In most instances after a person has been arrested, they are taken to the police station. There are constitutional rights that need to be given to and exercised by the accused (right to call a lawyer).
Often the police want to give the accused an opportunity to make a statement regarding the offence.
Once all of this is completed, a decision will be made as to their risk profile and whether the accused poses a continuing risk if they were to be released from custody.
Released from the station
Whether an accused is released from the station or held is an exercise of police discretion. Senior officers at the station evaluate the accused’s risk profile and determine whether to release from the station or bring the accused into court. Therefore it can be difficult to predict which option will be selected based upon the limited information present in the early phase of the arrest and charging procedure.
However, it can be said that it is common for first time offenders and youth to be released from the station, especially for non-violent offences.
Released from Court – on consent
If the accused is not released right away they will be brought to court to decide the bail issue (usually the next morning but not always). By this time, an accused person has often contacted a lawyer. That lawyer will usually either attend personally the next day or delegate someone from their firm to attend if they are personally unable.
If brought to court, the lawyer can sometimes negotiate the accused’s release with the Crown Attorney. Quite often, this negotiation involves having a person (typically a family member of the accused) agree to supervise the accused while on bail. This office is known as a surety.
Released from Court – bail hearing
If the Crown is unwilling to release the accused under any circumstances, then the accused must fight to obtain their release at a bail hearing. A bail hearing is a formal hearing where the allegations are made known to the Justice of the Peace (the presiding judicial officer at the hearing). Any criminal record the accused has will be tendered against them. Then the accused will be expected to present their plan of release (sureties, conditions, where they will live).
A bail hearing can often be set within a few days of arrest. A note of caution: it is sometimes advisable to delay bail for a week or more while a proper plan of supervision is devised. The pressure to get out of jail is high but a failed bail hearing means at least 30 days in custody so it is important to organize all the details. While awaiting the bail hearing, the accused person stays in custody.
What is being determined at the bail stage is whether conditions can be crafted to avoid the accused person:
- not showing up for court;
- not following their conditions; or
- committing new criminal offences.
Released from Court – bail review
If a person is detained at the bail hearing, they must wait a minimum of 30 days before applying for a review of the decision. There is additional cost to this process and it is quite time consuming.
There are two grounds for release at the bail review stage: 1) error of law; or 2) material change in circumstances.
Error of law means that the Justice of the Peace made an error in their reasoning in that they misapprehended the evidence, placed inappropriate weight on a piece of evidence, misstated the law or otherwise made a palpable error.
Material change in circumstances means that something has changed in the case that justifies reviewing the bail issue. Either new evidence has surfaced, previous evidence is called into question, or a new plan of supervision has emerged. One of these changes could be sufficiently material to justify a hearing.