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Bail Hearings

While there are Criminal Code provisions that permit a suspect to avoid being arrested or held in police custody, in serious cases, police will forward their report to Crown and include a request to apply to the court for the accused to be detained in custody pending their trial. In British Columbia, there can be waits of several months for a trial date, even when the accused is detained. As defence lawyers, we certainly appreciate that criminal law presumes our client to be innocent unless the Crown is able to prove, at trial, that they are guilty beyond a reasonable doubt. Thus, because our client is presumed innocent, we will always make forceful arguments that they should be released from pre-trial custody on reasonable terms.

Recent Successes

R. vs. A.J. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $13,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter in both the civil and criminal context. No further liability. No criminal charges.

R. vs. M.M. – New Westminster Police Investigation

Charge: Sexual Assault Investigation.
Issue: Whether there was sufficient evidence for police to recommend that criminal charges be approved.
Result: Mr. Gauthier was able to guide our client through the police investigation, and to provide police with information on our client's behalf. Ultimately, police decided not to forward any charge to Crow. No charges approved. No criminal record.

R. vs. C.T. – Insurance Fraud Investigation

Charges: Fraud Under $5,000
Issue: Given our client's repayment of the alleged fraudulent health insurance benefits, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to settle the matter civilly on our client's behalf without any further civil or criminal proceeding. No charges were approved.

R. vs. A.S. – Port Coquitlam Provincial Court

Charges: Assault (domestic) Reduced to Peace Bond.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the criminal prosecution.
Result: Mr. Mines was able to steer our client through a course of rehabilitation and persuaded Crown to stay the assault charge and to allow our client to enter into a Peace Bond.

R. vs. G.V. – Vancouver Provincial Court

Charges: Assault; Uttering Threats.
Issue: Whether there was sufficient evidence for criminal charges to be approved.
Result: Mr. Mines was able to provide Crown counsel with additional information and persuaded Crown that it was not in the public interest to proceed with any criminal charges.

R. vs. M.H.E. – Abbotsford Provincial Court

Charges: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to provide information to Crown counsel regarding our client's circumstances and was able to persuade Crown that there was no public interest in proceeding with a criminal prosecution. No criminal record.

R. vs. E.C. – Vancouver Provincial Court

Charges: Sexual Assault; Assault.
Issue: Given the rehabilitative steps we guided our client through, the nature of the sex assault itself and our client's true remorse, whether a jail sentence or house arrest were required.
Result: Mr. Mines was able to persuade Crown counsel to make a joint submission for a conditional discharge. After hearing Mr. Mines' submissions on our client's behalf, the trial judge granted our client the discharge. No jail or house arrest. No criminal conviction.

R. vs. N. O. – Courtenay Provincial Court

Charges: Assault Causing Bodily Harm x2; Assault x3.
Issues: Whether there was a substantial likelihood of a conviction.
Result: Mr. Gauthier was able to provide information to Crown counsel which cast the complainant's credibility and reliability into doubt. The Crown made an adjournment application which Mr. Gauthier opposed. Mr. Gauthier was able to persuade Crown to stay all of the criminal charges upon our client entering into a Peace Bond. No jail; No criminal record.

R. v. K.T. – Insurance Fraud Investigation

Charges: Fraud Under $5000.
Issue: Given our client's repayment of the alleged fraudulent health insurance benefit claims, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Mines was able settle the matter on our client's behalf and received a Release from the insurer ending the matter without any further civil or criminal proceeding. No charges were approved.

R. vs. A.H. – Vancouver Supreme Court

Charges: Sentence Appeal - Forcible entry; Assault with a weapon.
Issue: Whether the Supreme Court would uphold our client's conditional discharge that was granted to our client by the Provincial Court.
Result: After hearing Mr. Gauthier's submissions on this sentence appeal, the Supreme Court justice agreed with Mr. Gautier and ruled that the sentence was appropriate in all the circumstances. The court dismissed the Crown's appeal. The conditional discharge was upheld.

