Bail Hearing in Toronto

Bail, or a Judicial Interim Release, is the release of a person charged with a criminal offence prior to trial.

If you have been charged with a less serious offence, such as theft under $5,000, mischief, or drug possession it is not uncommon for police to release you at the scene on a release order.

Police will provide you with a Promise to Appear document outlining your charges, and any required appearances you must make. This document may also include conditions that you are required to follow while on release.

For more serious offences, you will be kept in custody and require a formal bail hearing to secure your release.

Types of Release

There are several forms of release available to the police and the Court.

The most common types of release are as follows:

• Appearance Notice/Promise to Appear
• Recognizance

Your particular circumstances and the type of offence you are charged with will most likely dictate the manner in which the police will proceed.

Appearance Notice/Promise to Appear

Release by way of Appearance Notice or Promise to Appear is typically reserved for detained people with little or no prior criminal history, and for relatively low level criminal charges.

Release of this type is in the discretion of the police, and does not require a formal Bail hearing.

The release conditions associated with these documents are very minimal. The most important of the conditions is that you attend court on the specified court date and continue to attend court thereafter as required.

You will also likely find a condition that you must attend a police station for the purposes of “identification”, which is a fancy way of saying fingerprinting.  Make sure you don’t miss either date because a warrant will issue for your non attendance.

If the police feel that your circumstances require more onerous conditions the may require you to sign an “undertaking” outlining such conditions.

Some of the typical additional conditions include the following:

• Keep the peace
• Reporting to the police
• Curfew
• No contact with a specified person or persons
• Non attendance at a specific address or location
• No leaving the province
• No alcohol

If any of the conditions the police propose in the Undertaking seem excessive, it may be possible to negotiate them, but if you really want to contest them, you will be held in custody until you are able to appear in front of a judge or justice of the peace.

Note that these conditions can be reviewed at the first court appearance, so for the sake of getting out of police custody, it may be worthwhile signing for the conditions, even if they appear excessive, and cleaning them up later.

Recognizance

Release by way of a Recognizance is reserved for cases where the charges are serious, the accused is a flight risk, there is a significant risk that further offences will be committed while on release, and/or there is a significant criminal history.

In such circumstances, the police either do not have discretion to release the person themselves, or are bound by policy to conduct a bail hearing.

A Recognizance release will have to be secured by either a cash deposit, a no cash deposit, or a surety:

• Cash Deposit – requires a specified amount of cash to be deposited before release is authorized. In Toronto, this can be paid at the Courthouse where the bail hearing was held (at Old City Hall, for example, you can pay the cash deposit at room 7 on the ground floor), at the Toronto South Detention Centre, or at the Remand Centre at which the accused person is being held. The bail money is returned automatically upon the expiration of the recognizance (presumably when the charges are dealt with completely).
• No Cash Deposit – specifies the cash amount that needs to be paid only if the conditions of the release are not followed.
• Surety – requires that someone post something of value (or a portion thereof) as collateral to secure release. For example, if the surety is set at $5000, a parent of the accused person can put up their vehicle as that collateral assuming the vehicle is worth at least $5000. In Ontario, because of the prevalence of Justices of the Peace and Judges requiring a surety, various Bail Programs have been set up that provide an alternative to a surety. The contact number for the Toronto Bail Program is 416-314-3765.

The Recognizance sets out the next appearance date, as well as the conditions of release. A Recognizance is typically required when the case is more serious, and as such, conditions are often more robust than in an Undertaking.

It can include the following:

• Deposit your passport;
• Abstain from communicating directly or indirectly with named individuals;
• Abstain from attending named locations;
• Abstain from consuming alcohol or other intoxicating substances;
• Not be in possession of a cellphone;
• Not be in possession of a weapon;
• Remain within Ontario;
• Abide by curfew;
• Abide by house arrest;
• Attend for counselling/treatment;
• Not be behind the wheel of any motor vehicle;
• Not be in a motor vehicle without the registered owner;
• Not be in possession of identification that is not in your name;
• Not be in contact with anyone younger than 18 years of age;
• Not have access to the internet;
• Not be in possession of any electronic device capable of accessing the internet;
• And others.

