The Ways of a Bail Bond
4.2 Basics of Bail and Bail Bonds
When a person is charged with a criminal offense, they are either released by the police or detained for bail hearings.
The amount of bail that will be needed to be paid for a defendant’s release will be set by the court system. The lionsbailbonds homepage can help you with bail bonds.
4.2.1 Summons and Subpoenas
When the police do not arrest the accused, he may be compelled to appear by way of a subpoena (issued by the police and subsequently confirmed by a justice of the peace, when the charges are laid) or by a summons issued by a justice of the peace when the charges are laid. A summons and summons are official documents that require a person to appear in court at a specific time and place to answer a criminal charge. These documents are generally used in less serious cases where the police do not believe that conditions should be imposed on the accused and that he or she is not afraid of the accused failing to appear in court. They are not generally used in cases of family violence.
The subpoena and summons often require the defendant to report to the local police station on a certain date before his or her first court appearance so that fingerprints can be taken and photographs were taken. There is no discussion of the offense at the police station and there is no need for the accused to be accompanied by a lawyer. Defendants should be informed that they can be arrested and charged with failing to appear if they do not report to the police station so that their fingerprints are taken or they do not appear in court on the scheduled date.
4.2.2 Promise to appear and commitment
If the accused is arrested without a warrant, the Criminal Code requires the arresting officer (section 497) or the officer in charge of the police station (section 498) to determine whether the detention is necessary for:
- identify the person;
- collector keep evidence of the offense or evidence thereof;
- prevent the offense from continuing or repeating, or from another offense.
A police officer may also detain an accused in custody if he has reason to believe that the person will not appear in court if released.
If detention is not necessary, the police must release the accused from the police station. In making this decision, the police generally take into account the defendant’s history (past misconduct, education, family and employment), the circumstances surrounding the charge and the complainant’s wishes. If he is not released by the police, the accused must be taken to court for a hearing on bail (“bail”) within 24 days. hours, or “as soon as possible” thereafter. Bail practices are discussed below.
An accused who is arrested without a warrant and who is not detained for bail hearings may be released by the police 1) upon the issuance of a subpoena or if a summons is issued; (2) if he delivers a promise to appear, or (3) if he enters into an undertaking. If he is arrested on the basis of a warrant, the defendant may only deliver a promise to appear or enter into an undertaking.
The subpoena and summons are described above. The promise to appear is similar to the subpoena, but must be signed by the accused. In addition, the undertaking requires the accused to meet certain conditions, failing which he will have to pay a maximum sum of $ 500. The commitment may or may not include a deposit of money.
The promise to appear and the undertaking may be accompanied by a promise made by the accused to the police to comply with certain conditions while he is at liberty. The promise may contain one or more of the following conditions:
- to remain within the jurisdiction of the court;
- notify the agent of any change of address, employment or occupation;
- abstain from communicating, directly or indirectly, with the persons mentioned in the promise;
- refrain from going to certain places;
- surrender his passport;
- refrain from possessing firearms and surrender firearms licenses;
- report to the police at times
- refrain from consuming alcohol or other intoxicants;
- abstain from using drugs except on a medical prescription;
- observe any other conditions that the responsible official considers necessary to ensure the safety of the victims or witnesses.
Failure to comply with a promise is a criminal offense.
4.2.3 Detention for Bail Hearing
A large number of individuals charged with offenses involving allegations of family violence are not released by the police but remain detained for an interim release investigation. In some jurisdictions, there is an “unwritten policy” within police services whereby all accused of a domestic violence offense is detained for bail hearings. Policies of this kind are not compatible with the obligation to consider the possibility of placing an accused at liberty imposed on the police by ss. 498 and 499 of the Criminal Code. It is interesting to mention that in R. c. Rashid, 2009, the trial judge found that there had been a violation of s. 9 of the Charter because the arresting officer did not consider whether to release the accused from the police station and instead complied with a general policy requiring the accused to be arrested. be detained in cases of family violence, regardless of their personal circumstances or the nature of the offense.
As a general rule, an accused will spend one night at the police station, before being taken to court for his bail hearing. Sometimes the accused spends more time in custody if he is arrested during the weekend or if he needs time to find a lawyer and people who agree to stand surety. Before the court, the Crown may either agree to the release of the accused under certain conditions or oppose it, in which case an inquiry into the suretyship will take place before a justice of the peace.
