When a person gets charged with a crime in Ontario, one of these things will happen:
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The officer may let you go with an order to appear in court. They may require you sign an "undertaking", which is an agreement to follow certain rules
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The officer may hold you at the police station for a bail hearing.
Sometimes the police want you to agree to release conditions that are extreme, unfair, or rules that you just can’t follow. You can refuse to agree to these conditions and argue against them in court. When that happens, the police will hold you for a bail hearing.
A bail hearing is an appearance before a court to decide whether to release you, or remand you to custody until the charges are resolved.
You have the right to appear before a court within 24 hours of your arrest wherever it is possible to do so. If there was a large number of arrests, or you are arrested on a weekend where court only runs Monday to Friday, this may not be possible. Appearing in court does not guarantee that the court will have time to run your bail hearing the same day. You might get temporarily sent back to a detention centre to await your bail hearing.
You will have a chance to speak with a lawyer (your own private lawyer, or a free duty counsel lawyer) before your bail hearing. It can be beneficial to let your lawyer know whether you are Indigenous, Metis, or Inuit. Sometimes they can make special arguments or access additional programs to have you released from jail.
Many bail hearings in Ontario are now being done as video court, unless requested otherwise by you and your lawyer. Video court means you don’t leave the police station– instead of being taken to court you’re taken to a room set up for a zoom call with the court.
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Racism & ableism in the bail process
Those who are disabled and racialized are less likely to be given a warning or released from the police station, which makes them more likely to appear in bail court.
In bail court, those who are racialized and disabled are less likely to successfully make bail than those who are white or not disabled. When they do make bail, they are more likely to be subject to harsher bail conditions, some of which may set the individual up for a breach of conditions.
A breach of bail will result in additional charges and a section 524 Reverse Onus Bail Hearing, where the crown withdraws your previous bail and you must now prove to the court why you should be released, versus the first time when the court had to prove why you should be kept. Section 524 Bail Hearings can be hard to win for anyone - but moreso if you are racialized or disabled.
This makes it especially important to try your best to avoid being caught breaching bail when you are racialized or disabled.
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Ways that racism & ableism can manifest during the bail process include things such as:
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Being remanded to custody while you await a bed in a psychiatric institution
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A Justice of the Peace (JP) not allowing you to be released to a responsible guardian based on something arbitrary, such as it was a grandparent who showed up to bail you instead of a parent
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A JP or lawyer saying something that is overtly or covertly ableist or racist during a hearing
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A higher chance of being remanded to prison, based on conscious or unconscious dehumanization of those who are racialized or disabled
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A JP, judge, or court staff making assumptions about your disabillity and how it impacts you without asking first
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Bail conditions that restrict the use of alcohol or drugs, even when your charges have nothing to do with alcohol or drugs - in particular if you are Indigenous
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At the bail hearing, the Crown (which represent the government) will read out the allegations and some of the information surrounding the charges. Sometimes the crown may call a witness to the stand - usually an investigating officer.
The information presented by the crown only represents the police’s version of what happened. It may not be accurate or true, but it does not matter at this point. A bail hearing is not an opportunity to argue against your charges – it is only a hearing to see if you will be kept in jail or not while you defend yourself against the charges.
In most cases, the crown must successfully argue why you should not be released on bail. There are limited reasons that the court can order you to remain in jail. They include:
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Primary Grounds – to secure your presence at future court dates
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Secondary Grounds – to maintain the safety of others or prevent another offense
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Tertiary Grounds – to maintain the integrity of the court
Sometimes YOU must successfully argue why you should be let out of jail. This is called a “reverse onus” bail hearing. It usually happens with serious charges, or if your charges involve having breached other bail conditions.
If the court doesn’t have time to hear your bail hearing right away, they can send you back to detention until they have time. This is called an “adjournment”. The court cannot adjourn you longer than 3 days without your consent.
Sureties & bail plans
Your lawyer may have to propose a bail plan to the court. This includes rules that you would follow while on bail (for example a curfew, or not attending a location or communicating with a person). It may also include having a "responsible person" agree to supervise you. A responsible person does not need to promise funds like a surety does, but they will need to sign a document stating they will supervise and report you if needed.
A surety is one step beyond that: a responsible person – a family member, partner, or close friend - who promises the court that they will supervise you outside of jail and contact the police if they believe you’re breaking the rules. Sometimes you must live with your surety, but not always. A surety will also promise an amount of money to the court that they may need to pay if you break the rules. In most cases, the money is not needed up front – it's just a promise to pay and there are very explicit circumstances in which the court can collect the funds.
Bail hearings can be “on consent” or “contested”.
A bail hearing on consent means that the crown has agreed to let you be released from jail if you are willing to follow the rules that you all agree on. In court this means the crown and your lawyer/duty counsel don't argue about your release. Instead they propose the agreed terms to the court. It's uncommon for a judge or justice of the peace (JP) to refuse a joint position between your lawyer and the crown.
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A contested bail hearing is where the crown and your lawyer argue before a judge or justice of the peace about your release, because they could not come to an agreement. Contested hearings often take place if you have breached your conditions, if you are refusing to follow one of the bail conditions being requested by the crown, or can be recommended by police. The judge or JP will make the final decision after arguments.
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Contested hearings take up more court time and often include the use of sureties. If you are having a contested bail hearing you are more likely to be held in a local detention centre for a period of time until the court and lawyer can find common time. This can be a few days to a few weeks, depending on the situation.
