Impaired Driving
Defence

Bail and release from custody

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Why get a lawyer?

• Should I get a lawyer when I'm arrested?
• Do I need a lawyer for my bail hearing?
• Get it right the first time

Your lawyer may be able to negotiate the terms of release from the police station or those to be recommended by police to the Crown Attorney at a bail hearing. This could be the key to obtaining a release order rather than a detention order.

While a state-funded lawyer (duty counsel) may be available to assist you with a bail hearing at no cost, it may be helpful to hire a lawyer for the following reasons:

• Duty counsel invariably has other cases to handle and cannot give yours all the attention it may need.

• A privately retained lawyer can take the time to carefully interview you and potential sureties, and line up treatment, if required, for psychiatric or substance abuse problems. Demonstrating that treatment is in the works will help allay possible concern that you will reoffend.

• A lawyer can help arrange letters from your school or employer and help arrange post-release accommodation. The court may fear that without proper accommodation there is increased risk you will reoffend.

• A lawyer can take steps to have police officers or other witnesses attend the bail hearing to testify about weaknesses in the Crown's case; the weaker the Crown's case, the harder to justify your detention.

• A lawyer can help prevent the imposition of unreasonable or onerous bail conditions. For example, the Crown may seek bail in an amount beyond the financial reach of your proposed sureties. Or it may seek a curfew or demand that you report frequently to a faraway police station when such terms are unjustified.

If your bail hearing is unsuccessful and you are ordered detained, you may apply to a higher court for a review of the detention order. But it may be a few weeks before a "bail review" can be launched and there is no guarantee that a higher court will order your release. And a bail review can be costly.

Securing the release of an accused can be critical to the successful defence of a charge. Often, persons who are ordered detained plead guilty because they are desperate to get out of jail.

It is much easier for an accused and his lawyer to prepare for trial if the accused is out of custody. Custody encumbers communication between the accused and his lawyer, who is restricted to jail visits at certain hours. Telephone access is not always available. In addition, jail visits may entail increased legal fees.

Further, an accused who is out of custody can participate in counselling and treatment that may help achieve a lighter sentence in the event he is found guilty or even assist in getting the Crown to drop the charges.

Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.