According to art. 515 of the Criminal Code, the accused will be released pending trial unless the prosecutor raises “justifications” for his detention in custody. The Crown may raise three grounds in support of a detention application:
- the request is to ensure the presence of the accused in court (the “main” ground);
- it is intended to ensure the protection and safety of the public (the “secondary” ground);
- it aims to preserve confidence in the administration of justice (the “tertiary” motive).
In specific situations under the Criminal Code, the charge is reversed and the accused must demonstrate why he should not be detained, for example, when he is accused of failing to comply with a condition of an undertaking or promise while he was at liberty after being released for another offense that is still pending (section 515 (6)).
The dangers faced by victims of family violence when a separation occurs are well known. According to the director of the Center for Research on Violence Against Women and Children at the University of Western Ontario and a member of the Ontario Chief Coroner’s Family Violence Death Review Committee, psychologist Peter Jaffe, 80% of homicides in the family occur at the time of separation or soon after. Whether real or imminent, separation is one of the most common risk factors for family homicides. The abused spouse may be in danger even if a complaint has been lodged with the police and the offender has to comply with bail conditions. In fact, the risk of harm may increase if the police or the criminal courts intervene ( Ministry of Attorney General (BC), 2011, p.1).
[English] “Gillian Hadley and Arlene May’s Death Investigations and the Rhonda Lavoie Inquiry are just three of the many horrific examples of what can happen when we leave the cycle of violence behind.” without control. In all three cases of murder followed by suicide, there was a history of domestic violence that led to the tragic event and various conditions of inadequate bail or release that did not ensure adequate protection for the wife. In each of these cases, recommendations suggest that failures in the bail system have been a major factor in the failure of the criminal justice system to adequately reflect the dynamics of these relationships. “(Saull, 2008, p. 10-11)
These concerns have guided the policies and directions given to Crown Attorneys to act with caution when agreeing to the release of a person charged with an offense involving domestic violence. The murders of women like Arlene May and Gillian Hadley – both of whom were killed by a spouse from whom they were separated and who was on bail – show how essential it is for Crown counsel and the courts to understand. the risk of an accused before rendering a decision regarding his release prior to trial.
It must also be recognized, however, that in the often emotional context of family breakdown, allegations of violence by one spouse against the other may be exaggerated or even invented. Restrictive conditions of bail may not be necessary. In addition, as Pugsley J. described in Shaw v. Shaw, such conditions can have a detrimental effect on decisions that should be made with respect to related family law matters:
[English] Family courts rule on custody and access based on the law and jurisprudence that define the best interests of children, while the criminal justice system pays no attention to this interest because he is not prepared to do so and the participants are not well informed about the impact of the actions of the system – from the police officer who refuses to release the defendant to the police station to the duty counsel who leaves the defendant consent to inappropriate release conditions by opportunism – on the life of the defendant’s family members. Similarly, the Superior Court is responsible for ruling on the right of each party to remain in the matrimonial home until the dispute in matrimonial matters is decided. Orders prohibiting a party from having access to the residence shared with the other party until the end of the criminal proceedings that are rendered without taking into account the consequences of such a measure and without the party concerned has other remedies than the review of his release on bail are frequent. These orders grant one party superiority over the other until a decision is made on the criminal charges (which may take one year). This treatment, which is reserved for all domestic violence cases, may lead to fabricated or exaggerated allegations of criminal conduct, or to the early entry of a guilty plea by an innocent defendant. opportunism or because he and the complainant wish to undertake the rebuilding of the family unit.
It is in this context, where legitimate security concerns must be considered with unnecessary restrictions on the liberty of the accused and the disruption experienced by his family, that decisions on bail are taken. The following is an attempt to describe best practices to balance these opposing considerations.
4.3 Crown’s Approach to Bail Where Domestic Violence is Alleged
Public safety is, of course, an important issue in family violence cases. As a result of tragic deaths in many high-profile cases and a better understanding of the dynamics of family violence, many Crown offices have developed specific bail policies for family violence cases. The safety of the complainant and his family will be the predominant factor that the Crown will consider when exercising prosecutorial discretion.
