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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.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.

R. vs. J.J. - Richmond Provincial Court

Charges: Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of  the Crown being able to prove that bodily harm occurred.
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.

R. vs. S.W. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given that the complainant had instigated the altercation, whether it was in the public interest for our client to be convicted of the offence.
Result: We were able to guide our client through a course of rehabilitation and, after hearing Mr. Mines' submissions, the Court granted our client a conditional discharge and placed him on a non-reporting probation order for six months. No criminal conviction.

R. vs. S.W. - Richmond Provincial Court

Charge: Refusing to comply with a testing demand.
Issue: Given the circumstances of the offence and our client, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser Motor Vehicle Act offence of driving without due care. Rather than a criminal conviction and a minimum 12 month driving prohibition, our client was liable to pay a $350 fine and a 2 month driving prohibition. No criminal record.

R. vs. H.S. - North Vancouver Provincial Court

Charge: Driving While Prohibited.
Issue: Given the circumstances of the offence and our client, whether it was necessary for Crown to proceed with the driving while prohibited charge, which carries a mandatory minimum 12 month driving prohibition.
Result: Mr. Johnson was able to persuade Crown to proceed on the lesser Motor Vehicle Act charge of driving without a driver's licence. After hearing Mr. Johnson's submissions our client was sentenced to a fine and a 4 month driving prohibition.

R. vs. J.S. - North Vancouver Provincial Court

Charge: Assault Causing Bodily Harm (domestic).
Issue: Whether the Crown could prove that bodily harm resulted and, whether the rehabilitative steps our client had taken justified the Court granting a conditional discharge.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the charge of common assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge. No criminal conviction.

R. vs. C.M. - North Vancouver Provincial Court

Charge: Assault; Threatening.
Issue: Whether there was a substantial likelihood of conviction in this alleged "road rage" case.
Result: Mr. Johnson was able to provide information to Crown counsel on our client's behalf that led Crown to conclude there was no substantial likelihood of conviction. No charge approved. No criminal record.

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

Charges: Theft Under $5000; Uttering Threats.
Issue: Whether, given our client's circumstances and remorse, whether it was in the public interest for criminal charges to proceed.
Result: We were able to provide information to police investigators which resulted in police deciding to not forward any charges to Crown. No criminal record.

R. vs. H.L. - Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Johnson was able to provide information to the Crown on our client's behalf that persuaded Crown that the case did not meet the charge approval standard. No charge was approved. No criminal record.

R. vs. S.F. - Provincial Court of Newfoundland

Charge: Possession for the Purpose of Trafficking (Marijuana).
Issue: Whether it there was a substantial likelihood of obtaining a conviction.
Result: Upon considering Mr. Johnson's representations, Crown counsel concluded that there was no longer a likelihood of conviction. Crown withdrew the charge, bringing the matter to an end. No criminal record.

R. vs. M.B. - Surrey Provincial Court

Charge: Application for firearms prohibition and forfeiture.
Issue: Whether Crown could establish that our client posed a risk to himself or others.
Result: Mid trial, Mr. Mines was able to obtain a successful resolution in which our client consented to an 18 month prohibition rather than the 5 years Crown had been seeking.  Further, rather than having to forfeit the  $15,000 worth of weapons that police seized,  Crown agreed to allow our client to sell them to a suitable buyer.

R. vs. C.B. - Vancouver Police Investigation

Charge: Possession of proceeds of crime.
Issue: Whether there was any lawful authority to arrest our client and seize funds from him.
Result: Mr. Johnson was able to persuade the investigating officer that there was no basis to search our client and to return the $2400 cash that he had seized. No charges approved. Not criminal record.

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.