If you are arrested and not released by the police, they must bring you in front of a judge or judicial justice within 24 hours of your arrest for a bail hearing (also referred to as “judicial interim release”). If you need more time to prepare, or if your bail hearing is particularly complicated, your hearing may be set to a later date. Usually bail hearings happen in Provincial Court. However, in limited circumstances, such as for a charge of murder, the bail application will be made in the BC Supreme Court.
A bail hearing is where a judge decides whether to:
- release an arrested person and under what conditions, or
- keep them in custody until the trial date.
It is very important to talk to a lawyer before the hearing. If you do not have a lawyer, a free lawyer (duty counsel) will be on hand to give you advice, negotiate with Crown counsel, and represent you in the bail hearing.
You are entitled to the presumption of innocence. The judge will only decide to keep you in custody or impose a condition upon release if the Crown shows that it is necessary:
- To make sure you attend court: the judge will consider your criminal record, any history of failing to appear in court, and connections to the community.
- To protect the public: the judge will consider if you have a record of violence or failing to follow court orders.
- To maintain confidence in the administration of justice: Usually only for serious cases. The judge will consider the seriousness and circumstances of the offence, the strength of the Crown’s case, and the potential sentence.
For certain offences, you are responsible for demonstrating why you should be released (this is called a “reverse onus” situation).
If you are not ready to proceed, you can ask for your bail hearing to be adjourned (meaning rescheduled) to another date.
If you have been charged with murder or other serious offences listed in section 469 of the Criminal Code, there are different procedures in place for obtaining bail and you should consult a lawyer.
A surety is a person who agrees to make sure an accused follows their bail conditions. They may agree to give up money or an interest in property if you fail to follow your conditions. If they think you will not follow your conditions they may report you to the court and your bail will be revoked
How to Prepare for a Bail Hearing
Remember: A bail hearing is an extremely important hearing. If you are denied bail you will be in jail until trial or until your bail is reviewed (see below). If you are released, the types of conditions you are released with can severely impact your life. If you do not follow your conditions you could be charged with another offence or have your bail revoked and be taken into jail. This is why it is very important to prepare for your bail hearing. At bail hearings, the Court typically is interested in understanding your personal circumstances. For that reason, evidence typically presented by the accused includes:
- where you will be living;
- who you will be living with;
- what you will be doing if you are released from custody (work, school, etc.);
- if there is anyone willing to vouch (be a surety) for you;
- your willingness to obey conditions of your release; and
- if you or another person can deposit money with the court as a guarantee of you accepting the conditions of your release
Talk to a lawyer: You can contact your own defense counsel or talk to duty counsel. A lawyer will help you come up with a plan to give you the best chance of being released on bail. A lawyer will interview you and present your personal circumstances to the judge.
Find out Crown’s position: The Crown may want to hold you in custody until trial or they may be willing to release you under certain conditions. If you agree to these conditions you may be “consent released” and not have to go through a full hearing.
If they want to detain you or you do not agree with the conditions they want, it is important to find out why. You will have the opportunity to show why the Crown’s concerns are unfounded or can be relieved with certain conditions to your release.
Make a plan: While it is usually up to the Crown lawyer to convince the judge why you should be detained, it is usually helpful to provide information or a plan to convince the judge that detention or restrictive conditions are unnecessary. If the risk of being detained is high, it may be worth delaying your bail hearing to come up with a stronger release plan, get witnesses, find a surety etc.
If you are granted bail
If the court grants bail, you will be released from custody. The court will impose one or more bail conditions (rules) that you must follow.
Common conditions include:
- reporting to a bail supervisor
- not contacting the victim
- attending a treatment program, or
- following a curfew.
It is very important to follow your bail conditions. If you do not follow your bail condition, you could be charged with a separate offence called a “breach”. If you are worried you will not be able to follow your conditions you should talk to a lawyer, bail supervisor or Crown about changing your conditions.
If you commit a breach or a new indictable offence while on bail, the Crown may revoke your bail and you will have a new bail hearing and you will be in a reverse onus position where you will have to show the judge why you should be released.
If the court denies bail, you will remain in custody (sometimes referred to as “remand”) until your trial. However, you can ask for a review of this decision in the BC Supreme Court. To ask for a review, you must fill out a bail review application, and arrange to deliver (“serve”) it to the Crown and file it with the BC Supreme Court.
To be successful you must show that:
- the judge who made the order made an error, and that error affected the outcome,
- the circumstances have changed so that if the order was made today it would have been different, or
- it would be unjust not to order a release.
- Notice of Application (Form 1)
- Affidavit(s) in support
- Transcript of Provincial Court hearing
You will have to pay for the transcript which can be expensive. The review will be based on the transcript. You and the Crown can also present further evidence through affidavits or witnesses. The judge will either dismiss your application and keep the order the same or make changes.
If you are in jail for longer than 90 days you may be entitled to have your bail automatically reviewed. It is best to talk to a lawyer about your bail review options.