Is there always a bail hearing when someone is arrested?

The simple answer is “no”.  In fact, often there is no bail hearing needed at all.

If you are arrested by the police, the police can release you directly from the police station without a bail hearing under three different arrangements.

First, the police can release you if you enter into a “promise to appear”.  Where that happens, you will be given a formal document with a date and time for a court appearance.  You will sign the promise to appear and agree to attend court as required.

The police can also release you directly if you enter into a “recognizance” in an amount not exceeding $500 without deposit, unless you do not ordinarily reside in the province or within 200 kilometres of the place where you are in custody.  If you do not live in the province or within 200 km, the officer in charge can require you to deposit a sum of money not exceeding $500 as part of the recognizance.

The police can also require you to enter into an “undertaking” in Form 11.1 with one or more of the following conditions:

a)    remain within a specified jurisdiction

b)    notify the police of any change in address, employment or occupation

c)    abstain from communicating with named persons and/or abstain from attending any specified address

d)    deposit passport

e)    abstain from possessing any firearms

f)      report to the police and sign in at the police station on specified dates

g)    abstain from the consumption or drugs or alcohol.

In any of these situations, your release following arrest will be reasonably prompt and no bail hearing will be required.

The criminal defence lawyers at Auger Hollingsworth can assist our clients in jail to get released on bail. This is one of the most crucial parts of your defense strategy.

If the Crown Consents to Release You:
Often the Crown Attorney will agree to release you if the crime is not violent, not very serious or the person is not considered a flight risk. If Crown consents, your release is normally within hours.

Recognizance
A person who was arrested without a warrant will normally be released on the agreement of the Crown with a summons, appearance notice or promise to appear.

Other times, release will be conditional on the entering of a “recognizance” in an amount of up to $500.

Undertaking with Conditions
The Crown could also consent to a release based on an undertaking with conditions. For example:

To remain within a certain area;
To deposit a passport;
To notify the police of any change in address or employment;
To attend school (where applicable);
To abstain from communicating with any person or from going to any place;
To abstain from possessing a firearm and to surrender any firearm;
To report to police at specified times;
To abstain from consuming alcohol or other intoxicating substances; and/or
To abstain from taking drugs except in accordance with a medical prescription.
What if the Crown does not agree to release?
The Criminal Code of Canada mandates that someone who is being detained in jail after arrest be brought to court before a Justice of the Peace within 24 hours or as soon as possible. This timeline applies even if the arrest is on the weekend or a holiday. In most jurisdications, Justices of the Peace hold bail hearings on Saturdays and Sundays.

If the Crown doesn’t agree to a release, if the Crown cannot hold a full bail hearing within twenty-four hours, then the Crown may request to postpone the hearing for up to seventy-two hours.

Sureties
In some circumstances, delaying the hearing makes sense for the person who has been charged. The extra time can permit his or her criminal defence lawyer to assemble a strong case for release and to arrange for sureties.

What is a surety? A surety is someone who consents to be responsible for, and supervise, someone charged with a crime. Sometimes a surety has to put up or promise to pay money to the Court if the charged person fails to obey conditions of release from custody.

Are all Release Plans the Same?
No. Often, the Court’s decision to grant bail or not will depend on how good the decision maker consders the plan of release to be. Important questions to be answered are: does the person have a place to stay, a job to go to, counseling and support as required and appropriate supervision by someone whom the accused person respects. Sometimes, assembling the plan can take time.

Considerations when the Court will consider whether to release someone on bail:
The 3 considerations for the Court at a bail hearing:

Is the detention necessary to ensure the person’s attendance in court?
Is the detention necessary for the protection or safety of the public?
Is there any other just cause requiring detention having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment?
Who has the Burden at a Bail Hearing?
The Crown normally has the onus to “show cause” why the accused should be held. For some offences, or for people who have a record for failure to attend court, the onus or burden can be on the detained person to “show cause” why he or she should be released.

What if bail is denied?
Hire a criminal defence lawyer to handle your bail hearing before the Justice of the Peace to secure the best possible result, as quickly and as cheaply as possible.

Bail Review
Where release is denied, a “bail review” can be scheduled before a judge. The same three factors apply, but the judge is not bound by the views of the Justice of the Peace.

Note: If the Justice of the Peace releases the accused person, the Crown can also seek a bail review.

Sometimes it can take several weeks to get a date before a judge where your lawyer, the Crown, the witnesses and a judge are all available. The requirement to obtain (and pay for) the transcript of the initial bail hearing can also contribute to delay.

