There have been a lot of articles written about the law surrounding bail bearings, the vast majority of which are very well written.
Of course, knowing the law on a bail hearing is very important. But the practice of law is more than just being knowledgable in the law. It is just as much about knowing and dealing with people. This includes everyone involved in the bail process: the accused, the proposed surety, the crown attorney, the police, and the justice of the peace (or judge as it may be).
An inability to properly deal with any of the parties can be the difference between success or failure at the bail hearing stage.
This is what the focus of my post is going to be about. You will learn about my process for preparing and conducting a bail hearing.
(1) The Police
My involvement in the bail process often begins when I am contacted by the police calling to inform me that a person they have arrested is requesting my assistance as their lawyer. In speaking with the Officer in Charge of the investigation, I try to gain as much information as possible regarding the allegations: what are the charges, what are the facts being alleged, what witnesses or evidence do the police actually have. It is not uncommon for the police to not give much information at this stage, and quite frankly, I don’t push the issue. I know that my client has the fundamental right to know the case and evidence against him or her and I will get that information whether or not the officer tells me. The point of this exercise is not so much about the answers I get, but the message I am portraying to the police: “I known what I am doing, I am serious about this matter, and I will be vigorously defending my client’s rights”
I then ask the police for as much information about my cient. Were they cooperative upon arrest, what is their criminal record (if it is a new client), what is the police position on bail. Depending on the circumstances, it may be possible to negotiate my client’s release directly from the station. Even if the police are not inclined to release my client, speaking to them about the matter may lead to them making a recommendation to the Crown for my client’s release if certain conditions are met.
I am always polite, respectful and courteous to the officer. Upsetting anyone with rudeness is a sure fire way to make the entire bail process more difficult than it needs to be. It is important to build a positive rapport with everyone you deal with. Your reputation means a lot in the practice of law and is integral to your success.
(2) My Client
After speaking to the police, I then ask to speak to my client. Among other things, I inform my clients about their fundamental right to silence under the Canada Charter of Rights and Freedoms. I will detail my approach to the right to silence in another post.
After I ensure that my client is aware of his Constitutional rights, we start to speak about the bail process. I will advise my client of the police officer’s position on bail and whether or not it’s is likely that he would be released from jail that day. If it appears as though the client will be take to court for a bail hearing, I need to start preparing as soon as possible.
First, I canvass if the client has a potential surety in mind. I obtain their full name and telephone number from my client. I also obtain as much information about anyone else that might be able to be a surety if my client’s ideal surety is not able to step in.
I then ask my client about his history with the criminal justice system. Does he have a criminal record (if so what are the details), does he have any outstanding charges, is his proposed surety, his current surety on any outstanding charges, has he ever been found guilty of breaching his bail, probation, or any court orders? It is important to get as much information from these questions as possible. The answers that are given could greatly affect the client’s ability to get bail. these answers will also allow me to assess what an appropriate plan of release to propose to the court would be.
(3) Proposed Surety
A surety is someone who puts themselves forward for to the court who pledges to supervise an accused person in the community. I conduct thorough interviews with proposed sureties. The reason for this is three-fold (1) I need to determine whether or not the surety is a suitable one (knows my client well enough, has sufficient assets to pledge for my client’s release, has never been a surety before for someone who has breached their bail, etc); (2) I need to determine if the surety can implement a plan of supervision that the Court is likely to endorse (will the surety be able to properly supervise my client to the level deemed appropriate by the Court); (3) I need to determine whether or not there are any conditions the surety will be insisting be ordered by the Court in order to agree to supervise my client in the community; (4) I need to prepare the surety for the bail hearing.
In preparing the proposed surety for a bail hearing, I will go through the entire bail hearing process with the surety in advance so that they are nto caught off guard during the proceedings. I will go through the allegations of the Crown, the Criminal Record (if any) of my ciient, and I will even do a mock cross-examination of the surety as if I were the Crown so that the surety knows just what to expect. It is through this type of meticulous preparation of the surety that we will be best prepared to conduct a successful bail hearing.
