How to Prepare and Conduct a Bail Hearing

Updated December 2013

This How-To Brief outlines the steps to take to prepare and conduct a bail hearing. References to "sections" refer to sections of the Criminal Code.

1Interview the initial caller

  • Obtain the charge details and the date and place of the hearing. Determine the caller's relationship to accused:
    • friend or relative
    • client
    • potential witness or co-accused
    • police officer
    • potential surety
     
  • Confirm details of the retainer including who will pay, when and how much.
  • Obtain general information about the client, for example:
    • immigration status in Canada (citizen, permanent resident, visa, etc.)
    • languages spoken by the accused and proposed sureties—arrange for an interpreter if necessary, either through the courts or independently, for the bail hearing and the interviews
     
  • If the potential surety is the caller, begin to assess their suitability immediately (see surety questions below) and consider whether an additional or alternative surety may be required.

2Gather general information about the client and the charges

  • Is this a reverse-onus situation?
    • Does the client have outstanding charges?
    • If the client has outstanding charges, is the Crown likely to bring an application under s. 524 to revoke the client's previous release?
    • Is the client charged under the reverse-onus sections of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 or the Criminal Code of Canada?
     
  • What is the nature of the charges?
  • Is there a co-accused?
  • Was the co-accused released on a judicial interim release? On what conditions?
  • Are there potential sureties available and what is the plan of supervision?
  • Is the plan of supervision proposed realistic given the circumstances of the charges and the client?

3Attend court and obtain the synopsis and the client's criminal record

  • Review the synopsis, record of arrest and criminal record with the client.
  • Assess whether it is likely a justice will detain the client based primarily on previous convictions and explain to the client the ramifications of ss. 515(9.1) and 719(3) of the Criminal Code. There may be circumstances when it is prudent to advise the client to consent to detention in order to protect the ability to later argue for enhanced credit for pre-trial custody.
  • Consider whether the matter might more appropriately be heard in one of the specialty courts, e.g., mental health court, Gladue court or the integrated domestic violence (IDV) court.
  • Identify what supervision the court will expect in relation to this type of charge, taking into consideration the particular circumstances of the client.
  • Review and prepare the client regarding possible background information that will be presented to the court:
    • level of education
    • work history
    • residence or living situation
    • mental health background (if any)
    • health issues
    • previous record
    • immigration status
    • relationship to proposed sureties
    • relationship to co-accused
    • relationship to alleged victim
     
  • Review the domestic violence form that may have been prepared by the police and any other special type of evidence the Crown plans to lead at the bail hearing.
  • Determine if the Crown intends to rely on the synopsis prepared by the police as evidence of the offence at the bail or if witnesses will be called.
  • If a synopsis is being relied upon, review it in advance of the hearing to confirm the information is relevant, admissible and contains all known information that may be helpful to the defence position.
  • If the synopsis is missing information that may be relevant to the determination a justice must make at a bail hearing, prepare a list of questions to ask the Crown after the synopsis is read into the court record. It may be prudent to canvas these questions with the Crown in advance to avoid any unanticipated evidence at the bail hearing.
  • If information is available that may be useful to the defence but is not in possession of the Crown, consider the admissibility of this evidence and the procedure by which it may be admitted.
  • If viva voce evidence is being called, review the statement or notes of the proposed witness prior to the hearing.
  • Consider, depending on the nature of the charges outstanding and the potential weaknesses in the Crown's case, whether to wait for disclosure prior to conducting the bail hearing.
  • Consider whether the defence should require the Crown to call evidence through an officer instead of relying on the synopsis.

