Deciding Whether to Grant Bail
Police have several options to release you on bail without having to attend court for a bail hearing:
- Appear Notice or Promise to Appear;
- Recognizance; or
The police officer in charge can stipulate certain conditions for bail, including the requirement to:
- Remain within a territorial jurisdiction;
- Provide a notice of a change of address, employment or occupation;
- Abstain from consuming alcohol or non-prescription;
- Refrain from attending certain locations; and
- Refrain from communicating directly or indirectly with certain individuals.
- It is critical to comply with the bail conditions as failure to do so is a criminal offence.
If you have been arrested under a criminal offence, the police have the option to release you without a bail hearing. Your release will be contingent on a promise to appear to a court date, and in most cases, to appear for fingerprinting. You may also be released on an undertaking, which is a signed document stating the conditions of your release.
Whether or not the police are opposed to your release, they must arrange a bail hearing within 24 hours of the arrest before a Justice of the Peace or a Provincial Court Judge. You are entitled to counsel for a bail hearing and your lawyer will always take steps to negotiate terms of your release with a bail prosecutor where possible.
Murder is an exception to this rule. Additionally, if the Crown Prosecutor consents to your release, then the court must grant bail.
Typically, the Crown bears the burden of proof to satisfy the court that the detention of the accused is necessary.
Certain offences like narcotics or drug charges have a reverse onus whereby the accused must justify their release to the court. An accused who has already been granted judicial interim release on a different charge is also subject to a reverse onus.
The police cannot arbitrarily detain a person and deny bail without just cause. Subject to some exceptions, the onus is on the Crown to justify the accused’s detention. On the three grounds detention without bail is deemed necessary:
- The primary grounds to ensure your attendance in court (in accordance with any criminal history and the nature of the offence, including whether the accused has a history of failing to appear);
- Secondary grounds if there is a substantial likelihood you will commit a further offence; or
- Tertiary grounds to maintain confidence in the administration of justice depending on:
- the strength of the prosecutor’s case;
- seriousness and circumstances of the offence;
- if the accused is liable to a lengthy term of imprisonment.
We can appear on your behalf to apply for your bail or judicial interim release if you have been arrested without being released by the police. Some applications for judicial interim release are straightforward whereas others are complex and require the filing of legal argument with case authorities.
After charges are laid by police, the Crown must provide disclosure to the accused. This includes a list of the charges with summaries, statements, and notes of the evidence. This may include, but is not limited to, the following information and documents:
- Video or photographic evidence;
- Witness statements;
- Transcripts of statements;
- Police notes, police reports; and
- Expert reports.
The prosecution must then provide the defence counsel with full and complete disclosure, which allows an accused person to decide whether to proceed to trial, make further disclosure requests, or decide to resolve the case with the prosecutor.
A preliminary inquiry is held by election where the Criminal Code allows for an election for the mode of trial. The purpose of the preliminary hearing is to determine if the prosecutor has sufficient evidence to proceed to trial. The standard of proof to be committed to stand trial is low and most accused are committed to standing trial. A preliminary inquiry assists the accused in the following ways:
- Narrowing the issues for trial (by reaching agreement on which facts are not in dispute);
- Allowing counsel for the accused to cross-examine Crown witnesses to test their reliability and credibility.
- Cross-examining police officers on the methods of their investigation and reliability of the evidence gathered; and
- Strengths or weaknesses in the Crown’s evidence that may lead to the resolution of the criminal litigation without a trial.
At the preliminary inquiry, the prosecutor will call evidence that one may expect to be called at the trial. However, the Crown is not obliged to call the same evidence at the preliminary inquiry as the trial. Furthermore, a judge sitting at a preliminary inquiry does not sit as a trial judge and cannot make findings of credibility, therefore an accused, practically speaking, would never testify at a preliminary inquiry. Like Crown witnesses, an accused would testify under oath and could be cross-examined at trial on that evidence.
At the conclusion of the preliminary inquiry, the court either discharges or commits the accused to stand trial on none, some, or all of the charges. If the evidence discloses other offences, the court can commit on charges not previously listed.
Pre-trial motions are complex; they may be procedural or substantive and may include the following legal issues:
- Severance of co-accused;
- A demand for particulars on an indictment;
- A motion for further disclosure;
- A motion for a stay of proceedings;
- A motion to exclude evidence
If an accused is seeking the exclusion of evidence as a result of a Canadian Charter of Rights and Violations abuse, they must file notice of the basis of the application and the relief sought. Charter motions are dense and require the defence to file legal arguments and case authorities in support of the application.
Entering Pleas and Plea Negotiations
If you are charged with a summary conviction, hybrid or indictable offence, you have the option to enter a plea or election depending on the case. Some indictable cases allow for a trial with a judge or a judge with a jury. Unless you enter a guilty plea, your case will be scheduled directly to trial or for a preliminary inquiry prior to a judge or judge and jury trial.
As your criminal defence lawyer, we can enter into plea negotiations with the prosecution to resolve what charge(s) you may plead guilty to, what facts are read into the record or filed, and what sentence the Crown will seek at the sentencing hearing.
The prosecutor will always consider resolving a case to spare witnesses from testifying and giving credit to an accused who pleads guilty. Resolution negotiations are important and can occur any time up to and during the trial. The judge issues a final decision about whether to accept any pleas that have been negotiated but will typically not interfere with a resolution that has been agreed upon by the Crown and the defence.
The burden of proof beyond a reasonable doubt remains with the Crown throughout a criminal trial. The Crown presents their case and evidence first; thereafter the defence has the opportunity to cross-examine Crown witnesses. As the accused charged with an offence, you hold the presumed benefit of innocence in a criminal trial, meaning that you do not need to testify or present evidence.
Once the prosecution has called and closed its case, the court then asks the defence whether they are calling evidence. Often the defence does not call evidence and argues the Crown has not proven their case beyond a reasonable doubt. If we choose to call witnesses, then the prosecutor has the right to cross-examine them, including an accused if they chose to testify.
At the conclusion of the trial, Crown and defence make final arguments to a judge or a jury. In a jury trial, the judge rules on what evidence the jury will hear and instructs the jury on the law that applies to the case for them to arrive at a decision. The judge or jury then renders a verdict of acquittal or conviction.
If at the end of a trial, you are convicted of an offence, you proceed to sentencing. Sentencing may occur on the same day as the conviction or the court may schedule a date for sentencing to allow counsel to make submissions and file materials. For example, the court may order a pre-sentence report, counsel may file case authorities, letters of character reference, and/or psychological reports.
Both Crown and defence make submissions on what ought to constitute a proper sentence. Whereas some offences have a mandatory minimum sentence, as outlined within the case and the Criminal Code, other offences allow the court to exercise a considerate amount of discretion in determining a proper sentence. A good criminal defence lawyer offers detailed sentencing submissions that will have a significant influence on the court’s verdict.
Appealing a Verdict or Sentence
If you are convicted, you have the right to appeal your conviction within 30 days of your verdict or sentencing. The defence may appeal on a question of law, fact or mixed law and fact if the trial judge committed an error. We can review the reasons for judgment or sentence with a transcript to access the viability of an appeal.