In Ontario, the guidelines contained in the Crown Policy Manual guide Crown counsel in the exercise of their discretion. This manual, like those of other provinces, requires Crown Attorneys to consider detailed risk assessments made by the police at the time of the arrest. The Crown will consider the following factors:
- the nature of the offense;
- the presence of injuries and their severity;
- the antecedents of the defendant;
- the history of the relationship;
- any pending charges;
- any prior failure of the accused to a court order;
- the complainant’s concerns;
- the drug and alcohol abuse of the defendant;
- psychiatric disorders;
- the existence of evidence of criminal harassment;
- the strength of the prosecution case;
- the level of violence alleged by the complainant.
The Crown must have sufficient information about these factors to make an informed decision as to whether the detention of the accused should be sought. The court will need the same information to determine if the detention is necessary and to develop appropriate conditions in cases where the accused is released. Therefore, it is essential that Crown offices establish protocols in consultation with local police services to ensure that Crown Attorneys have sufficient information to conduct a bail hearing. In Ontario, this information exchange is done through a mandatory audit list and form for the risk assessment. The value of the risk assessment obviously depends on the reliability of the information on which it is based. Police officers must be trained to complete the form correctly.
4.3.1 Collection of Information for the Bail Hearing
As Hill J. explained in R. v. Villota, quoting the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, Crown Attorneys Exercise “immense control over information about the offense and are required to play a role leading in bail hearings to ensure the presence of justice in the bail system.
The difficulties faced by Crown Attorneys in a bail hearing are significant and the stakes are high. It is primarily up to them to ensure that the court has sufficient information to make a decision on release. In many jurisdictions, Crown offices have developed guidelines and policy directions to assist prosecutors in fulfilling this role in the context of the courts conducting these investigations.
Many stakeholders interviewed as part of the preparation of this report have indicated how useful it would be for the criminal court – in particular, the bail hearings tribunal – to have access to family court orders or to court orders. protection of children. In their view, it is not sufficient to rely on the accused and the complainant to provide accurate information about the existence and status of the civil proceedings. A Deputy Crown Attorney, Helen How, believes that the lack of access of the criminal court to civil and civil court documents to documents related to criminal proceedings is one of the greatest difficulties that exist. with respect to domestic violence prosecutions. Ms. How indicates that she can only become aware of an order made by the family court if the complainant shows it to her. Justice Bovard, who has contributed to the establishment of the Toronto Integrated Domestic Violence Court and has written extensively and lectured extensively on the relationship between criminal and family law, believes for its part, it would be useful for the criminal courts to have access to the FRANK case tracking system in Ontario, the system that manages information in civil cases.
The information management system in Ontario has recently been criticized by Justice Brown in Romspen Investment Corp. c. 6176666 Canada Ltd. In colorful language, Justice Brown attacked what he calls the archaic system of document management and the establishment of the role of the courts of Ontario:
[English] I suppose that a sunny and unusually hot day in mid-March should be relaxed and accept without complaint about the systemic failures and delays in the Court’s records management system. The problem is that, from the point of view of members of the public who use the Court, the delays caused by our archaic and totally inadequate records management system impose unnecessary but too real costs on them. Yet the entity that deals with this part of the Court’s administration system – the Court Services Division of the Ministry of the Attorney General – seems completely indifferent to these unnecessary costs.
Although noted in the context of a commercial dispute decision, the flaws in print management described by Justice Brown may also affect domestic violence cases. There is no doubt that a judicial system “in which documents were filed electronically and to which it was possible to access the Web, the sealed documents being encrypted in such a way that only judges would have access to it “would help judges make a more informed family, criminal and child protection decisions.
In some jurisdictions, criminal courts and family courts have developed protocols for the exchange of information. For example, Lanark County, Ontario has established a formal protocol for family violence cases involving the Family Court and the Criminal Court (Goldberg 2011: 57). Protocols of this kind help to ensure that the criminal court has accurate information on family law proceedings that are ongoing before issuing a bail order.
4.4 Current conditions of bail
The court granting bail to a defendant and deciding on the conditions to be imposed on him should be aware of the following:
- family court orders and proceedings pending before the Family Court;
- the accused’s access to children related to the complainant;
- the risk assessment performed by the police and the security checklist completed by the police;
- restrictions imposed by a child protection agency;
- the accused’s history or lack of history of violence.
In cases involving allegations of family violence, the most common release conditions include a prohibition on communicating with the complainant, a prohibition on approaching a specific distance from the complainant’s residence and place of work. , restrictions on access to the complainant’s children, the prohibition of the use of drugs or alcohol and the prohibition of possession of firearms.
