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What is Bail?

Officially called "judicial interim release," bail involves a justice of the peace or judge deciding whether you should be released back into the community pending the outcome of criminal allegations against you. The three main factors a court will consider in whether you should get bail are:

  • whether you are a flight risk who will not attend all your required court appearances;

  • whether you pose a risk to public safety or specific individuals due to possible new offences;

  • whether public confidence in the administration of justice would be undermined by your release.

Why Seek Bail?

Having a great trial defence is fruitless if you're going to spend months - maybe even years - locked up in pre-trial custody awaiting the start of your trial. Trial delays mean that you might take over a year to get to trial in the Ontario Court of Justice, and over two years to get to trial in the Ontario Superior Court of Justice.

Bail is that get out of jail free card that you need to get on with your life while fighting charges pending against you.

Making bail may be the single most important thing you can do towards mounting a strong defence to your charges. Without bail, you lose most of your resolution negotiation leverage, and risk serving more time in pretrial custody (maybe much more) than you would face even if convicted of the charge(s) you're facing. 

How to Make Bail: 3 Steps to a Get Out of Jail Plan

Making bail requires a good bail plan. If the charges against you were minor and you didn't have much of a criminal history, the police would probably have just released you at the scene so bail wouldn't even be an issue. Thus because you're being held for a bail hearing, there's a real risk you might be detained. Developing a sound bail strategy involves three steps.

1. Marshall resources to present a compelling release plan that reassures the court

Among the resources you can present to a court to convince it to grant you bail include:

  • Cash - a cash deposit of a few thousand dollars will often convince a court to let you out, though for very serious offences you might need a higher deposit; very large bails are usually addressed by pledges of real estate without deposit.

  • Sureties - more common than cash is a "surety" bail involving one or more people who pledge a sum of money (without deposit), and who promise to supervise you during your release. A surety is like a civilian jailer, who ensures you're home before your curfew, show up for court, and generally stay out of trouble. A good surety is someone you know well who doesn't have a criminal record (though a minor or a very dated record will usually be okay).

  • Conditions that Ensure you will Show Up for Court - like depositing your passport with the police or not leaving the province or a city.

  • Conditions that Protect the Public & Alleged Victim - these could include:

    • geographic restrictions - like staying out of a neighbourhood;

    • people restrictions - like not communicating with particular people;

    • activity restrictions - like not driving, consuming alcohol, or taking drugs;

    • activity requirements - like working or seeking work, going to school, or taking counselling;

    • time restrictions - like a curfew, or being in your residence 24/7.

2. Negotiate with the Crown prosecutor

If the Crown consents to your release, they'll be no need for a contested bail hearing, you'll have no risk of being detained, and you'll know in advance what the conditions of your bail release will be.

3. Prepare for a contested bail hearing

Even if you think you've got a chance at a consent release, you should still prepare for a contested bail hearing just in case the consent doesn't work out. That preparation could take days of effort to align all the required resources. You'll need to have all your witnesses present in court for a hearing, those witnesses must have been prepped to testify, and supporting documents must also be present to support your case. 

When to Seek Bail?

Don't rush to hold a bail hearing. You only get one shot at it. Rushing to hold a bail hearing 24 hours after your arrest, when all the elements of a good plan aren't yet in place, risks your being detained for month or years pending trial.

Better to take a few days if needed to line thing up properly, including making sure that all your witnesses and documents are available. That preparation will pay off.

Who Needs a Bail Hearing Lawyer?

If the police decide to release you with conditions, you don't need a bail hearing lawyer. 

Otherwise, if you're brought before a justice of the peace and the Crown won't consent to your release on simple conditions, you definitely need a lawyer. You'll be in lock up, so it will be very difficult for you to represent yourself in an effective way that results in marshalling all the resources you need to put in place for a viable release plan proposal to the court. 

Hiring a bail hearing lawyer is usually much less expensive than a trial or appeal lawyer, since most bail hearings last for less than a day. Legal Aid Duty Counsel may also be able to assist you with a bail hearing if you can't afford a private lawyer, and you can meet their strict financial eligibility requirements. 

Why Retain Our Firm to Represent You at Your Bail Hearing?

The firm has successfully run hundreds of bail hearings. We'll use our understanding of prosecutor and police practices to negotiate the best bail release possible for you, and fight for your release before a Justice of the Peace or Judge in a contested hearing if a negotiated resolution is impossible. A bail hearing is subject to a host of different rules than a trial; we understand those rules, and understand how to best present client as meeting all the release criteria that courts value.