Frequently Asked Questions
The Criminal Code of Canada, pursuant to section 145, makes it a criminal offence to fail to appear in court as directed by a Justice. As a result, if someone fails to appear at court on a designated date a warrant may be issued for your arrest on the strength of the above section.
Similarly, in situations where an individual is released from the scene station by an officer on a Promise to Appear or Undertaking with conditions and s/he fails to appear for fingerprints or their first court appearance, they can also be charged under the same section for the offence of Failing to Appear.
In some circumstances, however, a lawyer may be able to rescind(or cancel) this warrant if you contact him/her shortly after the scheduled appearance. In addition, in circumstances where you know ahead of time you will be unable to attend Court, a lawyer may be able to assist you in avoiding a charge of fail to appear in the first place by explaining your circumstances to the court in your absence.
In the event you have already been charged,at trial a Court may find you had a lawful excuse for missing your court date if you can provide proof that your failure to attend was not intentional.
In situations where you miss court, regardless of the reason, it is imperative that you retain a lawyer and address the matter as quickly as possible.
Once a bail hearing is completed, the process to change any aspect of the Court’s decision is not simply a matter of having a new bail hearing. Once concluded, the only way to change any determination made at a bail hearing is by: (i) the consent of both the Crown Attorney and Accused Person, or (ii) by Application to the Superior Court of Justice.
This means that if, at your first bail hearing a Justice of the Peace decides that you should be detained in custody, you will only be released on bail if you or your lawyer can convince the prosecutor to agree to release you on bail or if you apply to the Superior Court of Justice.
In most circumstances, the reason an accused person looses their bail hearing is because the Crown Attorney was not prepared to consent to give him/her bail in the first place. As a result, in a majority of cases, it is unlikely you will be able to convince the Crown to agree to release you on bail.
As a result, once a Justice decides to detain you in custody, the only real prospect to get bail is by applying to the Superior Court of Justice for what is called a “Bail Review.” In order to do so, you and your lawyer must file certain documents at the Superior Court of Justice. First, you must order (and pay for) three (3) copies of the written record of what happened at the bail hearing, called the “Transcript,” and provide a copy to the Crown Attorney and Court in advance of your Application for Bail Review. In addition, you must also prepare sworn statements, or affidavits, from all the proposed sureties and also serve them, along with the basis for your application, on the Crown Attorney and the Court. These affidavits should outline not only each proposed sureties personal information but also their proposed plan of supervision for the individual seeking bail.
In the materials filed, the Individual seeking bail must outline the grounds for being granted bail. There are two acceptable grounds for being granted bail:
- The presiding justice made an error in law; or
- There has been a material change in circumstances.
In both circumstances, the responsibility of proving either ground is on the person seeking to be granted bail. To prove an error in law, an individual must show that the presiding Justice decided an issue at the bail hearing that was contrary to established principles in law, such as misapplying one of the three criteria outlined in the Criminal Code with respect to bail. To prove a material change in circumstances, an Applicant must show the court that there has been either a change in the case against him/her since the bail hearing and/or there is a change in the plan of supervision that better addresses the Court’s concerns warranting a release on bail.
Hiring a lawyer for the above process is both costly and time consuming and, as such, it is always best to take your time putting together a strong bail plan in the first instance rather then bringing an application for Bail Review before the Superior Court of Justice.
Our offices have prepared and filed countless Bail Review applications and we have secured the release of our clients on charges ranging from simple assault to firearm offences. If you require further information or to arrange an appointment, please don’t hesitate to contact us by clicking here.
The Youth Criminal Justice Act (YCJA) focuses more on rehabilitation and reintegration. Therefore, the YCJA provides for a number of alternatives to the conventional criminal court process. A primary example of this is an extrajudicial measure.
For more information on the YCJA, click here.
Extra judicial measures are designed to address the alleged criminal conduct of a young person outside of the formal court process or a traditional prosecution. This means that, while a Young Person may have committed an offence, the police and/or Crown Attorney may decide to deal with it outside of the Court process. There are various types of extrajudicial measures that are available once a young person has committed an offence, including:
(i) A Police Caution
(ii) A Crown Caution
(iii) Extra Judicial Sanctions (EJS)
Under the YCJA, police officers are specifically directed to consider other options before choosing to charge the young person with a criminal offence. The YCJA states that an officer shall(before starting judicial proceedings or taking any other measure) consider whether it would be sufficient to take no further action, warn the young person, or administer a caution. This means that a Police Officer, rather than make a Young person go to Court, can choose not to charge a Young Person and, instead, may decide to have a talk with the Young Person.
Under the YCJA, Crown Attorney also have the discretionary power to administer a caution. This means that a Crown Attorney, rather than make a Young Person continue to go to Court, can choose not to charge a Young Person or withdraw charges and, in its place, may decide to have a talk with the Young Person.
Extra Judicial Sanctions (EJS)
EJS is a type of program that gives a Young Person an opportunity to resolve their charges outside of the traditional court process. A young person must be approved by the crown attorney’s office in order to participate in EJS and must accept moral responsibility for the offences in order to participate. This means that, although they are accepting responsibility, it is not in the traditional legal sense of pleading guilty but rather simply a way of making Young People learn to accept responsibility for their actions.
In order to participate in the EJS program, the YCJA stipulates several conditions that must be met, which include:
- The sanction must be part of a program of sanctions authorized by Attorney General (AG) or Authorized by a person or a member of a class of persons, designated by the lieutenant governor in council of the province (or territory);
- The sanction must be appropriate, having regards to the needs of young persons and the interests of society;
- The young person, having been informed of the sanction, fully and freely consents to it;
- The young person, before consenting, has to have been advised of the right to be represented by a lawyer and been given a reasonable opportunity to consult with a lawyer;
- The young person accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed; and
- There is, in the opinion of the Crown, sufficient evidence to proceed with the prosecution of the offence.