Frequently Asked Questions
What do they want for bail?
There is a misconception, based on American television, that when a person is arrested, bail is “set” at an amount of money that must be paid in order to be released. In Canada, it’s rarely as simple as depositing money with the court. Sometimes it is the police who decide if you can be released from the police station on a “promise to appear”. Other times your release conditions could be determined by a prosecutor, a justice of the peace, or a judge.
The police have the discretion to charge a person with a criminal offence without arresting them or bringing them to the police station. Police can issue a summons or appearance notice that only requires you to attend court. If you are arrested and brought to the police station, the officer in charge may have the option of releasing you on an undertaking with conditions. In addition to requiring you to attend court, this undertaking might include other conditions such as prohibiting communication with certain people, or attending certain places. If the police do not release a person after arrest, they must take them to court to appear before a justice within 24 hours of arrest. Once a person is brought to court, the prosecutor then decides whether they will agree to their release on consent.
The Criminal Code lists three factors that must be considered when determining if someone can be released and on which form of release: (1) the risk of fleeing or not coming to court; (2) risk to public safety; and (3) whether detention is necessary to maintain confidence in the administration of justice, taking into account the seriousness and circumstances of the offence(s), the strength of the prosecution’s case, and the potential penalty upon conviction. The person’s criminal record and whether they are already on bail will also be considered. If after considering these factors and the bail plan being proposed the prosecutor does not agree to the accused person’s release, then a bail hearing will be required. A bail hearing is almost always required to be scheduled for a day after someone is arrested.
Whether on consent or after a contested bail hearing, a release order can be either with or without a pledge of money and with or without a surety. The pledge of money is not usually paid to the court, but the accused and surety could be liable to pay the amount pledged if the accused breaches their bail conditions and if the prosecutor starts the process of requiring payment of the money pledged. This is known as “estreatment”.
The prosecutor generally has the burden of showing cause for detention, meaning it needs to prove why the accused should not be released. However, for some charges and in some circumstances, such as where the accused is charged with breaching bail, the burden is on the accused to show why they should be released.
In Canada, a bail hearing is similar to a trial in a number of ways. The prosecution calls evidence, usually in the form of reading a summary of the allegations and filing your criminal record with the court. The defence then presents a plan of release to the court. The bail stage of the proceedings can have a profound impact on a case, so it is important to have a persuasive advocate who knows how to present a great plan for release that satisfies the three grounds for detention.
What is a surety? What does this involve?
A “surety” is a person who takes on the responsibility of supervising an accused person while they are on bail. A surety must ensure a person attends court when required, follows the conditions of the bail order, and does not commit any new offences. Sureties are generally viewed as “jailors in the community” who report any breaches of bail to the police. A surety does not ordinarily need to deposit money with the court, but must pledge a sum of money and is liable to pay the amount pledged if the accused breaches their bail conditions and if the Crown begins the process of requiring payment of the money pledged. This is known as “estreatment”. A surety has to take on the obligation freely and voluntarily with no threats or promises, and can remove themselves as surety at any time by applying to a justice.
There is a legal requirement that a surety be at least 18 years of age. Ideally, a surety has an established personal relationship with the person they are supervising, such as a family member or friend. When a person would like to be a surety, they must complete a surety declaration form and a background check. It is preferable that a surety does not have a criminal record, but no one is disqualified from being a surety simply because they do have a criminal record.
My husband/wife wants the charges against me dropped. Why aren’t they being dropped?
There is a common misconception that the complainant lays the charges and can decide to “drop” them if they do not want the prosecution to proceed. In reality, it is the police who lay charges based on information they obtain from witnesses, photos, videos, or other evidence. Once the police decide to lay a charge, it is the prosecutor who decides how it will proceed. Although the prosecutor often takes into account whether the complainant is supportive of the prosecution, they consider many other factors, including the following:
- Whether the complainant provided a sworn statement to police;
- Whether there is a fundamental change in the original statement or a recant of the allegations;
- Whether there is other evidence to support the charge, such as independent witnesses, photos, and recordings; and
- Whether the accused provided an incriminating statement to police.
