INVESTIGATION, ARREST, and BAIL in Ontario (Part 2 of 5)
Every charge begins somewhere.
Our starting point: the police must have reasonable grounds to believe a criminal offence has occurred. Whether it is through a civilian calling police and reporting a crime, or police witnessing or forming suspicion an offence has occurred. Generally, a criminal charge does not fall out of the sky.
Report of a crime and investigation:
Assume that Y has just witnessed X punching Z in the face. Y makes a call to police and advises that he has just witnessed X punching Z in the face. Given that a punch to the face at the very least constitutes an assault, the police show up to the location of the alleged offence. Before police form reasonable grounds that an offence has occurred they must gather information – they must establish that there is some evidence that the elements of the offence of an assault has occurred: X intentionally applied force to Z, and that Z did not consent. Police need evidence that:
- X applied force to Z
- X intentionally applied force to Z, and not by accident
- Z did not consent to the application of force
Police begin their investigation by speaking with Y, who provides police a detailed description of what happened, including identifying X and Z. Police believe Y is being honest and is providing credible information. Police proceed to speak with Z, who provides a statement that X punched him in the face, and that he did not consent. Police also believe Z is being honest and providing credible information. At this point, police have reasonable grounds based on credible information that X has committed an assault. Police approach X and asked him for his version of the events. X passionately claims he did nothing and that it was Z who punched him. Despite his plea, police arrest X for the assault.
Pause. Notice anything wrong? This is where we have a potential Charter breach.
Charter Breach
Given that police had reasonable grounds to believe X committed an offence, thereby making X a suspect, police had likely detained X when they approached him to speak, even before formally arresting him, and were required to advise X of his right to speak with a lawyer, and that X did not need to make a statement to police (S. 10(b) and s.7 of the Charter). Had X been afforded his right to speak with a lawyer, he would not have made any statement to police. Why is this important? Because the prosecutor will try and use X’s statement against him, suggesting he lied to police and therefore any evidence he may provide should not be trusted.
The Arrest
Following arrest, police have two options. They may release you, or they may detain you.
Release you: If they decide to release you, you are likely given a summons (a piece of paper). This paper is a legal document that requires you to appear in court on a specified date in the future. There are no conditions. They may also transfer you to the police station and provide you with an undertaking, or recognizance (both similar to a summons).
Detain you: If police decide to detain you, they must bring you before a Justice in court within 24 hours of your arrest. In the meantime, police will bring you back to the police station. They will read you your rights, they will account for all items you have in your possession, and they will place you in a holding cell until they are ready to transport you to court to address your bail.
Bail
Step 1: Contact your lawyer and make a plan
When you’ve been detained for bail, the first step is to contact your lawyer. Generally, police will contact your lawyer of choice and provide them with your name, what police station you are being held at, and what courthouse/courtroom you will appear in for bail. You then will have an opportunity to speak with your lawyer. Here, your lawyer will ask you whether you want to retain him to address your bail. If you decide to retain the lawyer, the lawyer will want to know if you have any friends or family that is willing to be your surety. A surety is a person who agrees to be legally responsible for your performance under bail, including ensuring you appear in court, and ensuring you adhere to curfews. Your lawyer also may ask how much money you and/or your surety can offer as collateral on bail. You and your lawyer must ensure that you have a sound plan: a good place to stay during bail, a responsible supervisor, and suitable conditions.
At this point your lawyer will begin to make calls to your potential sureties and arrange for them to come to court for you. Your lawyer will also do legal research and preparation in the event they must conduct a bail hearing.
Step 2: Negotiate with the Crown Prosecutor for your release
Once you’ve been transported to the courthouse for your bail hearing, your lawyer will meet you there and discuss the plan with you. Your lawyer will double check what conditions you are okay with, and what conditions are unreasonable. The lawyer will meet with the surety and acquire background information on them. The lawyer’s goal here is to present the prosecutor with the best plan possible to avoid a bail hearing and have you released on consent.
The lawyer will now speak with the prosecutor. The prosecutor and defence counsel will go over the initial police report to understand the circumstances of the alleged offence. They will both examine your criminal record, and the negotiations will begin. The defence counsel will try and persuade the prosecutor that the circumstances of the offence do not require detention, and that the release plan offered is sound. The prosecutor may or may not ask you agree to stiffer conditions, or they may ask for more background information on the surety.
