Taking Your Bail Hearing Seriously

A person charged with an offence has the right not to be denied reasonable bail under s. 11 (e) of the Canadian Charter of Rights and Freedoms. Accused persons must however note that their request for bail may be denied if their detention is justified on one or more of three grounds: 1) the detention is necessary to ensure the accused person’s attendance in court. 2) The detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, and to prevent further commission of an offence by the accused. 3) The detention is necessary to maintain confidence in the administration of justice. 

Seeing that a bail application may be denied on reasonable grounds, accused persons must ensure that, should they choose to represent themselves, they know what they are doing. When this is not the case, the safest course is to retain a lawyer not least because the outcome of a bail hearing can “have serious practical effects on the accused’s ability to raise a defence, and can thereby have a second, more indirect, prejudicial effect on the accused’s liberty rights and the criminal justice system as a whole.” (Supreme Court of Canada: R v Hall, 2002 SCC 64).

According to H. L. Packer, in, The Limits of the Criminal Sanction (1968), (at pp. 214-15):

An accused person who is confined pending trial is greatly impeded in the preparation of his defense.  He needs to be able to confer on a free and unrestricted basis with his attorney, something that is notoriously hard to do in custody.  He may be the most likely person to interview and track down witnesses in his own behalf — something he cannot do if he’s in jail.  His earning capacity is cut off; he may lose his job; his family may suffer extreme economic hardship.  And all these things may happen before he is found to be guilty.  Furthermore, the economic and other deprivations sustained as a result of pre-trial confinement all act as coercive measures that inhibit the accused person’s will to resist.  He is rendered more likely to plead guilty, and, as a result, to waive the various safeguards against unjust conviction that the system provides.  When this happens on a large scale, the adversary system as a whole suffers because its vitality depends on effective challenge.

In sum, whether the accused person has retained a lawyer or is representing himself, he or she, in conjunction with family members, must ensure the availability of suitable sureties in appropriate cases and the availability of witnesses to support their case with regards to the grounds that may justify the detention of the accused.