While it is possible that the prosecutor will withdraw the charge in some cases, it is rarely as simple as a complainant just saying this is what they want. Even when the complainant wants to come forward and correct their initial statement, police and victim/witness support programs may not be interested in receiving and considering this new information. In many cases we still need to have a trial to clear your name.
Will drinking and driving/impaired by drug driving charges result in a criminal record? What if I just get a fine?
Yes, impaired driving by alcohol, drugs, or both is a criminal offence and will result in a criminal record if you are found guilty. Driving with a blood alcohol concentration (BAC) at or above the legal limit of 80 mg of alcohol per 100ml of blood will also result in a criminal record, even if your ability to drive was not affected. Both offences carry a mandatory minimum fine of at least $1000 for a first offence. Fines can be increased where there are aggravating factors such as high BAC readings, damage to property, or injuries or death as a result of the driving. Convictions for second and subsequent impaired driving offences will result in a mandatory jail sentence.
Many people incorrectly believe that the fine does not result in a criminal record, so they plead guilty to impaired driving offences without fully understanding the consequences. In addition to increased insurance costs, a conviction for impaired driving can have a negative impact on finding or maintaining employment and can create barriers to travel.
Is failing to provide a breath or blood sample/perform tests a criminal offence?
Yes, failing or refusing to complete a roadside breath test or physical coordination test, or provide a breath sample, blood sample, or urine sample are criminal offences. In law, failing or refusing to comply with a demand for one of these tests or samples is treated just as seriously as impaired driving, and the minimum penalty is the same as if you had failed the test. People found guilty of these offences are treated as if they had not provided the sample to avoid being caught committing the underlying offence.
What is “the Charter”? What does it mean for me?
The Charter of Rights and Freedoms (known as “the Charter”) is part of Canada’s Constitution and guarantees certain legal rights and fundamental freedoms. Generally speaking, sections 7 to 12 and 24 of the Charter are the most important for someone who interacts with police or the criminal justice system. These sections protect a person’s rights upon detention and arrest and throughout criminal proceedings.
The Charter is the supreme law of Canada, and all laws must be consistent with Charter values. When the government enacts a law that does not comply with the Charter, it can be “struck down” by a superior court judge making the law invalid. It is also possible to “read in/down” the portions of the legislation that are unconstitutional.
The Charter imposes obligations on State actors, including police, to act in a way that is consistent with its values. Police often violate constitutional rights in a number of ways. Arbitrary detentions, unlawful and unreasonable searches, and not immediately advising of the right to call a lawyer when detained (and then giving you an opportunity to speak to that lawyer in private!) are all examples of police failing to comply with their constitutional obligations. When this happens, it is important for your defence lawyer to bring an application for a Charter remedy.
Can I travel with a criminal record?
A criminal record can certainly impact your ability to travel. Whether you will be permitted entry into another country with a criminal record will often depend on the specific border services officer at the port of entry.
Most people we help are concerned about travel to the United States. Although it will depend on the individual U.S. Customs and Border Protection officer you encounter, the Department of Homeland Security website has provided guidance about admission into the United States with a criminal record:
The United States (U.S.) does not deny entry to persons that have a “Driving Under the Influence” (DUI) conviction. Although, if there are multiple convictions for this and/or other misdemeanors, you could be denied entry.
Generally, any convictions for drug possession can result in a denial of entry. If the conviction was long ago, you may have to contact the U.S. Embassy, Office of Consular Affairs in your country to obtain a waiver. Other misdemeanors may result in denial if they were recent.
A crime involving moral turpitude (CIMT) may be grounds to deny entry to the U.S. For more information, please visit the U.S. Citizens and Inmmigration Services (USCIS) website on General Categories of Crimes Involving Moral Turpitude (CIMTs).
For advice about whether your criminal charges will affect your ability to travel, you should speak to an immigration lawyer and consult the relevant laws for the country you seek to enter.
Can't I just use duty counsel for my case?
