Albertans are innocent until proven guilty. But upon arrest, and prior to having their day in court, they are at a distinct disadvantage.
What does it mean to be ‘out on bail’?
We hear it all the time in movies, but most Albertans are unsure of their rights and how to exercise them if they’re arrested and held in custody.
The situation is more common than you’d think. In fact, Legal Aid Alberta’s Justice of the Peace bail lawyers handle roughly 30,000 hearings every year.
But what is bail and how does it work? And who exactly might find themselves in this kind of situation?
Dave Lloyd, an experienced Justice of the Peace bail lawyer with Legal Aid Alberta outlines what you need to know if you or someone you know gets arrested.
What is bail and how does it work?
‘Bail’ refers the time between when a person is arrested and when the court finishes dealing with the person’s charges (guilty, not guilty, sentence decided, charges stayed, etc.). If the person is out of custody and living in the community during that time, then that person is out on bail or ‘on release.’ This decision is made either by the police or by the courts. This decision is crucial – the denial of bail may lead to job loss and family breakdown as the individual remains in custody.
If a person has no criminal record and has been arrested for a minor offence, police can release the person without having to appear before a court. This is called an officer release.
If a person is arrested on a serious charge or does not accept the conditions for an officer release, then they must appear before a court. The court can either deny the person bail or release them on a ‘release order.’ If the court releases the person, they will then set the date of the person’s next court appearance.
An individual’s first court appearance will be before a Justice of the Peace (JP). The law says this appearance must happen within 24 hours of a person’s arrest, but ideally as soon as possible. This reflects the importance of the decision and the impact on people’s lives if they remain in custody without a legal reason.
Do I need money to get out on bail? Is it really the same as it’s portrayed on TV where people must pay for their release?
Sometimes. The court can decide that money must be paid before a person is released on bail. However, they don’t have to. The court can choose to release someone on a ‘promise to pay,’ which means the person in custody or another person promises to pay a certain amount if they miss a court date or disobey a bail condition. The court can also provide release with no financial obligation at all, but it will still be a criminal offence to miss court or disobey a condition.
For an officer release, there is usually no dollar amount to be paid as one of the conditions for bail.
When might someone find themselves in custody and in need of a bail hearing?
Anyone can get arrested. It could be as simple as someone who forgot about a traffic ticket that required a court appearance and has been arrested for failing to appear.
We also see people struggling with addictions, mental health issues and other challenges that bring them into conflict with the law.
Legal aid duty counsel lawyers are available to provide free legal advice and can represent you at your bail hearing.
How important is a bail hearing?
You only get one bail hearing. If bail is denied, you could spend another 30 days in custody before you can appeal that decision. There’s a lot riding on that one hearing and that’s why Legal Aid Alberta lawyers are available to represent you. People who represent themselves, who aren’t lawyers, can make some very costly errors.
What are the typical criteria to get bail?
To release you on bail, the court must believe that:
Are there different forms of release when it comes to being granted bail?
Yes. The available forms of release are:
All forms of release may have conditions that you have to obey while on bail, such as a curfew, places you cannot go, people you cannot contact, things you must not possess and other things you must or must not do.
All forms of release require you to attend your court dates personally or through a lawyer.
What happens if bail is denied?
If a court denies you bail, you will stay in jail until the charges you were denied bail for are dealt with fully by the courts. Thirty days after you’re denied bail, you can appeal to the Court of Queen’s Bench and ask for a second bail hearing, but the Court of Queen’s Bench does not have to grant your request. In contrast, if a Justice of the Peace denies bail to a youth, the youth is guaranteed the right to have a second bail hearing before a Judge in courtroom.
A court can only deny you bail for three reasons. These are that the Court believes (1) you will not come to court to deal with your charges, (2) you will commit offences, be a danger to society or disobey bail conditions while on release, or (3) releasing you would cause the public to lose confidence in the administration of justice.
Why is legal representation important at a bail hearing? What sorts of mistakes do people make when they represent themselves?
Common mistakes people make are to talk about the offence or to try to minimize it. Or talk their way out of it, which usually just makes things worse. They might have kids at home or a dog to feed and those are very important, but they don’t meet the legal criteria for release.
We’re all presumed innocent, so to lose your freedom even when innocent, this could mean that you lose your job, your housing – everything. You’re far better off with legal representation.
What information is the court looking for?
You should be able to provide information about where you’re living and working. If the court asks about your sources of income, you must report all your income sources, including non-employment sources such as government assistance. The Justice of the Peace or judge may want to see some sense of stability and connections to the community. If you’ve missed court dates, you should let your lawyer know about your plan to make it to the next appearance. It has been difficult during COVID for some people to make it to court – they may have been in quarantine or had other issues like transportation and they can make those situations known to their lawyer to explain to the court.
Is bail ever delayed?
Both you and the Crown have the right to ask the Justice of the Peace for an adjournment (postponement/delay) of a release hearing. This means that the JP does not make a decision about bail and sets a date for you to appear before a judge who will then decide. At that appearance, either side can request another adjournment. The court does not have to grant adjournment requests and cannot adjourn the matter for more than three clear days without the other party’s consent. If a bail hearing is adjourned, you will stay in jail until at least the next court date.
Can bail ever be revoked?
Yes. If the Crown asks the court to cancel bail that you were previously granted or change the conditions or dollar amount of your bail, the court can do so if it sees fit.
What happens if a person is arrested while already on bail?
If someone is already on bail when they get arrested, the court must deny them bail unless the arrested person (or their lawyer) can convince the court to release them. This is called ‘reverse onus.’ This can also occur in other circumstances, such as if a person is charged with domestic violence and they already have a domestic violence charge in their criminal record.
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Albertans are innocent until proven guilty. But upon arrest, and prior to having their day in court, they are at a distinct disadvantage. LAA’s Justice of the Peace (JP) bail duty counsel are available from 8 a.m. to midnight, 365 days a year, to inform, advise and represent arrested people in bail hearings. The work is done at no cost, by telephone and online platforms. LAA’s JP bail duty counsel section works collaboratively with the courts and Ministry of Justice to make prompt and effective access to justice a reality for all Albertans, from their first point of contact with the justice system.
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