What does bail mean in Alberta?

by admin | Dec 11, 2020 | Best Criminal Lawyer, Blog, Criminal Defence Lawyer, Criminal Lawyers

When a person is charged with a crime and is awaiting trial in Canada, they can be temporarily released on bail or held in custody until their trial.  Many considerations are held in balance when bail is considered, such as the charged person’s interest in freedom; the protection of community, victims or witnesses; and the importance of maintaining public confidence in the system.  Bail is a complex subject and its procedures change depending on the crime someone has been charged with, and the stage of their case.

What is bail?

Bail refers to the temporary release of a person facing criminal charges before they appear for trial.  The technical term for bail in Canada is ‘judicial interim release‘.  If police are going to detain a person instead of releasing them after arrest, they must bring them before a judge or justice of the peace within 24 hours.

Police might have different reasons to bring someone to bail court, depending on the severity of the charges.  For example, these reasons may include:

•   The likelihood of them attending their court date
•   The protection of witnesses, victims and the community, or
•   The nature of the crime they are charged with.

The crown should not detain a person merely for the sake of completing their investigation, but if there is concern that the charged person may interfere with the investigation or destroy evidence, it may be reasonable grounds to deny bail.  The bail hearing is not a trial to determine whether or not a person has committed the crime for which they are being charged.  It is a hearing to determine whether or not it is reasonable for them to be released back into the community temporarily, and whether they should be bound by certain conditions for this release, including producing bail money.

Legally, the grounds for detention are:

•   To ensure a person will attend court as required (primary ground)
•   To ensure the safety of the public such as any victims or minors (secondary ground)
•   To maintain confidence in the administration of justice (tertiary ground)

Typically, when someone is detained, the onus is on the police and crown prosecutor to prove why a person should be held longer, or have more restrictions on their release.  The Canadian Charter of Rights and Freedoms guarantees that no person should be denied reasonable bail without just cause.

There are however, cases when the burden is on the charged person to prove why they should not be detained.  This is called ‘reverse onus’, and applies in a few situations, including the following:

•   If they were on release for another offense when they committed the subject offense
•   If they have a history of failing to attend court or complying with promises to appear
•   If the offense involved their use of a firearm
•   If the person normally does not reside in Canada
•   If the offense is purported to be related to weapons trafficking, terrorism or connection to a criminal organization

What happens at a bail hearing?

A person appears before a judge or justice of the peace. In Alberta, a first appearance bail hearing happens by video or teleconferencing.  Bail hearings happen from 8am-midnight, 365 days a year to ensure that anyone being detained has the right to a hearing within 24 hours.  If you are arrested, you have the right to speak to a lawyer before your bail hearing.

The Justice of the Peace decides one of three things:

•   to release the person
•   to detain the person
•   to adjourn case without bail until a later date

If a person is granted bail, they may or may not have conditions tied to their release.  Conditions are to be as unrestrictive as possible while securing public safety, ensuring attendance at court and respecting the administration of justice.  It is important for the accused to have proper representation in court to ensure that the restrictions can be as limited as possible in their favor.

What are the possible bail release outcomes?

There are a number of options available for the judge or justice of the peace to consider when releasing a person on bail:

•   Undertaking without conditions: like a promise to appear, you promise to come to court when required.
•   Undertaking with conditions: You promise to come to court, but you have some restrictions on your freedom.  For example, you might not be able to have contact with a specific person.
•   Recognizance: You agree to a) follow conditions set by the court b) pledge/promise a set amount of money to the court to be a security for your release c) sign your own bail.  By signing for your own bail, you recognize that you will pay that set amount of money to the court if you do not follow your bail conditions.
•   Surety recognizance: Someone must come to court and agree to supervise you and provide a specific amount of money as security to the court.  If you do not follow your bail conditions, your surety will have to pay the money to the court.

Failures to comply with an undertaking, or a breach of recognizance are also chargeable offences, so any breach of bail conditions may lead to more charges down the line.

If you have been charged with a crime, feel free to contact us to guide you through this complex and difficult process.

What happens when you are arrested for a criminal offense

by admin | Dec 24, 2019 | Best Criminal Lawyer, Blog, Criminal Defence Lawyer, Criminal Lawyers

Avoiding criminal activity is a priority for most people; however, whether or not someone has actually committed an offence, there is the possibility that they could face criminal charges. As such, people may not know exactly what process they will go through in being arrested and potentially charged for the crime. The following steps give a general guide to what happens when you are arrested for a criminal offense. There is also a quality handbook offered by Alberta Crown Prosecution Service. Without a doubt, hiring a criminal defence lawyer will be the best course of action in your case. Of course, every case is unique and will depend on its own facts.

Arrest and Bail Hearing

An arrest occurs when one of three circumstances is present: a police officer observes a crime in action, a police officer has reasonable and probable grounds to believe that someone has or is about to commit a crime, or a warrant has been issued by a judge or a magistrate which identifies the charge for someone to be taken into custody. In some circumstances, people who are going to be charged with an offence are asked to turn themselves into a police station.

The person who has been arrested or turned themselves in will have to complete certain procedural requirements such as attending for fingerprinting and photographing at the police department at a later date. They can sometimes be held in police custody until a hearing is held or while charges are decided; however, in certain circumstances, they may be released on bail (following a bail hearing or “judicial interim release”). A person has the right to contact legal counsel on arrest or detention and it is suggested that they do so immediately.