Duty counsel is a service provided by Legal Aid Ontario for people who qualify. Duty counsel lawyers are available to assist you the day you are in court only and provide limited services. If you meet the financial criteria, duty counsel can adjourn your court date, conduct your bail hearing, or help you plead guilty. It is not part of duty counsel’s mandate to review your disclosure in depth or conduct trials or preliminary hearings. Retaining your own lawyer who can represent you throughout the proceedings is the best way to ensure you have all the information you need to make an informed decision about your case and to ensure your rights are protected.
How long will my case take to be completed?
Like many aspects of Canadian law, there is no simple answer.
Many people believe there is a right to a “speedy trial” in Canada. Unfortunately, this is not accurate. Section 11(b) of the Charter guarantees you the right to a trial in a reasonable time. The Supreme Court of Canada has determined that matters dealt with in the Ontario Court of Justice should be completed within 18 months and matters in the Superior Court of Justice should be completed within 30 months. These time limits are called “presumptive ceilings”. If a case takes longer than the 18-month or 30-month ceiling, it is presumed to be unreasonable and the prosecution must establish that the delay was justified. Delays caused by the defence, exceptional circumstances, or particularly complex cases will be deducted from the total delay. Recent cases have extended the timeline by allowing for additional time for judges to consider and write their decisions, and complete sentencing after a finding of guilt.
When a case goes beyond the 18-month or 30-month timeline, the charges are not automatically “dropped” or “thrown out”. The defence needs to bring an application for a stay of proceedings, including a transcript of all court appearances and detailed written legal argument.
Very few cases reach the 18-month or 30-month ceiling. Some cases can be resolved very quickly, but others can require one year or more. The nature of the charges, volume of evidence, and availability of court time can impact the length of the case. We are mindful that our clients generally want their matter dealt with quickly so you know the outcome of your case and can move on with your life.
Can't I just plead guilty to get this over with?
Sometimes people charged with criminal offences think they should plead guilty in order to relieve the stress caused by the uncertainty of the situation. This is not advisable; the consequences of a criminal conviction can be severe and last a lifetime.
A guilty plea must be voluntary and fully informed. It is important to have all the available information when deciding how to proceed with your case. You should know what evidence the prosecutor has and whether it is of sufficient quality to prove the case. Even when the prosecutor’s case initially appears strong, a thorough review and challenge to the evidence by an experienced lawyer can reveal weaknesses in the case, identify a defence, or raise a reasonable doubt. Sometimes a trial is the only way to expose these issues and clear your name. Trials take longer, but can be well worth the wait.
If I am found guilty after a trial or plea, will I automatically get a criminal record?
A finding of guilt does not always result in a criminal record.
There are several types of penalties available for adults:
- Absolute discharge;
- Conditional discharge;
- Suspended sentence;
- Conditional sentence (house arrest); and
When an absolute discharge is imposed, the penalty is complete on the date of sentencing. A conditional discharge is accompanied by a period of probation where you will be bound by conditions and may have to report regularly to a probation officer.
An absolute or conditional discharge does not result in a conviction or a criminal record. According to the Criminal Records Act (CRA), the existence of an absolute discharge cannot be disclosed to any person one year after it is imposed, and a conditional discharge three years after the period of probation is complete. The discharge is also expunged from CPIC, the criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police, on the expiration of the relevant period.
However, you should be careful because a discharge may not always be the best option and could have collateral consequences. Despite the CRA provisions about expungement, the local police service that made the arrest may not follow the same procedure and may retain the record. The fact of a discharge could also be disclosed in a vulnerable sector background check or at border crossings. In addition, failing to comply with any of the conditions of probation associated with a conditional discharge could lead to further criminal charges.
About Snow Lawyers Professional Corporation
We are trial lawyers. We work late nights and we bring complicated applications to challenge prosecutions.
When we are in trial, it consumes us—we are single-minded in our pursuit of success and protecting you against the immense power of the government.
We protect your privacy, your family, your freedom, and your livelihood. We protect you from prosecutions that can be driven by political objectives, not the pursuit of justice.
We protect you from dishonest police and civilian witnesses, and illegal police conduct.
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