Bail – Types
When a person is charged with a criminal offence and released from custody pending its disposition (bail), the person will be released on one of two main types of order: either released by the police from the station or released from the court house.
If a person is released by the police without appearing before a Justice of the Peace, they will be released on an Officer in Charge (OIC) UNDERTAKING.
If the accused is brought before a Justice in court, then typically the release is called a RECOGNIZANCE. Both types of document contain conditions that have full legal effect and must be complied with.
Regardless of which type of release is ordered, the accused’s release from custody will be subject to CONDITIONS.
A condition is a requirement that an accused person must follow if they are to remain out of jail. Some conditions require that an accused perform some action (go to drug counselling). Some conditions require that an accused refrain from performing some act (not to be away from residence between certain hours – curfew).
Failure to follow these terms invites re-arrest, new charges (see breaches of court order) and cancellation of the previous form of release. Some accused who were released initially are no longer eligible for release and must remain in custody before trial.
An incredibly common condition for accused persons is not to have any contact with a witness or victim of the offence either directly or indirectly. Typically there will be a radius from the person’s home or workplace. This is quite often difficult for accused person to follow in a domestic partnership because the victim is often the one initiating the contact. It will not matter to the police who initiated the contact. An accused person with this condition is required to take positive steps to avoid the victim or witness. If they happen to come into their vicinity by happenstance, the accused person must leave immediately. No exceptions.
Varying the Conditions
All too often an accused person is released from custody on the promise to follow his or her conditions, but then discovers that a condition is unworkable. Naturally, there is a temptation to agree to anything in order to be released. Once released, the accused comes to terms with the reality of the new conditions and how it restricts their liberty.
They quite often wish to change their conditions because they do not like them. Perhaps another justification is relied upon to explain why the condition should be changed, claiming some need. However, conditions were the cost of being released. Accused people must understand that they are not easily changed.
It IS possible to vary the conditions but usually not on the accused person’s schedule. Meaning, it usually takes months of following the stringent conditions before anyone (either Crown or Court) would consider altering them.
Consent of the Crown
If the Crown consents to the variation, it is much more likely to happen. It can usually be done without a formal hearing. Depending on the condition being sought to change, it can sometimes be very difficult to obtain the Crown’s consent.
Formal Variation Hearing
Failing the Crown’s consent, it is possible to schedule a hearing to argue the change in condition. It is effectively a bail hearing except the accused is already out of custody. This can be a costly and time-consuming pursuit.
However, if successful, the condition will be changed and the old form of release modified to include the new terms.