The right to bail is not explicitly stated in the Constitution. The 14th Amendment, however, states that an individual may not be deprived of life or liberty without due process of law. Loosely stated, an individual may not be confined for a prolonged time period without being properly charged and convicted of a crime. As a result, in a criminal prosecution, the accused is entitled to make an application for bail. If an application for bail is made, then a hearing must be held to determine whether bail will be granted. If bail is granted and the accused puts up the bail money, he will be released from jail.
Bail is determined by a judge at a bail hearing or an arraignment. This is the amount of money a defendant must provide, either by paying the full amount or by hiring a bail bondsman. Once bail has been determined and posted, the defendant is released from custody until the trial date. But how is the amount of the bail determined? Although there are guidelines, judges have discretion in setting the amount. As such, they will take several factors into consideration.
Although it might not seem like these things will matter much, they do make a difference when it comes to bail. Since the whole point of bail is to ensure that the individual will show up for court, it is a good thing if a person can prove that he or she has ties to the community, making the defendant less of a flight risk. On the other hand, someone who owns homes in different countries might have a more difficult time getting out on bail because the judge might decide that he or she might try to leave the country prior to the court date.
Conversely, the criminal justice system’s primary purpose is to respond to offences against society as a whole, and to deter the offender specifically, deter others generally and rehabilitate the offenders. Restitution of victims is a secondary concern, often viewed as militating against specific deterrence and demonstrating rehabilitation. While the views of victims of crimes are considered at bail hearings and sentencing through victim impact statements, the focus of criminal law is on the offender and the state. Criminal law is a branch of public law.
Why do the Police Want a Bail Hearing?
Bail Hearings are considered necessary when one or more of the following grounds exists in a criminal prosecution;
- If the accused has a history of failing to attend court or abide by court orders,
- Or if there is a risk that the accused would flee the jurisdiction,
- The prosecution could ask that the accused be kept in jail to ensure that they appear for the trial,
To protect the public;
- The accused should be kept in jail because they have a criminal record for similar offenses,
- A history of violence, or
- Where there is a fear that the accused will return and hurt the victim or another person, or that the accused will commit other crimes.
- To ensure that no other crimes are committed while not in jail.
To maintain confidence in the administration of justice;
- The court will consider the apparent strength of the prosecution’s case,
- The gravity of the offense,
- The circumstances surrounding its commission and,
- The potential for a lengthy jail term.
To obtain or gather evidence for the court case;
- The police may have requested the accused be held in custody because the case is ongoing,
- The police may be still gathering evidence for the case,
- The police do not want the accused to be able to contact others involved in the matter.
Since many Toronto area courts are overburdened with trials and have limited resources, when a person is arrested they can remain in jail for many months, unless they are released at their bail hearing.
If you or a family member has been arrested and are facing a bail hearing in the mississauga area contact me to discuss the bail hearing process.