Unlike an Undertaking, which can be reviewed at the first court appearance automatically, once the conditions of the Recognizance release are set, it is very difficult to change them.

Unless the Crown prosecutor agrees to vary the conditions, the only recourse is to conduct a Superior Court bail review hearing.  This entails significant time and expense, so it is best to negotiate the terms of release as much as possible at the initial bail hearing.

How Can a Criminal Lawyer Help?

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws.

Our criminal defence lawyers are able to contact the police and the person charged while they are being detained. We make all reasonable efforts to discuss the file with the “presenting officer” or “Duty Crown” and negotiate release without the need for a contested bail hearing.

Although the person in custody must still appear before a judge or justice of the peace, it goes much smoother when the officer or prosecutor in charge is agreeable to release and we present a joint release plan.

Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.

We will immediately do the following:

1. Call the Division where you are being held in Toronto and speak to you.
2. Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the Court about why you should be released on bail.
4. Conduct either an in-person or teleconference bail hearing to secure your release.

What happens if you do not receive an Appearance Notice?

If we cannot convince the presenting officer or prosecutor, there are several options open to us.

We can either choose to conduct a bail hearing in front of a Justice of the Peace (which must occur within 24 hours of arrest) or can choose to adjourn the matter to a Court where a Judge and Crown prosecutor will be in attendance.

If the matter is particularly complex, a bail hearing may need to be scheduled several days into the future.

Conducting the bail hearing properly is sometimes more important than any other step in the criminal process (with the exception, perhaps, of the trial).

Indeed, an order of detention can impact how the rest of the case is conducted. Unfortunately, some people spend more time in jail waiting for their trial date than they would even if convicted at trial. As such, we do everything possible to ensure that our clients are released from custody as soon as possible.

We understand it’s tempting to conduct your own bail hearing in the hope of getting out sooner, but there are some significant risks in doing so, including the following:

• You may not know what information is relevant to present to the judge;
• You may not be able to articulate that information in a structured way;
• You may not be able to contact the right people or coordinate the right resources to present a strong release plan;
• You may not have access to the police information package to determine the strength of the Crown’s case, or more importantly, argue the weaknesses in their case;
• Even if you are able to access the police information package, you may not be able to discern the legal issues and arguments that may be relevant to your case; and
• Whatever you do say to the Court may be used against you in subsequent prosecution or at your trial.

At the time of your bail hearing, you will be transported to the courthouse associated with the particular police division, except for on weekends when Old City Hall holds weekend bail court.

Old City Hall is located at:

60 Queen St W
Toronto, ON M5H 2M3

Our key function in relation to your bail hearing is to present the relevant information in a meaningful and understandable way.

At the same time, we can review the merits of the case and point out the pitfalls in the Crown’s case that support your case for release. Finally, we can structure our submissions to, as much as possible, insulate you from having that information used against you later on.

Please note that what you have read above is a relatively basic insight into the Criminal Bail process. There are numerous exceptions and nuances that apply to each case, and as such, it is important to consult one of our dedicated criminal lawyers to discuss the specific circumstances of your case as soon as possible.

Bail Hearing Process

What To Expect During a Bail Hearing

When you attend your bail hearing, the Judge will consider:

• Is detention necessary to secure your attendance in court?
• Is detention necessary to protect the public from a substantial risk of re-offence?
• Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

Due to the extreme seriousness of the charge, the prosecution will almost certainly ask the Judge that you be kept in jail for the entirety of your case. If you have a prior criminal record involving violence or breaching court orders, being released from custody will be a very difficult task.

We will make a thorough presentation to the Judge demonstrating why you are entitled to be released on bail while your case goes through the justice system. We will emphasize all your personal qualities that demonstrate that you are not a flight risk, nor will you commit new offences on bail.

Our lawyers are often successful at persuading the Prosecutor in charge of bail to let our clients out. If we can’t convince the Crown, we can conduct a formal bail hearing and work to convince the Court. If you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Ontario Superior Court of Justice.

Speak With A Criminal Defence Lawyer

If you or your loved one is in police custody or awaiting a bail hearing, contact our team of experienced criminal defence lawyers today by calling 647-986-8077. We will take immediate action to speak with the accused, law enforcement, and the crown to negotiate their release.