Arrested offenders may stay in jail for some time until their trial if the Crown seeks their detention on bail and is successful.
The Canadian Charter of Rights and Freedoms states a person has a right to reasonable bail. Bail is a fundamental right for persons who have been arrested if they are eligible.
If you are released from custody on bail, the Crown may seek a number of conditions that you must abide by before a Judge or Justice agrees to release you.
Before getting out on bail, you need to attend a bail hearing. During this stage of your defence, you will want a criminal defence lawyer on your side.
The Crown, Court, and Your Right To Bail
People who are arrested have a right not to be denied bail in Canada. Sometimes, because a person charged is a risk to the community the Crown will seek either the detention of that person, or to have the court release that person on conditions.
In Canada, the presumption is release when it comes to a bail hearing. The Crown must show just cause for either detention or show cause for conditions on bail. The decision ultimately rests with the bail judge on whether the person should be detained or released on conditions.
The bail process is a critical component of your defence. If you do not have a good release plan, have not properly prepared, or do not have the right lawyer on your side you can end of spending time in jail before your trial, even though you have not been convicted of any crime.
Court time in B.C. and the rest of Canada is a precious commodity. It could be weeks, months, or in cases of a complex or serious nature – years before you go to trial. Bail is critical, and getting the right lawyer to help you get out on bail with the least restrictive conditions allowed by law will allow you to live your life, keep your job, and stay at home with your family while your matter moves through the court system.
What Does The Crown Try To Prove To Deny Release On Bail?
Crown counsel or the police will sometimes agree to release you even after you have been arrested and charged with a crime. If the Crown wants to show cause for either conditions, or show cause for you detention – there are three grounds on which they can do so.
Primary Ground
Primary ground concerns arise if you no show for court appearances. A history of breaching court orders, not showing up for court, or not having a lawyer are relevant under the primary ground. If you have no history of breaches and have a lawyer retained, it is unlikely that the Crown will raise this a ground for your detention.
Secondary Ground
Secondary ground concerns arise when Crown alleges you pose a risk of committing further offences or interfering with the investigation. The Crown must show not only that there is a substantial risk, but that the risk cannot be reduced by conditions such as a curfew to stay inside, house arrest, or other restrictions on your liberty.
Tertiary Ground
To deny the accused bail, the Crown may explain that granting bail would be an unjust action. The Crown or prosecution may prove denial of bail on tertiary grounds by:
- The Crown’s case looks strong.
- The crime alleged is a serious offence.
- A gun was used.
- If convicted, you are facing substantial jail time.
How a Criminal Defence Lawyer Could Help
If you are arrested, the police will grant you an opportunity for a phone call to speak with a lawyer. If your matter is serious and the Crown wants to impose conditions on your liberty, or wants to keep you in jail, you need to call a lawyer immediately.
When facing a criminal charge, you need an experienced criminal defence lawyer to represent you at your bail hearing, whether you are being released from custody or Crown is seeking your detention.
Prosecutor Consenting to Release on Bail
Your lawyer should attempt to negotiate your release before going to court. Defence counsel can suggest conditions on your behalf that can assure your attendance at court or mitigate any community risk to an acceptable level.
Your lawyer should also examine the Crown case for weaknesses, potential admissibility arguments, and other possible defences that may be raised at trial. If the Crown is seeking conditions or to keep you in jail, you need a good release plan.
Release Order
The release order is the document or form of release that you will be released on. The release order will have several conditions imposed by the judge to address the primary, secondary, or tertiary grounds raised by Crown counsel.
It is critical to follow all of the conditions on your release order. Failure to do so could result in you going to jail, being charged with a further criminal offence, or having to forfeit property, cash, or be on the hook to pay money.
Release Plan
The release plan is a critical part of bail. The release plan is the plan that is put before the court to ensure your compliance on bail. A release plan includes, but is not limited to:
- Residence
- Electronic Monitoring at your residence
- Abiding by curfew
- House arrest
- Employment
- Lack of criminal record
- Family support in the community
- Family responsibilities
- Curfew
- House arrest
- Cash
- Surety
- Financial obligation to pay
- No contact with identified people
There are three general monetary components to a release plan: a promise to pay, cash bail or surety.
Promise to Pay
A promise to pay as part of your release means just that – you have “promise to pay” if you violate your conditions as part of your release order.
Cash Bail
Cash bail is a cash deposit you pay into court to secure your release. The court does not impose cash bail without considering the ability of the accused to pay. Usually, the money is secured first, say $2000, then that $2000 is offered to the court. If accepted, the $2000 is paid to the registry, and you are released from custody. You remain in jail until the money is paid, so it is important to determine the amount first.
Cash bail does not work in Canadian law like it does on American TV, where the Judge orders huge amounts of money be paid, and the offender is lead away because they cannot make bail. A properly formulated release plan must consider how much cash is available before suggesting a cash bail release to the court.
Surety Bail
Being released on surety bail means that another person has made a deposit on your behalf. Your surety acts as a guarantor and could be a friend or relative. If someone is going to act as your surety they must speak to another lawyer and get independent legal advice.
Seek Legal Counsel and Representation From Dale Melville Law
If you have been charged with an offence and Crown counsel is asking to put restrictions on your liberty or to keep you in jail, contact Dale Melville Law immediately.