(4) The Crown Attorney
Once I arrive at Court, I will attend at the bail court to discuss the matter with the Crown Attorney. First I ask to see the Crown Synopsis of the charges against my client. I ask for any other information that may be relevant to the bail hearing as well, such as what my client’s criminal record is, and whether or not he has any outstanding charges as well.
Generally, I will discuss with the Crown whether or not they are in a position to consent to my client’s release. This is a negotiation process, where I speak to the Crown about my proposal for my client’s release and why it is a sufficient plan. Often times, the Crown Attorney agrees and my client will be released on the consent of the Crown. However, the Crown may be of the view that the charges, or my client’s past criminal history is too significant to agree to his release. This of course means we will have to run a contested bail hearing, usually before a Justice of the Peace
(5) Judge / Justice of the Peace
The bail hearing usually takes place before a Justice of the Peace, but can take place before a Judge. The Crown will usually begin by reading the allegations to the Justice of the Peace. In some more serious matters, the Crown may call an officer to testify regarding the charges as well. In either case, the defence has the opportunity to either cross-examine the officer or ask questions of the Crown in regards to the allegations (if a synopsis is read). I make it a practice to always ask a few questions of the Crown in regards to the Synopsis. These questions are usually geared at exposing holes in the strength of a Crown case. Although, the strength of the Crown case is not always a consideration in a bail hearing, I am of the view that a Justice of the Peace will be more likely to release an accused person if it can be demonstrated that the Crown’s case is not as strong as it originally seems.
After the Crown is finished presenting the allegations, the surety will be examined and cross-examined. If something arises out of the Crown Attorney’s cross-examination, I can ask further clarification questions before the witness is excused. I tend not to do so, unless it is something very important. I like sending the message to the Justice of the Peace that I am confident in the plan. This is why preparation of the surety is of utmost importance. A well-prepared surety should be able to withstand a vigorous cross-examination from a skilled Crown Attorney.
Once the sureties have completed their testimony, it is time for final submissions. There is a usual order depending on which side has the burden of proof in the bail hearing. There are many crimes and situations which require an accused to demonstrate to the Court why they should be released. There are other situations where the Crown bears the burden of establishing the accused should remain in custody while awaiting trial. Normally the party who bears the onus at the bail hearing, will go first in final submissions.
I like to always go first. I often ask the Court if I may, and the Crown often allows me to. The reason for this is simple: at this point in the proceedings, I have a pretty good idea what the Crown’s arguments are going to be. I can limit the effectiveness of those arguments by confronting them before the Crown Attorney has had the opportunity to bring them to the attention of the Court. I can present to the Court why the release of my client is appropriate in the circumstances, not withstanding the Crown Attorney’s concerns. Additionally, once the Crown has presented their final submissions, I have the right of reply. Quite simply, in an argument it is always nice to get the last word!
It is important to always be polite and respectful to a Judge or Justice of the Peace. Never interrupt and always maintain eye contact when addressing the Court. It is also very important to watch the Justice during the course of the proceedings – sometimes they give clues as to what impresses them or what bothers them about the matter before them. Picking up on these cues can be very important to the ultimate success of your bail hearing. If you can address their concerns without having them ask you about them, you could be well on your way to success.
Remember, we in a bail hearing we are always dealing with people. Learning how people think, act, and react is integral to conducting a successful bail hearing.
My preparation process is meticulous. But I believe in giving each of my client’s the best possible opportunity to be released from custody. I believe in vigorously defending their rights at all stages of the Criminal Court process.
Neil Singh is an experienced criminal lawyer who has a proven track record of successfully defending people charged criminally. With offices conveniently located in Toronto and Newmarket, we are able to assist those charged throughout the GTA.
Representing individuals charged in Toronto, Etobicoke, Scarborough, North York, Rexdale, York region, Newmarket, Aurora, Richmond Hill, Vaughan, Woodbridge, Maple, Kleinburg, Concord, Markham, Keswick, Georgina, King City, Peel Region: Brampton, Mississauga, Malton; Orangeville, Caledon, Durham region, Oshawa, Whitby, Ajax, Pickering, Halton Region, Milton, Oakville, Burlington, Georgetown, Halton Hills, Simcoe County, Barrie, Bradford