Frequently asked Questions: Bail

1. What is a “show cause hearing” that everyone keeps talking about? The police officer told me over the phone that my spouse/relative/friend is being held for “show cause”.
2. Is everyone who is arrested for a criminal offence held for bail?
3. If a person is held for a bail hearing, will there automatically be a contested hearing?
4. If a person is held for a bail hearing, will they get a lawyer? Does someone need to find them a lawyer?
5. When will a person’s bail hearing be?
6. I have been asked if I will act as a person’s “surety”. What does that mean? What are the responsibilities of a surety?
7. Can there be multiple sureties?
8. Do I have to pay money up-front if I am going to be a person’s surety?
9. If I am proposing myself as surety, what do I need to bring with to court?
10. I have a very low income. Can I still act as surety?
11. Can I act as a surety if I have a criminal record or outstanding charges?
12. Can I act as a surety for more than one person at a time?
13. Can I ask the defendant’s lawyer for advice on whether I should be a surety?
14. Can I change my mind after I agree to act as a surety? (“I want to travel and don’t want to be responsible for supervising the bail.” “The matter is taking too long to get to trial.” “The person I bailed out isn’t breaching his bail yet, but I’m worried that he is going to.” “The person I bailed out isn’t listening to me.”)
15. What if the bail conditions need to be changed after a person is released?
16. Does a person require a surety before they can be released?
17. If I act as a surety, will the person I am bailing out be required to live with me?
18. Will the person I am bailing out be required to abide by a house arrest, curfew, and/or electronic monitoring?
19. Every time I ask about a person’s bail, I keep being told about their “recognizance” or “undertaking”.
20. Can a person ask for multiple bail hearings? The person just lost his first bail hearing, but I can put a better plan together in time for a new bail hearing in the next day or two.
21. What should I expect when I attend court to act as a surety?
22. Are there any differences for youth bails?

What is a “show cause hearing” that everyone keeps talking about? The police officer told me over the phone that my spouse/relative/friend is being held for “show cause”.

Interestingly enough, the phrase “bail hearing” isn’t found anywhere in the Criminal Code. Instead, the law refers to a hearing when one side is required to “show cause” why a person should or should not be detained prior to their trial. Therefore, the phrase “show cause hearing” is used interchangeably with “bail hearing”, and “being held for show cause” is used interchangeably with “being held for a bail hearing”.

Is everyone who is arrested for a criminal offence held for bail?

No. A person arrested for a criminal offence without a warrant can be released from the scene without conditions, or released from the police station with or without conditions. In fact, the Criminal Code creates a presumption that these options should be considered by the police before holding a person for a bail hearing.

If a person is held for a bail hearing, will there automatically be a contested hearing?

No. Once a person is brought to court for a bail hearing, the Crown will review the file, discuss the case with a lawyer or duty counsel, and decide whether they will consent to the person’s release and on what conditions, or whether they will contest the person’s release and require a hearing. The Crown’s decision is not always known when phone calls are being made to find someone to bail a person out.

If a person is held for a bail hearing, will they get a lawyer? Does someone need to find them a lawyer?

All bail courts in Ontario are staffed by duty counsel who are paid for by Legal Aid. They will assist all new arrests while they are in custody in court with their bail until they get a lawyer or are released. Duty counsel are made up of lawyers employed by Legal Aid Ontario as well as private lawyers who are brought in for the day to assist. (Our senior lawyer, Daniel L. Lerner, often assists the bail courts as a per diem duty counsel).

The downside of duty counsel is that they are very overworked (especially in the busier courthouses), they have limited resources to follow up on issues and develop a release plan, and they are not “assigned” to any given person or file (duty counsel rotate from day-to-day, and in-custody individuals have to work with the duty counsel in their court on any given day, who is relying on prior notes made by their colleagues). In addition, duty counsel cannot meet with individuals after court is closed. However, duty counsel are very experienced lawyers in addressing bail situations.

