Any one in Canada who is arrested and charged with a criminal offence must have the issue of his or her release from custody determined. Sometimes, for relatively minor offences, the arresting police officer will release the accused upon signing a Promise to Appear in court. Sometimes the sergeant in charge at the police station will decide to release the accused upon signing a Promise to Appear and a Bail Undertaking. The Bail Undertaking sets out the conditions that the accused person must abide by during his or her release. If any condition of the Bail Undertaking proves to be problematic, the accused can have a bail hearing when he or she eventually appears in court. If the accused is facing a more serious charge, or has a previous criminal record, the sergeant in charge at the police station will usually decide to have the accused appear in court for the purpose of completing a bail hearing (show cause hearing). In those circumstances, a Justice of the Peace or a Judge will decide the issue of the release from custody of the accused. Sometimes, defence counsel and the Crown prosecutor can agree on the conditions of release. If the Crown prosecutor is of the view that the accused should not be released from custody a contested bail hearing (show cause hearing) must be completed. Usually, if the court decides to release the accused, the court will require the accused to have one or more sufficient sureties who are willing to sign a bail document called a Recognizance of Bail in which the surety or sureties agree to pledge an amount of money, which the surety or sureties may have to forfeit to the Crown, if the accused does not abide by the conditions of release.
Often, duty counsel, who is a lawyer paid by Legal Aid Ontario, can complete a bail hearing (show cause hearing) free of cost for an accused who is in custody. If you are charged with a serious criminal offence, you should not have Duty Counsel complete your bail hearing (show cause hearing). Often, duty counsel are young inexperienced lawyers. They also may not have sufficient time available to contact and investigate your possible sureties or to prepare for and complete a more lengthy bail hearing in which the police officer in charge of the case is required to testify in order to explain the case to the court and be cross-examined by defence counsel. When charged with a serious offence, you need the services of an experienced and effective defence lawyer to complete your bail hearing (show cause hearing) in order to make sure that, if appropriate, the police officer in charge of the case testifies and is skillfully cross-examined. A skillful cross-examination may expose weaknesses in the Crown's case. This can make the difference between the court ordering you released from custody or ordering your detention in custody while awaiting completion of your preliminary inquiry or trial.
A person charged with first degree murder or second degree murder must first make an appearance in the Ontario Court of Justice where a detention order will be made by the court as required by the Criminal Code of Canada. The accused must then apply for bail to the Superior Court of Justice. This requires the preparation of several documents. There is no duty counsel in the Superior Court of Justice. Accordingly, the accused must have his or her own lawyer complete this process.