This can be frustrating and requires patience. You can be assured that Auger Hollingsworth would do everything in its power to move your hearing forward as quickly as possible. However, the possible delay is a strong reason to take your initial bail hearing seriously and hire a lawyer immediately.

WHY IS BAIL SO IMPORTANT?
Apart from the disruption and anxiety of separation from family and friends and loss of employment, there are strategic reasons to seek bail in many cases. For example:

It is more difficult and costly to meet with your lawyer and to assist in the preparation of your case from the detention centre. Your lawyer is limited as to when he or she can visit you. Telephone access is limited.
If you proceed to trial, you will be seated in the prisoner’s dock if you are in custody. This can have an impact, particularly on a jury.
If you are released on bail for months or more prior to trial, and stay out of trouble while out of custody, you will have a strong argument in any sentencing hearing that a jail sentence is not required and that you are rehabilitated.

If you or a loved one needs help getting out on bail, do not wait. Contact a criminal defence lawyer as soon as possible. Our Ottawa criminal defence lawyers will handle bail hearings and bail reviews in Ottawa, Smiths Falls, Perth, Cornwall, Hawksbury, L’Orignal, and many other locations. Call 613 233-4529 or email info@ottawalawfirm.ca today!

If you have asked to be a surety for a friend of loved one who is detained in custody (in jail) following an arrest, you should be asking the following questions:

• What is a surety?
• What are a surety’s duties?
• Does a surety have to deposit money and if so how much?
• What if the accused person does not comply with the bail order?
• What if I no longer want to be a surety?
• Who is eligible to be a surety?
• Can the accused person’s lawyer give me advice about being a surety?

Read the full article »

If you are in Ottawa, Eastern Ontario or elsewhere in Canada, you should beware that people often think, incorrectly, that criminal findings of guilt before adulthood have no impact once a person becomes an adult. A young person’s record does not cease to exist just because they turn 18, and if they re-offend before the “non-disclosure period” has passed, their record can be used in court. Read the full article »

Most Ottawa residents know what Canada’s Charter of Rights of Freedoms is, but if you are ever placed under arrest, you might not know how it helps you. You are entitled to very important rights under the Charter; they are so important that if the police do not observe these rights, the courts can refuse to admit evidence obtained by the police, which could result in charges being dismissed by the court or dropped by the crown attorney.

If you are ever asking yourself, ‘what are my rights upon arrest?’ Here they are:

• Every person who is under arrest or detention has the right to be promptly informed of the reasons for the arrest.
• Every person who is under arrest or detention has the right to speak to a lawyer without delay.  The police must inform the person of the right to speak to a lawyer and the police must also ensure that the person under arrest can access a lawyer.
• The police must advise the person under arrest of the right to speak to a lawyer and this must be done in a language that is clearly understood.
• The police must also advise the person under arrest that if they cannot afford a lawyer, a lawyer can be provided to speak to the person free of charge.

At the police station when you are being processed, issues can often arise when the police are giving you your right to consult a lawyer.  For example, was an interpreter available if language was an issue?  Were accommodations made if the legal advice was not understood?  Was there adequate privacy for your call?  Did you want to speak with a specific lawyer?  Were you permitted to leave a message for the lawyer of your choice to call you at the police station? If any of these issues arose during your arrest, you want to ensure you discuss this with your lawyer.

Experienced criminal defence lawyers at Auger Hollingsworth can give you the advice you need to protect your legal rights. Contact a criminal defence lawyer at Auger Hollingsworth at 613-233-4529 or at info@ottawalawfirm.ca

Sometimes, no matter how good your criminal defence lawyer is, you end up with a finding of guilt or a plea of guilt and a sentencing hearing is required.    Sentencing in Ottawa is a very important part of your case and should not be treated as an afterthought.

Where sentencing is likely or possible, our criminal defence lawyers will work with you to help build a strong case for a lenient sentence.   A key component of the sentencing package is reference letters.

We work with our clients to devise a list of people who can provide personal letters of reference on your behalf.   Typically these letters come from members of your community, religious institution, employer, neighbors, teachers or anyone else who is prepared to tell the court that you are a person of integrity who should be sentenced lightly.    Note that we would never contact anyone for a reference letter without your express consent and instructions.

Generally,  the letters of support set out the following:

-who the writer is in terms of occupation and family status

-a description of the writer’s connection to the accused person

-the fact that the writer is aware of the charges; and

-a description of a number of the accused person’s positive personal attributes (such as hard working, honest, a reliable worker, etc.).

The letter should include the writer’s contact information.

A package of supportive letters from people of good reputation in the community can go a long way to assisting your Ottawa criminal lawyers in making strong submissions on sentence.