When possible, it is often better for a private lawyer to be retained for bail. If the person in custody does not already have a lawyer, they are usually dependent on their friends and family to find them a lawyer. (A person can apply for Legal Aid while in custody, but they must still find a lawyer who is willing to act on the legal aid certificate.) Duty counsel can call a private lawyer on a person’s behalf, but only if the person has a specific private lawyer in mind. Duty counsel cannot generally refer or recommend any particular lawyer.

If legal aid is unavailable, or if a lawyer cannot be located to act on a legal aid certificate, it will often be up to the friends and family to pay for the lawyer’s retainer. The rates of lawyers can vary, depending on the complexity of the situation. (At Lerner Law, we charge reasonable rates for bail hearings, which will vary depending on the nature of charges and the complexity of the release plan. For more information, see our page regarding how our fees are determined.)

A private lawyer can meet with family and friends after-hours, work to develop a release plan – even prior to a person’s first appearance in bail court, and negotiate with the Crown to ensure a person’s release.

When will a person’s bail hearing be?

That can depend on a number of factors, including the complexity of the situation, the position of the Crown, the availability of potential “sureties” (see below for what that means), whether there are outstanding charges that have to be brought in, and how busy the court is.

A person is required to appear before a court within 24 hours of being detained by the police. At that point, if bail cannot be addressed, then the court may only adjourn a person’s bail hearing for a maximum of three days, unless the defence consents to a longer adjournment.

In busier courthouses, there can sometimes be a backlog of one day or so with bail hearings that are ready to go. There can often be a lot of waiting to have a person’s bail addressed – especially if it is contested. However, if you are bailing a person out, it is important to be ready on very short notice to attend court so that the person’s bail hearing can be heard when time becomes available.

I have been asked if I will act as a person’s “surety”. What does that mean? What are the responsibilities of a surety?

If you are “bailing a person out”, that usually means you are proposing yourself as that person’s “surety”.

A surety has to be approved by the court (either in the court where bail is being addressed or afterwards in the office of a justice of the peace.

A surety is required to supervise a person’s bail conditions, ensure that the terms are being met, ensure that the person is attending court, and report any violations or problems with the bail. There is a monetary consequence for a surety if bail is not followed or if the person being supervised misses court.

Can there be multiple sureties?

In more serious cases, or when more than one person is required for adequate supervision, the court will sometimes impose multiple sureties. Sureties are jointly and severally liable for the monetary consequence if the bail is breached or a person does not attend court.

Do I have to pay money up-front if I am going to be a person’s surety?

No. Generally in Canada, bails are done as a “without deposit” bail (the exception is when a person is not an ordinary residence of the province, or does not ordinarily reside within 200 km of where they are in custody). Instead, the person being bailed out and the surety promise a certain amount of money. If the bail is breached or the person being bailed out does not attend court, the person and their surety can be liable for up to the amount promised (the more serious the breach, or the less due diligence the surety did, the more liable a surety will be found.

The bail can recommend how much of the total amount being promised each surety is responsible for.

The determination of how much a surety is liable for is determined at a separate hearing before a judge in the Superior Court of Justice called an “estreatment hearing”. If the judge orders the surety to be liable, the Crown will essentially have a civil judgment in that amount against the surety, and can seek all of the normal civil remedies for enforcement of a judgment (including garnishment of paycheques and liens on property).

If I am proposing myself as surety, what do I need to bring with to court?

At a minimum, you will need to bring with photo identification, and proof of you address if it is different from what is on your photo identification (i.e. mail addressed to you recently at the address in question).

It will also assist if you bring with bank statements (that covers a time span of at least the prior month), paycheque stubs, and/or proof of ownership of any property being relied on and the property value. Not all of that is required, but it can be helpful. Ultimately, you will need to be able to convince a justice of the peace that you have assets to support the amount you are promising. (Note that automobiles are not usually considered.)

I have a very low income. Can I still act as surety?

