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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. J.A. - Vancouver Provincial Court

Charges: Personation, Use of Forged Identity Documents, Resist Arrest.
Issue: Whether the search and seizure of the documents was an unlawful Charter breach.
Result: Mr. Mines was able to persuade Crown and the Court that, in all the circumstances, it was in the public interest to grant our client a conditional discharge without any reporting condition. 

R. vs. J.H. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm (domestic).
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to convince Crown counsel to enter a stay of proceedings just prior to the trial date. No criminal record.

R. vs. J.B. - ICBC Fraud Investigation

Charge: Theft Under$5000.
Issue: Whether there was a public interest in approving the charge.
Result: Mr. Johnson was able to persuade Crown counsel that there was no public interest in approving any charge whatsoever. No criminal record.

R. vs. M.K. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether it was appropriate for our client to be granted a conditional discharge.
Result: Mr. Mines was able to persuade the trial judge to grant our client a conditional discharge rather than the conviction that Crown counsel was seeking. No criminal record.

R. v. M.P. - Vancouver Provincial Court

Charge: Theft Under$5000.
Issue: Whether there was a public interest in approving the charge.
Result: Mr. Johnson was able to persuade Crown counsel that there was no public interest in approving any charge whatsoever. No criminal record.

R. vs. O.A. - Surrey Provincial Court

Charge: Assault (domestic). Issue: Given the lack of clarity…

R. vs. A.U. - Vancouver Provincial Court

strong>Charges: Sexual Assault; Assault; Theft Under; Breach of Undertaking.
Issue: Given our client's circumstances and the circumstances of the allegations, whether it was in the public interest for Crown to proceed with all charges.
Result: Mr. Mines was able to persuade Crown counsel to proceed only on the assault charge and to stay proceedings on all other charges. After considering Mr. mines' submissions, the Court granted our client a conditional discharge and placed him on probation for 12 months. No criminal conviction.

R. vs. V.P. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Police Officer.
Issue: Given some weakness in the assault with weapon charge and the rehabilitative steps our client had taken, whether it was appropriate for the Crown to seek the jail sentence they were originally seeking.
Result: Mr. Johnson was able to persuade Crown counsel to enter a stay of proceedings on the AWW charge and to jointly seek a conditional discharge on the assault police officer charge. No jail. No criminal conviction.

R. vs. S.K. - Surrey Provincial Court

Charges: Fraud Over $5000 (from Employer).
Issue: Given the civil settlement  we were able to obtain on our client's behalf, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson, after successfully negotiating a civil settlement with the complainant, was able to persuade Crown counsel to not approve the criminal charges that RCMP had recommended. No jail. No criminal record.

R. vs. D.M. - Vancouver Provincial Court

Charges: Impaired Driving; Driving Over .08.
Issue: Whether it was in the public interest for Crown counsel to proceed with the criminal charges.
Result: Mr. Johnson was able to persuade Crown to allow our client to resolve this matter by pleading guilty to a lesser offence under the Motor Vehicle Act. Our client received a driving prohibition and fine. No criminal record.

R. v. S.W. - Courtenay RCMP Investigation

Charges: Possession for the Purpose of Trafficking.
Issue: Whether the search of the vehicle and our client was lawful.
Result: Mr. Mines was able to steer our client through the investigation and made representations to police that the search was unlawful. Police declined to recommend any  charges. No criminal record.

R. vs. A.N. - Vancouver Provincial Court

Charges: Assault with a Weapon.
Issue: Given the rehabilitative steps we guided our client through, whether it was in the public interest for Crown to seek a conviction on this charge.
Result: Mr. Johnson was able to persuade Crown to permit our client to plead to the lesser offence of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. No criminal conviction.

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.