You suddenly find yourself lost in a harried courthouse, saddled with a criminal charge, and you might even be in police custody. You’re scared, you’re confused, and you’re probably not thinking clearly. What do you do?
Last year across the country, Canadian courts made guilty findings in 214,825 cases, according to Statistics Canada. In Ontario there were 75,545 criminal convictions, including 10,944 for impaired driving, 4,095 for drug possession, and 20,110 involving property crimes. Many of these people had never been in a courtroom before.
“Don’t panic,” advises Toronto criminal lawyer Daniel Brodsky. “Come up with a plan and know there are resources to help. It’s almost like a cliché, but it’s true: arguably bail is the most important step in the criminal justice process.”
Ontario courts are terribly overburdened, resulting in delays. Those who have been denied bail often sit in jail waiting for a period that could well exceed any sentence they may ultimately face. And that is a situation criminal lawyers suggest you try very hard to avoid.
Planning actually begins before any charges are laid. If the arrest follows an investigation you may get a call from police requesting that you come into the station. That’s when you should start to get ready, says Brodsky. It’s a good idea, he adds, to avoid afternoon visits to the police station, particularly if it’s a Friday afternoon. Bail courts typically operate in the morning. If you are charged later in the day, you might have to spend a very unpleasant evening in the police holding cells. That could extend to an entire weekend if it happens to be a Friday afternoon.
If you have the option, make an appointment with the police for first thing in the morning. If you get there at 7 a.m. and suddenly find yourself facing charges, there’s a chance you might be able to get a 10 a.m. bail hearing, suggests Brodsky.
Most of us don’t carry the number of a criminal lawyer in our back pockets and really don’t know what to do. That’s where duty counsel can help. These are lawyers assigned to each courthouse who are available to get you started in the process. They can give you an idea if you qualify for legal aid and might be able to help with your bail hearing. To find your own lawyer, contact the Law Society of Upper Canada for referrals.
“The general first timer would be brought to court after being arrested and taken to a police division,” says Theo Sarantis of Hicks Adams LLP. “And they don’t see a lot. So everything that’s happening is happening in your absence.”
If you’re in custody, you’re waiting your turn in the courthouse cells. And when your turn is about to come up, you’re taken to the prisoners’ dock, separated from everyone else in the courtroom. Stuff is going on around you and you’re essentially left clueless unless you’re lucky enough to have your lawyer lean into the dock and whisper in your ear. If you’re unlucky, time runs out, your name isn’t called, and you have to spend the night in custody in hopes that your name will be called the next day.
Brodsky tells his clients there are three areas of concern they should be prepared to address in order to get bail and family members can play an integral role in a bail hearing. The primary ground is to assure the justice of the peace or the judge that you will return to court and that you aren’t a flight risk. The secondary concern is there is no risk of reoffending. And the tertiary ground is that the first two concerns will be addressed and there is no hue and cry in the community if you are released.
A family member or friend could provide surety, that is assuring the judge you’ll meet all the conditions or restrictions the court sets out before releasing you on bail. It doesn’t require that person to put any money forward, but they are asked to prove they are good for it if you do skip bail by showing they own a house or have money in the bank. Even if you don’t abide by all the conditions and bail is revoked, the surety may not be on the hook if they show they executed their duty in a reasonable way.
But not everyone has someone they can count on to vouch for them. You can also be released on your own recognizance if you’re a low to medium risk. “The important part that everyone should be thinking about . . . is will the person come to court if they’re released on bail,” says Brodsky.
If you are facing charges that don’t require a bail hearing, the first piece of paper given to you by police will tell you when you are expected to go to court. But don’t expect to go to trial right away, that’s just the first of what could end up being many appearances in court.
Ontario Ministry of the Attorney General: Information for Accused