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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. P.S.A. - Vancouver Provincial Court

Charge: Assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Johnson was able to direct Crown counsel to gaps in the police investigation resulting in Crown deciding to not approve any charge in this matter. No criminal record.

R. vs. S.J. - Port Coquitlam Provincial Court

Charge: Driving While Prohibited. Issue: Whether the crown…

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

Charge: Assault; Uttering Threats (domestic).
Issue: Given the rehabilitative steps our client achieved under our direction, whether there was a public interest in proceeding with the criminal prosecution.
Result: Mr. Johnson was able to persuade Crown counsel to stay the charges.  All restrictive conditions removed. No criminal record.

R. vs. C.S. - Port Coquitlam Provincial Court

Charge: Assault (domestic).
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Mines was able to point to a lack of evidence with respect to the charge resulting in Crown counsel entering a stay of proceedings. No criminal record.

R. vs. N.D. - Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Johnson was able to direct Crown counsel to various flaws in the prosecution's case. On the eve of a 4 day trial, Crown agreed to resolve this matter by way of a nine month Peace Bond. No criminal record.

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

Charge: Driving While Prohibited.
Issue: Whether it was appropriate for Crown counsel to proceed on this charge, which carries a mandatory minimum 12 month driving prohibition.
Result: Mr. Johnson was able to persuade Crown to proceed on the lesser offence of driving without a valid driver's licence. After hearing Mr. johnson's submissions, the court imposed a $500 fine. No driving prohibition.

R. vs. B.C. - Vancouver Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Given the rehabilitative steps our client had taken, whether it was in the public interest to proceed with the criminal charge.
Result: Mr. Johnson was able to persuade Crown counsel to stay the criminal charge. Our client entered into a Peace Bond for a period of 9 months. No criminal record.

R. vs. Z.H. - Port Coquitlam Youth Court

Charge: Assault Causing Bodily Harm.
Issue: Whether, given the history between our client and the complainant, it was reasonable for our client apply  the level of force he used.
Result: Mr. Johnson was able to persuade Crown to not approve any criminal charge but, rather, to resolve the matter through Restorative Justice. No criminal record.

Y.Y. vs. Superintendent of Motor Vehicles - Review of Driving Prohibition

Charge: Notice of Intent to Prohibit.
Issue: Whether RoadSafety BC had appropriate reasons to prohibit our client from driving for 4 months.
Result: Mr. Johnson was able to persuade the Superintendent's adjudicator that the 4 month driving prohibition was not warranted. The driving prohibition was reduced to 2 months.

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

Charges: Assault (x2); Threatening; Breach of Undertaking (domestic).
Issue: Given the rehabilitative steps our client had taken, whether it was appropriate for the Court to convict him.
Result: Mr. Mines was able to persuade Crown to proceed on only a single count of assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge. No criminal conviction.  

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

Charges: Dangerous Driving Causing Bodily Harm; Driving Without Due Care and Attention.
Issue: Whether it was appropriate for Crown to charge our client under the Criminal Code or the Motor Vehicle Act in regard to an accident where our client's vehicle struck a cyclist from behind, causing serious injury.
Result: Mr. Mines was able to provide information to Crown which resulted in Crown proceeding under the Motor Vehicle Act. After hearing Mr. Mines' submissions, the Court sentenced our client to a $1000 fine and limited his ability to drive for 12 months. No criminal conviction. No loss of insurance coverage. No jail.

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

Charge: s. 810 Peace Bond Application.
Issue: Given the rehabilitative steps our client had taken, whether the complainant continued to have fear of our client.
Result: Mr. Mines was able to persuade Crown counsel to withdraw its Peace Bond application. No conditions. No 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.