Bail hearings are an important step in the criminal process, as it is at this point that a Justice of the Peace will determine whether or not you are to be released into the community pending trial. This has significant implications for you. There is, of course, the obvious reason: nobody wants to be behind bars. This means you’ll be away from family, friends and community support. It could also have serious repercussions for your job and finances. Beyond this, however, you need to consider that preparing your defence is far less cumbersome when you’re in a position to meet with counsel regularly.
You are entitled to a bail hearing, regardless of the severity of, or the circumstances surrounding, the charges you face. The law states that you are to be brought before the court as soon as practicable, but no longer than 24 hours after being arrested. That being said, the reality is that often times the courts are backlogged, and while you may be brought to court, this does not guarantee that your bail hearing will be conducted. Having a lawyer present to assist you through the process can be of great benefit, as she will be in a better position to ensure that your matter is heard in a timely manner. You should also keep in mind that you only get one shot at a bail hearing, so you want to make it count. In the event you are denied bail, the only other recourse you will have is to pursue what is called a “bail review.” This takes place at the Superior Court of Justice and is a lengthy and costly process.
Your lawyer will take steps to construct and present a suitable plan of release to the court. Typically this will involve one or more sureties. In the event you do not have a suitable surety, there are bail programs available.
What is a surety?
A surety is an individual who is willing to sign for your bail. Ultimately they are responsible for ensuring that you abide by your bail conditions, and sometimes you may even be required to reside with your surety. Generally speaking, your surety will be asked to pledge a certain amount of money – meaning that in the event you were to breach your bail conditions, your surety may be required to forfeit that money.
Who can be a surety?
Sureties must be over 21 years of age, and generally speaking, they should not have a criminal record (although a criminal record does not necessarily preclude someone from being a surety). Anyone can be a surety, but ultimately the closer your relationship with the individual, the better. The court will need to be satisfied that this individual has the capacity to understand and enforce the bail conditions imposed, and is in a position to supervise you accordingly.
How does the court arrive at a decision?
There are three grounds that are used to justify detention; they are referred to as the “primary,” “secondary” and “tertiary” grounds. The primary ground is concerned with whether or not detention is necessary in order to ensure your attendance in court. Prior convictions for failing to appear, or breaches will be relevant considerations. The secondary ground focuses on the protection or safety of the public; this includes any victim or witness to the offence. The question at this stage is whether or not there is a substantial likelihood that you will, if released from custody, commit a criminal offence or interfere with the administration of justice. The tertiary ground is fairly abstract and is typically only referred to where very serious charges are involved and the accused has prior convictions. This ground deals with whether or not detention is necessary to maintain confidence in the administration of justice.
What conditions might the court impose?
There are a number of conditions that may or may not be imposed. The Justice of the Peace will take into account a number of factors when determining the appropriate conditions. The following list is not exhaustive:
Report to a peace officer
Keep the peace and be of good behaviour
Remain within a territorial jurisdiction specified
Reside at a particular address (You may be required to reside with your surety.)
Notify the peace officer of any change in address or employment
Abstain from communicating, directly or indirectly, with any victim, witness or other person identified, or refrain from going to any place specified