4Interview the client

  • Obtain background information from the client in order to
    • establish identification
    • address the primary grounds including roots in the community
    • address secondary and tertiary grounds
     
  • Inquire as to your client's health and medications, and tailor a plan to meet the client's needs as well as concerns anticipated by the court.
  • Confirm that the synopsis does not implicate a potential surety as a witness. If so, review the matter with the client and have a waiver signed outlining potential ramifications of the proposed surety's testimony.
  • Review the plan of supervision with the client to confirm that the client will be able to comply.
  • Review outstanding bail releases to ensure any new conditions of release do not conflict with an existing bail (e.g., residence locations).
  • Review the synopsis and criminal record of the accused with the client and any potential surety.
  • Tread carefully when seeking specific information from the client about the alleged offences prior to receiving full disclosure so as not to preclude possible future defences.
  • Obtain detailed written instructions from the client regarding all aspects of the process.

5Interview any prospective sureties

  • Typical sureties would include
    • family
    • friends
    • co-workers
    • employers
     
  • Usually a surety will only be able to act as surety for one accused at a time. An exception may be made if the surety is the parent of more than one accused person.
  • Confirm the surety's knowledge about the case and the source of that knowledge, and consider whether calling the surety may harm the case:
    • Has the proposed surety spoken to the client since the arrest?
    • Has the proposed surety spoken to the client about the alleged offence?
    • Is the proposed surety also a potential witness?
    • Is the proposed surety a potential co-accused in the case?
    • Has the proposed surety provided a statement to the police?
    • Has the proposed surety spoken to potential witnesses?
    • Does the proposed surety need independent legal advice?
    • Is the proposed surety presenting testimony that could have a negative impact on issues at trial?
     
  • Background information needed from the proposed surety includes:
    • date of birth
    • address and length of time the proposed surety has resided at that address
    • names of those who reside at the address with the surety
    • work information, including schedule
    • educational background
    • volunteer work/special skills
    • criminal record
    • outstanding charges
    • status in Canada
    • equity the proposed surety is going to sign against (for example, real property, money in the bank and investments) and documents available as proof of equity
    • the relationship between the client and the proposed surety
    • length of time the proposed surety has known the client
    • during the time the parties have known each other, the frequency of contact that the proposed surety had with the client
    • whether the surety is familiar with the outstanding charges and criminal record of the client
    • whether the client and proposed surety have spoken about the current charges
    • whether the proposed surety has signed bail for the client in the past and, if so, whether there were any breaches of the bail
    • whether the proposed surety has ever signed bail for anyone in the past
    • if the surety has signed bail in the past, whether the bail was breached and whether the surety reported the breach to the police
    • plan of supervision
    • whether the client can live with the proposed surety
     
  • Will the proposed surety call the authorities if needed?
  • The surety will be required to pledge an amount of money based on ascertainable assets. The amount pledged should reflect the surety's means, balancing the ability to pay and the significance of that amount to the surety. The amount must reflect the nature and seriousness of the offence.
  • Is the Crown requesting a cash bail (s. 515(2)(d))? A cash bail will be ordered if the client is not ordinarily a resident in Canada or lives outside a 200 kilometre radius of the court's location (s. 515(2)(e)).
  • If no surety is available, consider alternatives such as the Toronto Bail Program (in Toronto), Elizabeth Fry Society or the John Howard Society as resources. Consider the program's requirements for coverage and the delay necessary to have the client interviewed by them.
  • For an "own recognizance" bail, consider the client's testimonial capacity and prepare the client to testify about background information, the plan of release and the client's ability to comply with proposed bail conditions.
  • If a client is likely to testify at the bail hearing, remind the client that the Crown cannot ask about the allegations before the court unless the client testifies about these allegations first. Having the client testify about the allegations before the court at a bail hearing is rarely advantageous except in very unusual situations perhaps involving a confirmed alibi.
  • If the client has mental health issues, consider whether a mental health plan should be prepared prior to the bail hearing to support a plan of release.
  • Consider whether the bail hearing should be heard in one of the specialty courts such as the mental health court, IDV court or Gladue court.

6Speak to the assistant Crown attorney

  • Speak to the assistant Crown attorney prior to the bail hearing to determine the position on detention or release, the witnesses who may be called and the grounds on which the assistant Crown attorney seeks detention.

