In the Canadian legal system, bail is written permission granted by a court that allows a person charged with an offense to be released from jail as they await trial. Bail often involves specific conditions around what the person facing charges can and cannot do, and may involve a money deposit.
As it currently exists, the bail system is designed to ensure two things:
- That individuals charged with offenses will show up for their court date
- That the presumption of innocence is upheld without endangering public safety
Bail hearings are the forum in which these two priorities are negotiation. On one hand, a person who has not yet been convicted of a crime should be able to continue their normal life, within reason. On the other, the courts have a responsibility to ensure that potentially dangerous individuals do not re-offend while awaiting their trial.
However, some legal experts have criticized the Canadian bail system in recent years, arguing that the bail system errs on the side of extreme caution and tends to side with prosecutors against the defence. This has led to a situation where the majority of inmates in Ontario’s jails have not been convicted of a crime.
How Does the Bail System Work?
According to Canadian law, a bail hearing must be held within 24 hours of charges being laid. At this hearing, the Crown presents the allegations against the accused, usually from the police report (though witnesses can be called as well). This is followed by a response from the accused, their lawyer, or duty counsel.
The argument in favour of a bail release usually revolves around proving that the accused does not pose a threat to the community, is not a flight risk, and can be counted on to show up for their trial. It is common for the accused to have a surety — someone who vouches for their willingness to abide by the conditions of bail (for example, to avoid alcohol or illegal substances or not to contact the alleged victim).
A judge or justice of the peace will weigh the opposing arguments, and decide whether or not to grant bail and on what conditions.
The Role of Defence Lawyers in Securing Bail
While it is not legally necessary to have a lawyer represent you at your bail hearing, your chances of securing bail are significantly lower if you opt to represent yourself.
A criminal defence lawyer in Toronto knows how to effectively present your case before the Ontario courts, and understands which assurances will help convince the judge that you are trustworthy and responsible enough to await trial outside of jail.
One of the common complaints about Ontario’s bail system is that the prosecution often argues against bail release even when the accused presents no danger to the public, and has a surety promising to help them abide by the conditions and arrive at their court appointment. A defence lawyer well-versed in Canadian civil rights law is your best ally against a legal system that is sometimes too ready to put people not yet proved guilty behind bars.
The good news is that public outcry against the failures of Ontario’s bail system is gaining strength, and steps may be taken in the near future to overhaul how bail works. In the meantime, the best defence available to Canadians charged with a crime is to have a criminal lawyer present at their hearing.