The conditions for communication and access to children are the most difficult to write and often have the greatest impact on parallel family law proceedings. Justice Bovard explains the difficulties that may arise from restrictive conditions imposed in family violence cases:
[English] Family law cases are particularly complex and often the dynamics are constantly changing; things are changing rapidly and the family court must be able to respond to these changes in a meaningful way without being hindered by bail orders that bind their hands. Bail conditions may remain in place for a long time, making it almost impossible to resolve the issues that arise about child welfare, access, and alimony. People need to communicate with each other to resolve these issues. It is particularly important to address issues that affect the best interests of children in the most effective way. This is difficult to do, if not impossible when parents are not allowed to communicate with each other.
In this section of the report, we review current bail conditions, identify issues that may arise from the wording, and suggest best practices.
4.4.1 “Avoid direct or indirect contact with the complainant, except through a suitable third party or pursuant to an order of the Family Court and only for the purpose of arranging and facilitating the access to children »
Using this condition avoids a blanket ban on communications that Judge Bovard and others have discouraged. For this reason, it has significant advantages over a condition that prohibits spouses from contact (eg, “refraining from communicating directly or indirectly with the complainant”). Absolute prohibitions are likely to impede progress in parallel family and child protection proceedings and may be inconsistent with family court custody and custody orders. to access.
This wording nevertheless presents certain difficulties. First, a condition that requires the complainant to consent to the appointment of a “neutral” third party to facilitate contact and access to children may put pressure on the complainant to the point where the complainant feels compelled to do so. to give consent, aggravate any imbalance of existing powers and create another source of tension between the spouses. It may be preferable to require this third party to be suitable for a surety or a responsible officer (Bovard, 2012).
Second, arranging and facilitating access to children can create frustration even though bail conditions allow for communication through a third party. For example, the inability of an accused who exercises access rights to notify the complainant of an unforeseen delay or emergency may increase tensions between them or even require police intervention. As a result, a court may, in appropriate cases, consider whether a condition prohibiting communications could include an exception for “email or text message contacts that only address actions taken in relation to access to children “.
This type of exception to a restraining order may not be appropriate in cases involving serious allegations of family violence, where the complainant does not feel safe if he or she contacts the accused. In many less serious cases, however, such an exception may be useful.
Third, the condition set out above does not permit contact between the accused and the complainant through their lawyers or for any other purpose than facilitating access to the children. In fact, family law proceedings that are ongoing will be put on hold if the parties can not communicate by any means, even through their respective counsel.
4.4.2 “Contact with children should only take place under the supervision of the child protection agency or in accordance with a court order”
The formulation of appropriate release conditions for the accused’s access to his or her children presents a particular challenge for the criminal courts:
[English] Ending contact between parents and children can seriously – and often adversely – affect their relationship for the rest of their lives. Disclosure orders can also stop attempts to provide psychological counseling and other efforts to address the underlying issues facing the family and may preclude meaningful evaluation of whether regular contact is in the best interests of the child. In addition, it can be very difficult to change the release conditions once they have been imposed; bail orders with a communication ban may remain in effect for a year or more in some jurisdictions, despite all efforts by child protection agencies to have them amended. For these reasons, judges may favor the development of release conditions that allow child protection authorities and/or family courts to decide whether access should be granted and under what circumstances.
A number of factors must be taken into account when setting conditions for release, including the circumstances surrounding the offense and whether or not the child is the complainant or a witness to the alleged offense.
In cases where the child is the complainant or a witness, it may be necessary to completely prohibit communications until the trial. Strict conditions may be imposed in this regard if there are fears 1) that contacts between the accused and the complaining child may give rise (even unconsciously) to feelings of guilt or doubt that might prevent the child from saying truth in his testimony and 2) that the defendant attempts to influence the testimony of the child. The prosecutor may object to a condition that allows the family court to grant access to the child. What interests the family court is the interest of the child, but this court may not have enough information about the underlying criminal charge or emotional conflict that may be created by having to testify before him. Ms. How explains that she is cautious when she relies on family court orders to set the conditions because the proceedings in the family court and those in the criminal court have different goals. In his view, civil proceedings often focus on family reunification, while criminal proceedings focus on safety issues and the effectiveness of prosecution.