Bail or Show Cause Hearing

Mark: Hi, it’s Mark Bossert, Top Local Lead Generation. We’re here talking with Criminal Lawyer in Vancouver, Troy Anderson. Troy has been a lawyer for twenty years; actively, very actively involved in defending folks in Vancouver, British Columbia. Troy, welcome to the show.

Troy: Thank you for having me.

Mark: So, Troy today we want to talk about bail or it’s got a different name here. What are the types of bail here in British Columbia?

Troy: I think the other name you’re probably referring to is Judicial Interim Release. That’s one, the more commonly used one is one that would be called an Undertaking to Appear or an Undertaking to a Peace Officer and this is when you are arrested and you’re dealt with on a relatively minor charge and then released by a police officer either at the scene or at the police station and they will commonly release you on what’s called an Undertaking to Appear and it will have conditions attached to it. Not many people understand that’s actually a form of bail which has conditions which do bind you just as if a judge had posted. There are procedures to review that type of bail but that may be a bit beyond our scope today. I think maybe more useful for everyone would be the talk about what we commonly call a bail hearing, the actual general bail hearing and I think that’s probably what you’re asking.

Mark: Sure, so what’s the difference, like is there, is it the level of charge that triggers the difference?

Troy: It is the level of charge and the police officer has limited authority to release you on an Undertaking to Appear. Some of the more serious charges they may not have that authority, for example, murder, you couldn’t ever be released, you can only be released by a Superior Court Justice or it may be that it fits within their policy that you have to be taken before a Judge. An example may be a domestic, an allegation of domestic assault and so the most important difference is when you are released by a police officer you don’t have an opportunity to be heard, that is that you don’t have an opportunity to make submissions on the conditions that you’re being found by. You’re simply released on those conditions and if you refuse to sign the Undertaking then you remain in jail until you have an opportunity to appear in front of a Judge and the reality is most people simply sign so they can get out. Most people frankly will sign anything to get out of jail. It’s not a very pleasant place to be, but it’s not hopeless in that point because you do have a right to have that Undertaking reviewed by a Judge. So that’s the most important difference. Your most, your more common type of bail, I mean what people think of when they think of bail is the actual bail hearing. So, you’re arrested, you’re charged with an offence, you’re then taken, you are the held in custody and you’re taken before a justice or a judge the next morning. What happens then is the Crown Prosecutor will present his or her case to the Court to show cause, why you ought to be denied bail or perhaps released on certain conditions and that bail may or may not have a deposit attached to it, be it a cash deposit which is just what is sounds, it’s a deposit of cash or Surety Bail and Surety Bail is a responsible person in the community who is prepared to post a portion of their equity in a piece of real property such as a house, or a condo or something like that. That kind of a Bail Hearing is done for more serious charges and if you or a loved one is in a situation where you’re facing an actual Bail Hearing in that regard I think it’s very important to get legal advice right away because your are in real jeopardy of being denied bail and if you are denied bail subject to the review provisions of the code you’re generally held in custody until your matter is concluded which can take months or years depending on the seriousness of the charge. The other thing you need to be aware of with regard to bail is that certain types of offences place the onus upon the person in custody to show cause why they ought to be released, so for example, if you are in custody having alleged to have breached a condition of previous bail by having committed a further offence then the onus is actually on you to show cause why you ought to be released. The onus is typically on the Crown to show cause why you need be detained.

Mark: So, it gets pretty important, fairly soon and probably, you know certainly more sooner than I would have expected, that you know, you can, you might be in a spot of bother way before you even knew that you could be in a lot of trouble.

Troy: Absolutely. Apart from the final finding of guilt vs not guilty the decision to grant or refuse bail is the most important one in the entire process. If you are refused bail and you’re trying to mount a defence, you’ve probably lost your job, you may have lost your home, you cannot have access to digging up witnesses, it’s more difficult to get in touch with your lawyers, it’s more difficult to meet with your lawyer. You don’t get to make phone calls whenever you want, you certainly aren’t allowed to send emails to people, so it really, really hampers your ability to defend yourself in fact. Which brings us into the next point and you alluded to that, which was getting a lawyer involved early, and what many people are, when they are arrested and taken before the Court is there will be a free Duty Counsel there and a Duty Counsel is the free lawyer who is available to anyone free of charge who is unable or unwilling to pay for their own one so your typical street person for example, will often use Duty Counsel because they don’t have the financial means to hire their own lawyer and that’s great. There’s a lot of Duty Counsel that do very, very good work but they are limited by time so if you are in a busy Court House and you’re the Duty Counsel you may see anywhere from twenty to forty people in one day and you are then trying to conduct a Bail Hearing or give advice to twenty or forty people who are in custody and so you’re just unable to do that as well as you could if you were representing only one client for example. So if I had my own client in Court I may do one Bail Hearing in a morning, perhaps another one in the afternoon. If you’re Duty Counsel you’re doing ten or twenty times that.

Mark: And so that just means you just don’t have the time, you’ve got five minutes to look at the case or whatever . . .

Troy: Absolutely and Duty Counsel’s typically only there for that one day, perhaps two or three days in a row and what they are really unable to do and it’s frankly outside of what they are expected to do is on a more serious charge put together a plan for release, so the most extreme example would be Murder Bail and Murder Bail you actually have to apply for bail in front of the Supreme Court and you need to get affidavit material prepared from the person who’s going to post your Surety, you need to have a coherent plan in place about where you’re going to live, who’s going to ensure your good conduct in the community, the conditions you’re prepared to abide by, you’re going to have some evidence about the financial means of the person who’s proposed to be of Surety or the source of your cash deposit for example and that’s not something that’s going to happen in a morning, that generally takes weeks before you can apply for a Murder Bail but even something less serious, let’s talk about a robbery or perhaps a kidnapping where bail can be done in Provincial Court. You’re not going to get released simply because you promise to come back to Court. You need to have somebody there to put together a coherent plan so you maximize your chances of getting bail because the consequences of being refused bail are terrible.

Mark: So just to be, you know, clear about it, I guess if somebody’s in that, any of those more serious kinds of charges they can literally spend months to years in jail before their hearing starts.

Troy: If you were detained in custody even in a relatively serious matter, or rather a relatively minor matter, I should say, you can expect to spend anywhere from three to six months awaiting your trial and so many people simply give up and plead guilty because the reality is for some of those less serious charges you’ll serve less time than if you, even were ultimately acquitted because of course you don’t get that time back and in more serious matters, yeah you could spend months or years in jail awaiting trial. Murder trial often takes a couple years from start to finish and so if you refuse bail that’s two years.

Mark: Right, so it becomes fairly important that your lawyer has a plan, is experienced, is able to formulate a strategy for you that’s going to give you, avail you of all the opportunities to defend yourself.

Troy: Absolutely. What you need is somebody who’s experienced and who has the time or will make the time to review the case against you and then to come up with a plan for your release because as I said, the consequences of failing are terrible and it’s important to get someone involved early and then to allow them to take the time to do the job properly.

Mark: So Troy, how does, how does someone get ahold of you if they’re ever, if they ever get themselves into some trouble that they need a lawyer.

Troy: Well, we as you indicated at the outset we have our website which is so you can, all contact information is on there. My email is but if you or someone you know is in trouble and needs a bail hearing you phone me directly either at the office at 604-638-9188 or for the true emergency and by that I mean that you are actually sitting in a jail cell you phone me directly on my cell phone which is 604-916-1870 and for any other general questions you simply visit the website, again

Mark: Awesome. Thanks a lot Troy. You’ve opened my eyes about the importance of bail and making sure we have a good lawyer. Thanks.

Troy: Thank you for your time.