R. v. J.F. – Dawson Creek Provincial Court

Charge: Sexual Assault.
Issue: The credibility of the complainant's testimony during this three day trial.
Result: After vigorous cross examination of the complainant and another Crown eyewitness, Mr. Gauthier made submissions which were accepted by the trial judge. The court found our client to be not guilty and aquitted him of the charge. No jail. No criminal record.

R. vs. D.C. – Port Coquitlam Provincial Court

Charges: Sexual Assault (x2).
Issue: In the circumstances of these historic charges and our client's rehabilitation, whether a community based sentence was appropriate.
Result: Notwithstanding that Crown counsel sought a 20 month jail sentence, the trial judge agreed with Mr. Mines' submission that, in the circumstances of our client's genuine remorse and rehabilitation, it was appropriate to  grant a conditional sentence of 21 months. No jail.

Showing “Cause”

A term that arises in the context of a bail hearing is “show cause.” This term refers to the burden placed (normally on the Crown) to demonstrate to the court to justify why the accused should be detained in custody. In order to show cause for detention, the Crown must satisfy the court, on a balance of probabilities, that there are reasonable grounds to do so. The three grounds that are considered include:

The Primary Ground: that the detention of the accused is necessary to ensure the accused’s attendance at court on future dates.

In cases where our client has no history of failing to attend court or no history of failing to obey court imposed conditions, we will argue that the Crown has failed to meet their burden and that our client is entitled to be released from custody.

The Secondary Ground: that the detention of the accused is necessary for the protection and safety of the public from the risk of the accused committing further offences, including interfering with or intimidating witnesses.

In cases where our client has no history of committing criminal offences, we will argue that the Crown has failed to meet their burden and that our client is entitled to be released from custody.

The Tertiary Ground: that the detention of the accused is necessary to maintain public confidence in the court to administer justice. Under this ground, the court must consider circumstances including, the apparent strength of the Crown’s case, the gravity of the offence and whether a firearm was used in the commission of the offence.

In cases where the Crown seeks detention on the tertiary ground, we will put forth a proposed release plan that will ensure that our client obeys terms and conditions to ensure community safety. We will advance arguments that “public confidence in the administration of justice” includes the notion that a well-informed public knows and appreciates that Canadian law entitles accused persons to be presumed innocent prior to a finding of guilt at trial.

Reverse Onus

While the Crown generally has the onus of proving that a detention order is necessary, there are some situations that the Criminal Code sets out that the accused has the burden of justifying their release. The conditions that trigger the “reverse onus” provisions include:

  • Where Crown alleges that an accused who has already been released has breached one or more of their release conditions (i.e. a “no contact” order);
  • Where Crown alleges that an accused who has been released has committed a subsequent offence;
  • Where the accused is charged with certain serious offences, such as firearms, weapons, drug trafficking, criminal organization or terrorism-related offences.

The existence of any of the conditions which invoke the “reverse onus” provisions make it significantly more difficult to be granted bail. It is, therefore, imperative to obtain the assistance of skilled and experienced counsel.

Preparing for a Bail Hearing

Our role as defence counsel in preparing for a bail hearing is to gather as much information as possible regarding the nature and strength of the Crown’s case. We will obtain as much of the police report to Crown as quickly as it is made available. We will meet with our client (including a visit to police lock-up or jail if necessary) and our client’s family to obtain information and to develop a release plan. In some situations, it may be necessary to raise a cash deposit or to arrange a surety to guarantee our client’s compliance with release conditions and return to court. Surety bail involves a person, usually a relative or close friend of the accused, who acts as a guarantor by pledging real estate property to secure a set financial amount (perhaps in the tens or hundreds of thousands of dollars) that is payable to the court in the event that the accused breaches a condition or fails to return to court.

In preparing for a bail hearing, we will assemble all relevant information and present it to the court in our proposal to have our client released from custody on the least restrictive conditions that are appropriate in the circumstances.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.