The unfortunate reality is that those people that are denied bail are much more likely to plead guilty or to be found guilty after trial. It goes without saying that many people simply plead guilty early on simply to “get out of jail” for reasons such as job or familial commitments. How does it affect the presumption of innocence? Besides the appearance of being in custody, it is much more difficult for a defendant to locate, communicate with, and marshall witnesses that may be able to attest to his or her innocence. It therefore greatly affects the ability of the defendant to defend themselves. Further, pre-trial detention means a defendant cannot work and thus earn money and may not be in the same position to defend themselves as a person who is not detained.
The laws surrounding bail hearings, “judicial interim release” are found within the Criminal Code of Canada: http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html. They are complex. What follows is a brief summary of the law. While it is not, and should not be relied upon as legal advice, it may assist you with some of the questions you might have. As always, consult a criminal lawyer should you need criminal advice.
When Detention is Justified
515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
For any bail hearing, it is important to have strong sureties and a plan of release so that the above factors can be met. To discuss this further, please do not hesitate to contact me.
Section 524 Bail Hearing
524. (1)Where a justice is satisfied that there are reasonable grounds to believe that an accused
(a)has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
he may issue a warrant for the arrest of the accused.
If an accused is arrested, there will be a s.524 hearing. At this hearing, the Justice has the power to revoke the earlier release.
Powers of justice after hearing
524(8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds
(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).
At the s. 524 hearing, pursuant to s. 524(9) the accused has an opportunity to be released again on a “new” bail where he or she is able to show why the continued detention in custody is not justified.
A “bail review” is akin to an appeal of the original detention order. That is, if someone is denied bail and remains in custody, that person can apply to have a review of that detention order at the Superior Court of Justice. This review can be brought if the original Justice made an error or if there is a material change in circumstances. A “material change in circumstances” exists if there are new sureties available that were not available at the initial bail hearing, a new plan of release, or that the Crown’s case which was seemingly strong at the time of the initial bail hearing, has become much weaker due to new witnesses, witnesses who have changed their evidence, or witnesses caught in proven lies.
I have been counsel at hundreds of bail hearings, s. 524 bail hearings, and bail reviews where I have successfully obtained bail for my clients – please refer to my Recent Successes page.
Client charged with Importing Cocaine and Possession for the Purpose of Trafficking Cocaine.
Client charged with Possession of Loaded Restricted Firearm and other firearm related offences. Police executed a search warrant at the client’s home and found a loaded firearm and a quantity of drugs.
Charged with Robbery with Firearm, Conspiracy to Commit Robbery, Disguise with Intent. Client arrested for robbing a jewellery store and conspiring to rob a second jewellery store. Over a million dollars in jewellery was stolen.
Client charged with Trafficking Cocaine, Possession of Cocaine for the Purpose of Trafficking, Possession of Proceeds of Crime. Client arrested after allegedly selling cocaine to an undercover police officer. Upon arrest, client found with a further quantity of cocaine and proceeds of crime.
Client charged with Attempt Murder and Aggravated Assault. It was alleged that he stabbed his roommate after a drunken dispute. The victim suffered significant injuries.
Client charged with Possession of Marijuana for the Purpose of Trafficking, Possession of a Prohibited Firearm , Careless Storage of Ammunition and various other firearm offences. Police execute a search warrant at client’s condo and discover several kilograms of marijuana, a sawed-off shotgun and ammunition.
Brian Ross is professional, straightforward, and honest. After we reviewed my case I didn't have high hopes for a positive outcome because there really wasn't much for him to work with. However, come court date, charges were withdrawn!! It had all happened so fast. I am so grateful for Brian Ross and his team. He didn't give up on my case and he definitely made lemonade out of like a 1/4 of a lemon. I would 100% use their services again - hopefully I won't have too.Kate Rice
Money well spent! With all the issues with my case Brian gave me hope. I would definitely recommend spending the cash to hire Brian as he is an amazing lawyer. Watching him work I knew I had great chances. I feel like I have a new lease of life now with this behind me. All charges dropped which I could not imagine. Thank you to you and your team on helping me with this. Best lawyer in the city!!!Jan Lane
I had a great experience hiring Brian for my case. From the beginning he was very direct and honest. He was confident in his prediction and his prediction was correct. Brian did an incredible job. He is highly knowledgeable in his field. He was thorough and very well experienced. I do highly recommend Brian!!Anita Wong
As a young professional, the weight of a conviction was staggering, and would have greatly affected my ability to work in my chosen profession. Hiring Mr. Ross was the best way to guarantee against such effects. Throughout, Brian was present, helpful, positive, and supportive; hard-working and diligent. It was truly a pleasure to work with him, and a relief to get the call that Mr. Ross had accomplished what he initially set out to do. Consider this a sincere “Thank You” and commendation.Kylie S
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