In many cases, yes. Usually the focus of the Crown and court is the relationship between the surety and the defendant in order to ensure that the defendant will listen to the surety and that the surety will supervise the defendant properly. As long as the monetary component is sufficiently high enough to act as a deterrence, then that will usually satisfy the court.

In more serious cases, especially in major fraud cases, cases involving organized crime, and homicide or fatalities, a larger amount of money will often be required.

Can I act as a surety if I have a criminal record or outstanding charges?

A criminal record is not an automatic bar against being a surety. It will depend on the nature of conviction, the sentence, how old the conviction is, how similar the conviction is to the offences now in question, and how different you are now in character than when you were convicted.

A person cannot act as a surety if they have outstanding charges.

Can I act as a surety for more than one person at a time?

Generally speaking, no. This is primarily due to the burden of being a surety. In extremely rare cases, a court has allowed a person to act as surety for more than one person, but those were very unique circumstances.

Can I ask the defendant’s lawyer for advice on whether I should be a surety?

No. If you need legal advice about whether to be a surety, you must ask an independent lawyer.

The defendant’s lawyer has to look out for the defendant’s best interest. This is the case, whether or not you are the one who is actually paying the lawyer. Since it will always be in the defendant’s best interests to be out of custody, and since a surety can become civilly liable if the defendant breaches bail or misses court while out of custody, it is a conflict of interest for the defendant’s lawyer to give legal advice to a surety.

That being said, there is nothing wrong with the defendant from explaining the process, responsibilities, and consequences of being a surety. They just cannot give legal advice about whether to be a surety.

At Lerner Law, if a surety requires legal advice, we can refer you to lawyers for independent legal advice.

Can I change my mind after I agree to act as a surety? (“I want to travel and don’t want to be responsible for supervising the bail.” “The matter is taking too long to get to trial.” “The person I bailed out isn’t breaching his bail yet, but I’m worried that he is going to.” “The person I bailed out isn’t listening to me.”)

Yes. You can attend the court at any time and request to pull the bail. You are not required to give a reason why. A justice of the peace will then issue a warrant for the person’s arrest, after which the person will have another opportunity to address their bail.

What if the bail conditions need to be changed after a person is released?

Defence counsel and the Crown can negotiate to vary a person’s bail. If the Crown agrees, then both the defendant and the surety need to sign a form. Once the form has also been witnessed and signed by the Crown, it is filed with the court, at which time the variation comes into effect.

If the Crown does not consent, then a bail review application must be brought in the Superior Court of Justice.

Does a person require a surety before they can be released?

No. In fact, the law requires that the court first consider whether a person can be released on their own before requiring sureties. However, in Canada, especially in Ontario, it is becoming more and more of the status quo that persons are only being released with a surety. (This is becoming part of an ongoing debate about whether the need for a surety is becoming too prevalent in our bail system, but that’s a different discussion.)

If a surety is not available, there are other possible plans that can be considered (including being supervised by the Bail Program or the John Howard Society), but a person has a higher chance of being released if they have a surety.

If I act as a surety, will the person I am bailing out be required to live with me?

Not always. It will often depend on the nature of the charge, how high the risk is to the alleged victim including the person’s relationship with the alleged victim, the person’s residential situation leading up to the arrest, and the person’s history in the criminal justice system. This will be something discussed the lawyer or duty counsel will discuss with you before you decide whether to act as a surety. If the bail is being contested, a residential surety will often have a higher likelihood of success.

Will the person I am bailing out be required to abide by a house arrest, curfew, and/or electronic monitoring?

Most releases do not involve house arrests or curfews, unless the circumstances of the offence or the offender call for it, or the proposed surety requires it before they are willing to act. House arrest bails are supposed to be rare (although there has started to be a rise in the number of house arrest bails being ordered in Ontario).

