Blog Posts
Taking Your Bail Hearing Seriously
A person charged with an offence has the
right not to be denied reasonable bail under s. 11 (e) of the Canadian Charter of Rights and Freedoms.
Accused persons must however note that their request for bail may be denied if
their detention is justified on one or more of three grounds: 1) the detention
is necessary to ensure the accused person’s attendance in court. 2) The
detention is necessary for the protection or safety of the public, including
any victim of or witness to the offence, and to prevent further commission of
an offence by the accused. 3) The detention is necessary to maintain confidence
in the administration of justice.
Seeing that a bail application may be denied on reasonable grounds, accused persons must ensure that, should they choose to represent themselves, they know what they are doing. When this is not the case, the safest course is to retain a lawyer not least because the outcome of a bail hearing can “have serious practical effects on the accused’s ability to raise a defence, and can thereby have a second, more indirect, prejudicial effect on the accused’s liberty rights and the criminal justice system as a whole.” (Supreme Court of Canada: R v Hall, 2002 SCC 64). According to H. L. Packer, in, The
Limits of the Criminal Sanction (1968), (at pp. 214-15): An accused person who is confined pending
trial is greatly impeded in the preparation of his defense. He needs to
be able to confer on a free and unrestricted basis with his attorney, something
that is notoriously hard to do in custody. He may be the most likely
person to interview and track down witnesses in his own behalf — something he
cannot do if he’s in jail. His earning capacity is cut off; he may lose
his job; his family may suffer extreme economic hardship. And all these
things may happen before he is found to be guilty. Furthermore, the
economic and other deprivations sustained as a result of pre-trial confinement
all act as coercive measures that inhibit the accused person’s will to
resist. He is rendered more likely to plead guilty, and, as a result, to
waive the various safeguards against unjust conviction that the system
provides. When this happens on a large scale, the adversary system as a
whole suffers because its vitality depends on effective challenge. In sum, whether the accused person has retained a lawyer or is representing himself, he or she, in conjunction with family members, must ensure the availability of suitable sureties in appropriate cases and the availability of witnesses to support their case with regards to the grounds that may justify the detention of the accused. |
Did You Know?: A Plea of Not Guilty
A plea of 'not guilty' is not a claim of innocence. It is a demand by the accused that the prosecutor should prove all the elements of the offence in question. The plea also requires the prosecutor to disprove the existence of any defences. When an accused person is unsure how to proceed, the safest course is to retain a lawyer for advice or legal representation at the arraignment and trial. |