police have various release mechanisms, all requiring your attendance in court alongside your attorney. If released by the police, conditions are often attached through an undertaking, which might include restrictions like not contacting the victim or avoiding certain locations.
Sexual assault is classified as a hybrid offence, giving the Crown the choice to proceed either summarily or by indictment. However, until the Crown decides, all hybrid offences are treated as indictable. Therefore, you are required to visit a police station for fingerprinting before your initial court appearance.
If held for bail, you must appear before a judicial officer within 24 hours of the arrest. A sexual assault attorney not only advises you on interactions with the police but also works on securing your release if detained.
In court for bail, a sexual assault lawyer from Toronto can negotiate with the Crown regarding your release conditions and propose a bail plan. This plan often involves one or more "sureties"—individuals who agree to be responsible for you in the community and pledge a certain amount of money if you fail to comply with your release conditions. The role of a surety is significant, and a skilled criminal lawyer can explain this role and prepare them for court.
Everyone is entitled to reasonable bail, which includes fair conditions and surety amounts. Reasonableness also implies that bail should not be denied without just cause.
The Crown may approve your release based on the bail plan. However, if they have concerns about the plan, the nature of the assault, your likelihood of reoffending, your compliance with conditions (especially if you have previously breached bail), etc., they might oppose your bail. A contested bail leads to a bail hearing, where the Crown is required to justify why detaining you is in the public interest. There are situations where the accused needs to prove why their detention is unwarranted.
There are three grounds for denying bail: the risk of fleeing (primary ground), threat to public safety (secondary ground), and maintaining confidence in the justice system (tertiary ground), which considers the seriousness of allegations and the strength of the Crown’s case. The court evaluates factors like community ties, personal circumstances, criminal history, the offence, and the strength of the bail plan and sureties.
In determining your release, the court also decides on necessary conditions to address concerns, such as ensuring court attendance and preventing further offences. These conditions can be strict and may include surety supervision, curfews or house arrest, substance abstention, mandatory counselling, no contact with specific individuals, and travel restrictions.
The Crown and court must adhere to the "ladder principle," as reinforced by the Supreme Court of Canada in R. v. Antic (2017), implying the imposition of the least restrictive conditions unless more stringent ones are warranted. A lawyer can advocate for less restrictive bail conditions and argue against unnecessary detention.
If bail is denied, you remain in custody until trial or resolution, though you can request a bail review at the Superior Court. Successfully obtaining bail can be challenging, and an experienced criminal defence lawyer can significantly improve your chances of release.
It's crucial to understand that violating bail conditions can lead to additional charges and potential revocation of your bail.