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Help with bail
People who don’t have the financial or social support needed to meet bail requirements may be able to access a bail supervision and verification program. For example, if you don’t have someone to be your surety, a caseworker may be able to supervise you while on bail.
Bail programs are not available everywhere in the province. They will also differ in the level of support they are willing to provide based on your area. In most cases, you will be required to check in once a week with your caseworker to show that you’re meeting your bail conditions. Other requirements will depend on your case.
If you’d like to access a bail supervision program, let your lawyer or duty counsel know. They will contact the program, and a caseworker will interview you to determine eligibility.
Bail programs are usually only accessible to people who are not charged with violent crimes, and who do not have anyone they can ask to be their surety.
If you have used a bail program in the past and did not follow the rules or check-in as necessary, they may not agree to supervise you.
The bail program will report you to the police if they find out you’re not following the conditions.
Bail programs are often contracted through regional branches of organizations like the John Howard Society, the Elizabeth Fry Society, and St. Leonard’s Community Services. Indigenous folks may also be able to access caseworkers through their local Friendship Centre.
In Hamilton, Ontario bail supervision programs are facilitated through John Howard Society of Hamilton & Burlington and, for Indigenous folks, the Hamilton Regional Indian Centre (HRIC)
JOHN HOWARD SOCIETY OF HAMILTON & BURLINGTON
654 Barton St E,
Hamilton, ON L8L 3A2
905-522-4446
HAMILTON REGIONAL INDIAN CENTRE
34 Ottawa St N,
Hamilton, ON L8H 3Y7
905-548-9593
A justice of the peace will consider your charges, your record, and your proposed bail plan. They may interview your surety if you have one. The justice of the peace will then decide whether to release you on bail or deny you bail (remand).
A justice of the peace (JP) is a person who can make decisions on behalf of the court, but they are not a judge. A JP is usually just a community member, and they can be subject to their own racist or ableist beliefs.
If you are denied bail you will be brought to a local detention facility.
You may apply for a "bail review" if you or your lawyer believe there was an error of law or there has been a significant change in circumstances. For example; if someone has now agreed to be a surety.
RELEASED BACK IN TO COMMUNITY
If you are released on bail, there will be conditions to follow. If you are caught breaking these conditions, you can be put back in jail. It is harder to be let out of jail if you have broken the rules of your bail before – even if it was years ago.
There will be many court dates in the future that you must attend. If you miss any of the dates you may be arrested again.
REMAND
If you are not released after a bail hearing you will be remanded to custody (jail) as you work your way through the court process.
Being remanded can be very hard emotionally. It can cut you off from your friends and family. Jail can be a hard place to exist safely. Being racialized or disabled can put you more at risk of abuse from corrections staff.
You will be able to hold a new bail hearing in 3 months - but only if something has substantially changed. For example, you find a surety or release program, where you didn't have one before. You can also appeal your bail decision to a higher court if there was an error of law.
BAIL CONDITIONS
Think about the release conditions you’d be okay with. You are allowed to refuse to sign the bail conditions that the court proposes – but this means you will be taken to pre-trial detention.
Jail isn’t a place most people want to be, but there can be worse things – remember that only you are in the position to weigh the pros and cons. A lawyer will always argue that you should get out of jail if given the opportunity.
If getting out of jail means you must live with parents who don’t respect your gender, a surety that intends to isolate you from your support network, or rules that you know you cannot follow and will likely be caught breaching, it might be worth it to consider staying in pre-trial detention. This is especially so if you intend to plead guilty and can work out some basic jail math to minimize your actual time inside.
Deadtime & statutory release
Every day you spend in pre-trail detention (before you plead or are found guilty) is worth up to 1.5 days, though additional credit is not guaranteed. For example, if the crown is asking for 30 days in jail, you might only have to serve 20 days in pre-trial detention to be let out with “time served”. In some cases where the conditions of imprisonment are particularly adverse, additional credit may be granted.
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Additionally, statutory release means someone is released from prison after serving 2/3rds of their sentence. In the example above, this means if you plead guilty to a charge asking for 30 days in prison having spent 10 days in pre-trial detention, you would likely be released from the sentencing court or shortly after.
There are downsides to using the system this way – such as time-and-a-half not being guaranteed, or building a more extensive criminal record than you could otherwise have escaped one. Additionally, once you have a jail sentence on your record, the crown will keep asking for more time if you are ever charged again.
When to prepare a strong bail plan
Running a strong bail hearing can be essential if you are:
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facing serious charges
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if you are Black, Indigenous or otherwise racialized
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if you are disabled, neurodivergent
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If you are known by the court to use substances.
Courts remand these populations to prison the most often, and being remanded to pre-trail custody will have a huge impact on the outcome of your charges.
Because the conditions of jails are so poor, it’s common for those remanded to custody to plea out whether they are guilty or not, just so they can be released. If a charge does make it to a jury trial, it’s often easier for a jury to see someone as guilty if they have spent time in jail already.
Additionally, the environment of jail regularly exposes individuals to additional violence and trauma that can result in additional charges being filed against someone.
If you are Black, Indigenous, disabled, neurodivergent, or use substances it can be especially important to hire a private lawyer to run your bail hearing for the best chance of pre-trial release, and overall reduction of harm.
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While preparing to run a strong bail hearing may mean you spend a few days in a detention centre, if successful it means you won't need to spend several months or more in pre-trial detention.
Click to play the below video about bail in Ontario, Canada.
Video by CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)
Click to play the below video about what happens if someone doesn't follow their bail conditions.