The Crown consents to your release
In this scenario, your defence counsel and the prosecutor were able to agree on a release plan for you. Ultimately, the power to release you from custody on bail vests with the Justice, however, typically when the prosecutor consents to your release and both parties agree on the conditions, a Justice will very rarely reject a consent agreement.
The Crown does not consent to your release
If after negotiations the prosecutor does not want to consent to your release, you will need to conduct a bail hearing to be released. Similarly, there are certain offences where consent releases and immediate bail hearings are not available. These offences are listed in s.469 of the Criminal Code and include offences like first degree-murder and treason.
The Bail Hearing
A bail hearing is a hearing where the prosecutor must show cause as to why you should be detained in custody until your charges has been dealt with. The hearing takes place in front of a Justice of the Peace in the Ontario Court of Justice. If charged with a s.469 offence, the bail hearing takes place in the Superior Court of Justice in front of a Judge.
For most offences, the onus is on the prosecutor to show the Justice why you should be detained. For some offences, there is a reverse onus – an onus on you to prove why you should be released. Both must be proved on a balance of probabilities.
The law is clear: the starting position is the release of the arrested person, without conditions. The next position is the release with some conditions. The steps go through more restrictive releases until the last step, which is detention. Therefore, it is the onus of the prosecutor to show why you should be detained, and why a more restrictive release is warranted over a lesser restrictive release.
The forms of release (from least restrictive, to most restrictive)
- Release without conditions
- Undertaking with conditions (promise to appear in court and follow any conditions included)
- Recognizance (promise to appear in court and follow any conditions included)
- Recognizance with surety (promise to appear in court, follow conditions, and have a supervisor)
- Recognizance without surety but with money deposit (promise to appear in court, follow conditions, give a money deposit as collateral if you breach)
- Recognizance with surety and with deposit (promise to appear in court, follow conditions, have a supervisor, and give a money deposit as collateral if you breach)
- NO RELEASE: Detention
There are three grounds available to the prosecutor to argue why you should be detained, in summary they are:
- Primary ground: Your detention is required to ensure your appearance in court.
- Secondary ground: Your detention is required for the safety and protection of the public - that if released you will likely commit an offence or interfere with the administration of justice.
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Tertiary ground: Your detention is required to maintain public confidence in the administration of justice, having considered:
- The strength of the prosecutor’s case
- The seriousness of the offence (i.e. violent assault, or failure to appear in court)
- The circumstances around the offence (is the alleged victim a minor? Was a firearm used?)
- The length of sentence if convicted (if found guilty, 2 months of jail compared to 10 years)
For example: if you have a past record of failing to appear in court, the prosecutor will argue that your detention is necessary, or you’ll miss your court appearances. If you have committed a violent offence, or you have been released from detention before and committed an offence while released on bail, the prosecutor will argue that your detention is required for the safety of the public. Finally, anything that falls outside of the two categories may fall into the third (tertiary) ground. For example, if you’ve committed an armed robbery and the prosecutor has a strong case against you, if you have a very extensive criminal record, or if the victim is from a vulnerable population, the prosecutor will argue your detention is necessary under the third ground.
At the bail hearing your lawyer will make submissions to the Justice why you should be released. These submissions include:
- your release plan and why the release plan should satisfy any worries of the court in releasing you
- case law/legal precedent where factually similar cases have resulted in release from custody
- showing flaws in the prosecutor’s case against you, and;
- lack of criminal record, or criminal record of release violations
You are released
If the Justice agrees with your lawyer’s arguments, you will be released on a form of release listed above, as the Justice sees fit. Once you are released, the next step in the process is your first set date court appearance, which I discuss in the next blog.
You are detained
In the unfortunate event the Justice agrees with the prosecutor’s argument, the Justice will issue an order for your detention. You will remain in custody under the Justice’s detention order until your matter is finished (charges dropped, guilty plea, or following trial). If you or your lawyer believe the Justice made an error in their decision, you may appeal the bail result – the bail review. Regardless, the next step is appearing in court for your first set date court appearance.
This article only provides minor scratch of the surface of the criminal process from the investigation, to the bail hearing. It is critical you retain a criminal defence lawyer as soon as you believe your rights and liberty are at stake. Please contact me 613-233-2542 or nikolas@nikolaslust.com to discuss