When an individual is charged with a crime, the arresting officer and/or staff sergeant in charge at the station will determine whether they should be released with a future court date (usually a few weeks down the road), or held and brought to court for bail. The individual can be released from the scene or at the station on what’s called a Form 9 promise to appear at court, or a Form 10/11.1 undertaking to an officer in charge, which also serves as a promise to appear at court but in addition will contain conditions such as preventing contact with a victim or preventing the individual from attending a specific place. If the charge is considered serious enough, the individual has a criminal record, or there are concerns with them appearing at court at a later date, the police may decide to hold them for a bail hearing. It is important for a lawyer to be involved at the earliest opportunity as they can assist in trying to convince the police not to hold the individual for bail and to release them from the station.
When someone is held for bail, the criminal code demands that they be brought to court within 24 hours of their arrest. Once at court, the Crown Attorney will make a determination whether the person is releasable on their own bail, whether they will require a supervisor for the person to be released, referred to as a surety, or whether they are opposed to the individual being granted bail. If the Crown is opposed to bail, the individual will have to conduct a hearing where they will present their plan of supervision to a Justice of the Peace who decides if there is a strong likelihood that they will not attend at court, or a strong a likelihood that they will commit further offences or interfere with the administration of justice if they are released. A lawyer is able to speak to the Crown before the Crown makes their decision on how they will proceed. It is often possible for a lawyer to convince the Crown to release the individual ‘on consent’ without having to conduct a hearing.
A surety is someone that knows the individual, usually a family member or friend, who comes forward to offer themselves as a supervisor in order to convince the Crown and/or the Court that they can ensure the person charged will attend court and not commit any further offences. A surety has to be 18 years of age, have no criminal record (or a very limited or dated one), be a permanent resident or citizen of Canada, and must have either some assets or at least some form of income. They will be asked to sign bail for a certain amount as a security to the court that they will perform the supervision duties expected of them. The amount they are able to sign for is based on their assets and income and the general principle of whether they could pay the money if required by the court. The money is rarely deposited with the Court, as the amount the surety signs for represents an amount that the Court could seek them to pay if they failed to supervise the individual as expected. That is, the Crown can seek to make the surety pay the money they signed for if they completely failed in their duties, such as allowing the individual not to attend court, or if they were aware that they were breaching a specific condition of the bail and did not call the police. A lawyer formulating a plan with the surety(s), and to convincingly present the plan to the Court, is often the difference between an individual being released on bail or being denied bail. If a Justice of the Peace in the Ontario Court of Justice denies an individual bail, it is possible to seek a review of that decision by a Superior Court Judge. However, the process is lengthy and requires a change of circumstance or an error by the Justice of the Peace in order to request the review. As such, it is very important that an individual put their best foot forward when they first try for bail in the Ontario Court as they do not get a second chance in the Ontario Court if the Justice of the Peace denies them bail.
(If a person does not have a surety and the Crown is opposed to bail, the individual can personally testify at the hearing that they will comply with any release conditions. This is not often done, should only be done if the individual has no other option, and will generally only be successful in cases of relatively minor charges. It may also be possible for someone that lacks a surety to attempt to be assisted by a bail program, which are programs run by community organizations who help supervise individuals who don’t have a surety. This will usually only be available when dealing with relatively minor charges.)
The conditions of bail that individuals are released on vary greatly. At the lowest end of the scale an individual can be released on their own bail that simply requires that they attend court or remain away from a specific individual or place. At the highest end, the most strict bails will involve the individual having to live with their surety and to remain on house arrest, meaning they cannot leave the residence at all. In practice, the vast majority of individuals are released on conditions somewhere in between those two extremes. As well, the amount of money that a surety is asked to sign for varies greatly – it can be anything from a few hundred dollars to hundreds of thousands. The amount is reflective of the finances of the surety and the seriousness of the offence. It is important for a lawyer to be able to argue on behalf of the individual so that the amount is kept as minimal as possible and the conditions least restrictive as possible.