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By: Caramanna, Friedberg LLP

When a person gets arrested and charged with a criminal offense he has to be either released or held pending the court dealing with the charges. Most people are released pending the outcome of their case. There are many forms of release including a promise to appear, an undertaking, recognizance (with or without deposits), etc. For the purpose of this discussion, all releases will commonly be referred to as a "bail".

Under the constitution, a person has a right to reasonable bail. However, there are constitutional limits put on this right. Usually bails have conditions attached to them that restrict to some extent the accused's liberty until the charges are dealt with by the courts. The conditions can range from rather minor restrictions to house arrest depending on the circumstances of the accused and the case.

Having a rudimentary understanding of the bail process in Toronto and the GTA will greatly help you trying to obtain bail for yourself or someone you want to help get bail in an expeditious way. Sometimes when people are arrested, they are released by the police at the scene of the alleged crime or the police station. For the purposes of this article we will be discussing only situations where an accused is arrested and held by the police and brought to court for a bail hearing.

Sometimes called a "show cause hearing", a bail hearing is a mini-trial usually in Provincial Court to determine if an accused should be released on bail pending the outcome of his case. It is not a trial of the case and the court does not decide innocence or guilt at this stage. Many factors and issues are relevant at this hearing, but the ultimate issue is whether the accused should be released or not.

Most bails involve a surety. A surety can be thought of as a civilian jailer of sorts. A surety's job is to pledge an amount of money in exchange for the accused's release on bail and to supervise the accused while on bail. The supervision involves the accused complying with his bail conditions and attending court as required. If the accused breaches his conditions or fails to attend for court, the surety can lose the money he pledged for the bail of the accused. The idea then, is that the surety will be motivated to supervise the accused for a variety of reasons including the potential loss of the money he pledged. If the surety felt that the accused was not abiding by the conditions of his bail, the surety's recourse is to revoke the bail and have a warrant issue for the arrest of the accused. The surety actually needs no reason to revoke the bail. It is the surety who is in charge of that decision, not the accused.

It is always wise to retain a criminal defense lawyer when attempting to obtain bail. They know the law, the courts and the system. The bail process is extremely complicated and overwhelming for an accused and his/her family without the assistance of a criminal defense lawyer.

Who can be a Surety?

Who is going to be the surety? There are really very few restrictions on who can be a potential surety. However, most acceptable sureties are adults (obviously), without a criminal record, who have assets that can be proven with documentation, responsible, have a prior relationship with the accused and has the time and availability to supervise the accused. Sureties are often the family members of accused, employers and friends. There can be more than one surety involved in supervising and pledging money for the release of the accused. For example, a bail can be for $10,000 and have one surety sign for the whole amount or two sureties sign for $5000 each. Sometimes it's better to have more than one surety so multiple people can be involved in the supervision of the accused.

A surety who pledges an amount of money without deposit needs to prove they have the money somewhere. This can be done with a bank statement, RRSP statement, deed and mortgage documents or any other documents proving an asset. Cars and other personal property are not usually considered acceptable assets for the purposes of bail in the Toronto GTA. When coming to court for a bail hearing, a potential surety should bring this documentation with him to show the court.

In some cases, the conditions on the accused's liberty will include a change of residence. Sometimes, the court might want the accused to live with the surety for the purposes of supervision. Obviously if an accused is living with his surety, the level of supervision by the surety will be greater. If you are considering being a surety, think about if the accused could live with you if the court wants that. If the accused can't live with you, is the accused's residence in a place that would allow you to properly supervise him?

The Court Hearing

Sureties should be prepared to testify at the bail hearing. The criminal lawyer you hire will help you prepare for this process. The bail courts in Toronto and the GTA are very crowded and overworked. There are often delays in reaching bail hearings. If you have not hired a lawyer, it is very likely your case may not get called when you want it to and you may find the bail hearing getting adjourned and the accused having to sit in custody to wait for another day to have the bail hearing heard. One of the many ways a criminal lawyer can help you is to get the hearing prepared and heard as soon as possible.

Sureties are usually cross-examined by the Crown Attorneys. This can be a very unpleasant experience. A criminal lawyer while preparing a surety to testify will explain what is involved in this process. If you are a potential surety and get cross-examined by the Crown Attorney, try to remember it is an adversarial system. Do not take it personally.

Changing a Bail Condition after the Bail Hearing

Conditions can be changed later on if there is a reason for the change. Changes take place with either with the consent of the Crown Attorney or in a contested hearing in a higher level of court. The criminal lawyer you hire will know the process of attempting a bail change for you.