Judicial Interim Release (Bail/show cause)
Generally speaking, if a person is charged with a criminal offence, even though they have a right to reasonable bail, there is a possibility that they can be detained unless and until they are released by the order of a Justice in a Court.
If you are denied bail you risk being held in jail for an offence that you are presumed to be innocent of until the day you complete your trial.
With regard to most charges under the Criminal Code, the law states that a person arrested has to either be released or be brought before a justice within 24 hours of his/her arrest if they are not released by police. A person must then be released unless the prosecutor can show why they should continue to be detained. In circumstances with more serious charges, the law makes it the job of the defence lawyer to show why an accused person should be released. This is referred to as a “reverse onus.”
Reasons to be Denied Bail
A hearing is held to give the prosecutor an opportunity to provide evidence of why a person should be detained. This is called a “show cause” or bail hearing. The law sets out three different reasons that the prosecutor can show for a person to be detained. They are as follows:
1) The person will not attend court as required. Often this is stated as saying that s/he is a “flight risk.”
2) The person is a danger to the public and that if the person is released there is a “substantial likelihood” that s/he will commit an offence that interferes with the administration of justice.
3) After considering all the facts including how strong the crown’s case is and the circumstances relating to the offence, a person can be detained if the court believes that the public would lose confidence in the justice system if s/he were released.
How to Get Bail
Even if the prosecution presents strong evidence to argue that a person should be detained, a defence lawyer can also present evidence of a plan that will attend to any concerns that the court may have in releasing a person. Here are a few of the ways a criminal defence lawyer can help an accused person get bail.
1) Sureties – often the lawyer will call witnesses called sureties to testify to the court that they are willing to supervise an accused person while s/he is out on bail. The surety will make sure that person attends court and does not commit any further offences. A surety essentially makes a bet with the court by pledging a certain amount of money that s/he stands to lose if an accused does not abide by the law when s/he is out on bail.
2) Promise of the accused – Sometimes an accused person will be called as a witness by his/her lawyer to testify before the court and promise the court that s/he will not break the law if s/he is released on bail.
3) Cash Bail – This is the most popular form of bail with the general public. Most people who have not been involved in the criminal justice system believe that bail is an amount of money deposited with the court to secure a person’s release. Cash deposited with the court is the strongest form of release according to the Criminal Code, but it is as common as sureties.
4) Electronic bracelets – In some cases an accused person can propose to wear an electronic monitoring bracelet around their ankle to allow them to be monitored while on bail. In cases where this is granted the costs are the responsibility of the accused person.
Take the Next Step
Lakin Afolabi is a criminal defence lawyer in London, Ontario who has conducted bail hearings for people charged with the most serious criminal offences including murder, attempted murder, and other grievous offences. If you or someone you know is wanted by the police or considering turning him/herself in to the authorities, Lakin Afolabi is an experienced lawyer who is available on his phone 24 hours a day.