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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. 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.

R. vs. R.L. - Surrey Provincial Court

Charge: Assault.(domestic)
Issue: Given the rehabilitative steps we were able to guide our client through, whether our client would be convicted of assaulting his son.
Result: Notwithstanding the breach of trust, after hearing Mr. Mines' submissions, the court granted our client a 12 month conditional discharge.

R. vs. S.B. - New Westminster Provincial Court

Charge: Public Mischief x2; Assault Police Officer.
Issue: Given our client's personal circumstances and his rehabilitation, whether there was a public interest in proceeding with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to allow our client into the Alternative Measures Program and, upon its completion, to direct a stay of proceedings. No criminal record.

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

Charge: Assault.
Issue: Whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines was able to guide our client through a course of rehabilitative steps and was then able to persuade Crown counsel to direct a stay of proceedings. no criminal record.

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

Charge: Assault Police Officer, Obstruct Police Officer.
Issue: Whether, in the circumstances, the police lawfully arrested our client.
Result: Mr. Mines was able to persuade Crown counsel that the arrest was unlawful and that, therefore, our client was able to resist the arrest. Stay of Proceedings prior to trial. No criminal record.

R. vs. S.H. - Vancouver Police Investigation

Charge: Assault.
Issue: Whether the evidence was sufficient to support a criminal prosecution.
Result: Mr. Johnson made representations to the investigating officers which ultimately persuaded police to not forward any charges to Crown counsel. No criminal record.

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

Charge: Unlawful Storage of Firearms.
Issue: Whether it was in the public interest to proceed with the criminal charge.
Result: Mr. Mines was able to persuade Crown counsel to direct a stay of proceedings upon our client agreeing to a 5 year firearms prohibition. No criminal record.

R. vs. T.Y. - Vancouver Provincial Court

Charges: Domestic Assault (x2).
Issue: Given the extensive rehabilitative steps our client took, whether it was in the public interest to proceed with the charges.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on both charges. Our client was able to reconcile with his family. No criminal record.

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

Charge: Mischief Under $5000.
Issue: Whether it was in the public interest to proceed with the charge, given the excessive force used in arresting our client.
Result: Mr. Johnson provided information to Crown on our client's behalf and was able to persuade Crown to enter a stay of proceedings. No criminal record.

R. vs. J.T. - Surrey Provincial Court

Charges: Assault; Resist /Obstruct Police.
Issue: Whether there was a substantial likelihood of a conviction and whether there was a public interest in proceeding with the charges.
Result: Mr. Johnson provided Crown with additional information regarding the alleged facts of the assault complaint and the excessive force used by police in arresting our client.  Ultimately Mr. Johnson persuaded Crown counsel to stay the proceedings on both charges. No 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.