The Factors That Are Taken Into Account In The Granting Of Bail

Bail is available for everyone charged with an offence, not but everyone receives it.

A number of factors are looked at. The first point the court considers is whether this person has roots in the community and whether or not he will attend court as required. If he is strongly connected to the community, for instance grew up here or has a good job and family here, then it’s unlikely he will board a plane and leave town. The court will look at whether someone, who has previously been charged or sentenced, attended court appearances in the past. The court will also look at whether the accused has a guarantor or surety to guarantee that the accused will attend court.

It is important to get advice from a lawyer when appearing at a bail hearing. The lawyer will obtain the name and phone numbers of family members in order to see how to potentially arrange for bail. For instance, if someone calls me at 3 o’ clock in the morning saying they have just been arrested, I first of all assess what the charges are in order to get an idea of whether or not this person will be released easily or not. If it looks as if there will be bail, I ask for contact information for family members and we arrange to have them present to sign as guarantor, or to assist with producing the actual cash for bail if necessary.

The second point the court looks at is whether or not the accused is likely to re-offend. The easiest way to prevent a person from re-offending is to keep him in custody. The court will consider whether the public needs to be protected. Sometimes the person will be released with conditions, such as staying away from certain people or locations, or in the case of fraud, for instance, not dealing with credit cards. There may be conditions imposed to ensure that the accused gets treatment or counselling to deal with whatever problems may have contributed to the allegations against him.

The third point the court looks at before granting bail is the type of offence. You may have an individual with no criminal record, who has attended the court as required and is seen to be a very good person. But there may be a very harsh set of factors involved in the allegations against them that makes one say, well, we do not care what kind of good guy he is, we do not care how much he will come to court, we just do not think it is right to release someone who is charged with these types of offences. That is known as tertiary grounds for detention.

If the judge is satisfied that neither of the first two grounds are required to detain an individual, then a person should be granted bail within 24 hours. But when it comes to more serious charges, such as murder, treason or terrorism, you must apply to the court for bail, which is a very different process. In the case of tertiary grounds for detention, you do not get bail automatically.

The granting of bail is a balancing act. The judge looks at the plan of release, the potential guarantors, the strength of the crown’s case, and how likely it is that the accused will be found guilty. They will get the person’s previous history. They look at whether there is family support. We always hear about “balancing the scales of justice”, and wonder where the scales tip. In terms of bail, that question is whether an individual should be released or detained.

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If you, or someone you care about, is dealing with criminal law issues in the Ottawa, Ontario Region, contact Engel and Associates for a consultation.

This article is taken from a June 20, 2008 interview with Bruce Engel, Criminal Lawyer with Engel and Associates, an Ottawa, Ontario Criminal Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.