To be released on bail, it has to be shown that you are not a threat to public safety and that you will show up to your court appearances. In some circumstances, especially to maintain public confidence in the judicial system, people will continue to be held until their first appearance in court.  If you are permitted to be released, the judge or justice of the peace may impose restrictions on you, including being supervised and/or paying a fine to the court for release. If you are let out on bail, you will be provided with a document (an appearance notice, promise to appear, summons, or recognizance) that will give you the information you need about appearing in court.

First Appearance, Election and Pleas

First Appearance

Once you have been charged for an offence, you will need to appear in court. If you have not already hired a lawyer, you will want to do that before your first appearance, so they have ample time to familiarize themselves with your case. Your lawyer can contact the prosecutor’s office to obtain the investigation file detailing the charges against you and what evidence is available before going to trial.

Your first appearance will always take place in a provincial court in front of a provincial court judge. You should arrive at the courtroom at least 15 minutes prior to your scheduled time, as specified on your document. If you have not been let out on bail, you will be brought to the court at the appropriate time by law enforcement. When the clerk calls your name, you will be expected to stand in front of the judge. Sometimes, at this point, the charges against you to

Election

You will then have to make an “election” – this means if your offence is indictable, you can have your trial either:

• Before a Provincial Court judge, or
• Before a Queen’s Court Bench Justice

Pleas

If you are not charged with an offence where you are expected to make an election, you do not have to plead guilty or not guilty at your first appearance – that is something best decided on the advice of your legal counsel who can assess the strength of the case against you. There may be room to bargain or a chance that you can avoid prosecution if the evidence is not very strong. Either way, an experienced and dedicated criminal defence lawyer will be able to guide you to get you the best possible outcomes for you under the circumstances. If you have not yet retained a lawyer, you may ask the judge to reserve your plea until you speak to one and then will be assigned another court date. If you plead not guilty, a trial will be scheduled.

Note: if you choose to plead guilty, the Crown prosecutor will read in the agreed-upon facts supporting the plea of guilty into the record. Always discuss with your lawyer, what facts will be read in when you plead guilty because, in order to plead guilty, you must agree that you committed all the necessary elements of the offence. You should not agree to have committed all essential elements of the offence without first having consulted a lawyer who can advise you about any potential defences that you may have.  If you do not agree with the facts alleged against you, you have the right to a trial in which you may contest any facts alleged by the Crown and to advance any defences that may be available to you in law.

If you decide to plead guilty, the judge hearing your plea will hear submissions regarding the appropriate sentence.  Sometimes the Crown and the defence agree on an appropriate sentence. Where they disagree they both explain their position to the judge, who makes the ultimate decision.  Sometimes the matter is adjourned so that more information can be gathered that is relevant to sentencing such as a pre-sentence report, which details your personal circumstances and your amenability to supervision in the community.  In some cases, more specialized reports are used that examines the mental health of the accused in order that the sentencing judge might fully appreciate his or her personal circumstances.

What is Alberta Crown Prosecution?

The Crown holds a lot of decision-making power. They are responsible for prosecuting all offences under the Criminal Code of Canada and other related acts or statues in the province of Alberta. They could also prosecute under a provincial statute if it is likely that a person will be convicted and it is in public interest. They are also responsible for first appearances in court for bail hearings, handling appeals, and developing law policy in the province as well.
It is the Crown that will decide the appropriate charges for an offence and who will present arguments for conviction and sentencing during trials, as well as prepare witnesses for court and examine or cross-examine witnesses.
The actions and decisions of the Crown Prosecution are governed by several important pieces of legislation, including:

• The Criminal Code of Canada
• Youth Criminal Justice Act
• The Canadian Charter of Rights and Freedoms
• Justice policies issued by the Government of Alberta
• The Code of Conduct from the Alberta Law Society

Going to Trial

You or your counsel will receive notice for when your trial is set, including the time and location of the trial. If you have been released on bail, you should arrive at least 15 minutes prior to the trial time with your criminal defence lawyer who will inform the Crown prosecutor of your arrival. Prior to the trial, your lawyer can request full “disclosure” from the prosecutor’s office in order to prepare your defence. This refers to any documents, data, evidence, reports or witness statements the Crown will have accumulated pertaining to your case. You can request disclosure and represent yourself, but a criminal defence lawyer will have much more experience and knowledge to assist you during this time.

Don’t forget: you are innocent until proven guilty beyond reasonable doubt. And it is the Crown which is responsible for proving your guilt. They will present evidence during the trial and examine witnesses they bring, or they will cross-examine witnesses your defence brings to trial. While the details of actual court proceedings are too numerous to put here, essentially both the Crown prosecutor and your defence lawyer present evidence and witnesses. Then the judge will ask for final arguments by your legal counsel and the Crown for your guilt or your innocence. The judge or jury will then decide whether or not you are guilty. If you are found guilty, you will be sentenced for the crime – something which often takes place on another date. Your counsel will also have the opportunity to present evidence and arguments regarding what type of sentence you should receive before sentencing takes place. If you are found not guilty, you are free to go.

Hiring a Criminal Defence Lawyer

Hiring an experienced criminal defence lawyer from Kolinsky Law as early as possible after your arrest will help ensure you and your rights are supported every step of the process from “booking” to trial. We aim to get you the best possible results given the particular details of your case. This could mean actually getting you justice without even setting foot in court, or it could mean having the tenacity to present a convincing enough case to maintain your freedom, argue for alternative sentencing, negotiate pre-trial settlements where possible or provide access to their vast network of experienced and experts to do everything to help your case. Leaving your freedom and future up to chance is not a risk you should take – Kolinsky Law is ready to represent you and build the best defence for you today.