7Attend the bail or show cause hearing

  • The Crown will announce its position to the court, including the grounds on which it seeks detention: primary, secondary and/or tertiary. Submissions need only address enumerated concerns.
  • The Crown will either call witnesses or read in the police background about the client. This information can be challenged or contradicted by defence witnesses (sureties).
  • The Crown will either call witnesses or read in the synopsis of the allegations as prepared by the police.
    • If an officer is testifying, disclosure of the officer's notes, statement and other documents the officer may rely upon should be requested before the bail hearing to enable counsel to prepare for cross-examination
    • If the allegations are weak or misleading, counsel should consider requiring an officer to testify rather than allowing the Crown to rely on the synopsis
     
  • The defence will be given an opportunity to ask questions about the synopsis. The most helpful questions to the defence case are those that highlight problems with the Crown's case.
  • The sureties are then called to the stand and examined in chief and in cross-examination.
  • Other evidence may be called at the bail hearing, including potential witnesses. Always consider the potential impact on trial prior to disclosing or calling potential witnesses at a bail hearing and seek written instructions from the client.
  • Whichever side bears the onus makes submissions first. Consider the following issues when formulating submissions, based on s. 515(10)(a)–(c):
    • Primary grounds of concern (flight risk and attendance at court), s. 515(10)(a):
      • Is there a history of failing to comply, failing to attend court or a change in stability that will prevent future occurrences?
      • Does the client have roots in the community, for example, employment, school, family, length and stability of residence or involvement in a faith organization?
      • If there are potential concerns on the primary grounds suggest conditions that will address these concerns, such as residing with a surety, requiring a surety to drive the client to and from court, requiring the client to report to a reporting centre on a regular basis, electronic monitoring, requiring the client to deposit travel documents etc.
      • If bail program supervision is proposed, remind the court of the reporting and stabilizing elements of being in the program.
       
    • Secondary ground concerns (substantial likelihood to reoffend and danger to the public), s. 515(10)(b):
      • If there are potential concerns on the secondary grounds emphasize factors such as strong surety supervision, a gap in the criminal record, compliance with bail on previous occasions, non-relation between historical charges and present charges, cooperation with the police, etc.
      • If bail program supervision is used, emphasize the reporting and stabilizing elements of being in the program and the assistance provided by community resources.
      • Other proposed conditions to consider that could address the concerns of the court are
        • forbid contact with the complainant or witnesses except through counsel
        • require a geographical boundary
        • impose a curfew or house arrest
        • require reporting to police
        • forbid alcohol or non-prescribed drugs
        • require counselling or treatment for anger management, addictions or mental health concerns
        • forbid firearms or weapons
        • require attendance at school or the seeking and maintaining of employment
        • forbid contact with the co-accused except through counsel
       
    • Tertiary grounds of concern (detention necessary to maintain public confidence in the administration of justice), s. 515(10)(c):
      • These grounds are only to be used in extreme cases of grave allegations and a strong Crown case. These grounds can be countered by advising the court that, even in cases of near-certain guilt, justices have released based on the fact that their job is to determine the bail application and to assess the strength of the case, not to try the case, and that the presumption of innocence applies.
      • Remind the court that strong Crown cases do unravel at trial and that punishment (incarceration) should not start prior to trial. Moreover, public concern about safety can be relevant to the tertiary ground, but this is not the exclusive consideration when assessing public confidence in the administration of justice. Rather, the assessment is a broad one and requires a reasonable person test where the person is informed of legislation, the Canadian Charter of Rights and Freedoms and the philosophy informing them.
      • Emphasize weaknesses in the Crown's case at this stage.
       
    • Always propose that your surety be named to avoid any unforeseen difficulties with documentation once a bail has been set.
     

8Fulfill post-hearing tasks

  • Consider a short remand for the client until the paperwork is signed by the sureties and the bail is officially in place.

Statutes and Rules