Generally, house arrests and curfews for bail are ordered without electronic monitoring. However, in a contested matter, if there is a real concern that without electronic monitoring the person may be detained, the defence may propose electronic monitoring. In those cases, the electronic monitoring is done through a private company, with the cost of the assessment and ongoing monitoring being paid for by the defendant. Electronic monitoring on bails is still quite rare in Ontario.

Every time I ask about a person’s bail, I keep being told about their “recognizance” or “undertaking”.

In the Criminal Code, there is no such court order or form called “bail”. Instead, there are different types of releases that can be ordered.

If a person is released without the need for a surety or a monetary component, then they are being released on their own “undertaking” to follow the conditions and come to court.

If a person is released with a monetary component, whether with or without a surety, and with or without a deposit, then they are released on a “recognizance”.

Can a person ask for multiple bail hearings? The person just lost his first bail hearing, but I can put a better plan together in time for a new bail hearing in the next day or two.

Generally speaking, a person only get “one kick at the can” when it comes to bail, and it is very important to put your best foot forward. Once a person has been detained at a bail hearing, it becomes quite difficult to get that person out on bail in the future without the Crown’s consent.

A person can automatically have a new bail hearing before the judge hearing their preliminary inquiry, trial, or sentencing. However, except in the cases of early guilty pleas, that can be months or years down the road depending on the case.

A person may apply for a “bail review” to the Superior Court of Justice, which is a type of appeal with respect to the bail. However, even in best case scenarios, it can take weeks to put the materials together and schedule the application hearing. Once that is done, it is not an automatic new bail hearing. Instead, the defence must showed that the justice at the bail hearing erred or that there is a material change of circumstances. In addition, it will cost additional legal fees to bring a bail review, as it is a superior court application.

Therefore, it is vital that the best possible plan be presented at a bail hearing. That may mean waiting a few days (or weeks) to put the best plan together.

What should I expect when I attend court to act as a surety?

If you have retained a lawyer, you and the lawyer will need to arrange where and when to meet at the courthouse. If a lawyer will not be attending, then you need to check-in with duty counsel so that they can interview and prepare you.

You will then have to wait until the court is ready to address the person’s bail (which may or may not be that day – the lawyer or duty counsel will keep you informed). The person will be brought up to court (or in jurisdictions where bail is done by video, the person will appear on the video screen). The Crown will read out the allegations of the offence, list the outstanding charges, and provide a copy of the person’s criminal record. If the Crown is consenting to the release, the parties will then propose the conditions for the release and the amount. In some cases the court will name you as a surety (sometimes after asking you some questions briefly while you are under oath), and in some cases you will have to go to the justice of the peace in an office to be approved (again, after swearing to certain answers under oath).

If the bail is contested, you will be called to the stand to testify. The defence counsel or duty counsel will ask you questions about your relationship with the defendant, how you plan to supervise them on release. The Crown will then have an opportunity to cross-examine you various related issues. Both sides will then make submissions, following which the court will make its decision about whether to release the defendant on bail.

In either case, in most jurisdictions, you will also be required to provide your photo identification beforehand to allow the police do a criminal record check.

Are there any differences for youth bails?

If the offence was alleged to have been committed when the offender was under 18 years old, then the youth provisions apply to bail.

The main differences a proposed surety needs to be aware of is that it is much harder for a youth to be detained. A youth must be released on bail unless they are charged with a “serious offence” (which is defined by statute). Even then, a youth is never required to justify their release – the Crown always has the burden of justifying their detention. There are also many more resources available to support a family when a youth is released on bail.

In the event the court does decide to detain a youth, the court must consider if there is a “responsible person” that can supervise the youth’s detention in the community. A “responsible person” is similar to a surety in that they are both required to supervise the defendant while they are on bail. However, a responsible person does not have a monetary component. Instead, they a responsible person can be charged with a criminal offence if they wilfully allow the bail to be breached. So instead of a monetary liability, the deterrent is that you may be charged as the supervisor if the bail is breached. Therefore, I always recommend that a proposed responsible person get independent legal advice before agreeing.