Are you concerned about the charges being brought against someone you know? Perhaps they have yet to be released on bail and are stuck in jail awaiting trial. It can be difficult to understand the legal processes behind these situations. For example, why do some people get away with more serious offences while others remain incarcerated for much longer? In some cases, this can come down to whether or not they get a consent variation, allowing them to be released from the court’s custody sooner.
In this blog post, we’ll try to make understanding consent releases and contested bail easier by sharing information on what each entails.
Remember, if you or someone you know is currently facing a consent release or contested bail issue, it’s imperative to research your options and consider hiring an experienced criminal defence lawyer to assist in the process.
Understanding Consent Variations
Before we discuss consent releases and contested bail in more detail, we will begin by explaining the basics of consent variations in Ontario.
A consent variation is a way to change either your bail conditions or police undertaking. Bail is a form of temporary release from jail, while an undertaking is a written promise to follow certain rules. A consent variation is required when the accused wishes to adjust their previously established bail conditions or conditions set by the police in an undertaking.
Consent variations are typically requested to ease restrictions on the accused, like allowing them to move freely within certain boundaries, providing access to electronic communication devices, or giving permission for employment even if it was not stated originally.
If the court approves a consent variation, it will become part of the original bail order or undertaking. Therefore, it must be complied with just like any other condition already set out. The result of consent variations is often that the accused can live at home while their case is in court, rather than in prison.
Getting Released on Consent
Next, let’s cover consent releases and what this means in Ontario criminal courts.
As Steps to Justice explains about consent releases: “Before you’re brought into the courtroom, your lawyer or duty counsel will often talk to the Crown prosecutor about your plan for release. If the Crown thinks you can be released, and your lawyer or duty counsel agree with the Crown on the conditions of your release, a “consent release” will be proposed to the court.”
Then, it is up to the judge or justice of the peace to determine if the conditions set forth are acceptable. In some cases, your surety (someone who agrees to supervise you while you are out on bail and also agrees to pay a certain amount of money if you don’t appear in court) may be required. If the consent release is approved, you will be released provided all of the terms set by the court are agreed to.
However, the court may not agree to this proposed plan. In that case, you and your Ontario criminal lawyer will work together to come up with a plan that addresses the court’s concerns about your release.
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The court might also reject the release altogether. In this case, there will be either a contested bail hearing or a “show cause” hearing.
Contested Bail Hearings
In the case of a contested bail hearing, it is up to the Crown to show cause and demonstrate why you should not be released. Your comprehensive bail plan should be able to counter any argument made by the Crown and justify why you are, in fact, safe to be released back into the community.
Show Cause Hearing
Alternatively, the onus to “show cause” and prove why you should be released could be placed on you instead.
These are also known as reverse onus bail hearings and they tend to happen under the following circumstances:
- The accused was already on release and now faces new criminal charges
- The accused didn’t follow their conditions while on release
- The accused was charged with certain serious offences, including a drug offence involving the sale of drugs
Following either a contested bail hearing or a reverse onus hearing, the judge or justice of the peace will ultimately make a decision about whether you should be released.
Consent Releases and Contested Bail: FAQs
Next, let’s review frequently asked questions about consent releases and contested bail.
What happens at a “show cause” hearing or reverse onus hearing?
At a show cause hearing or reverse onus bail hearing, it is up to you (or your criminal defence lawyer) to prove why you should be released from prison. This is done by presenting a well-thought-out and comprehensive bail plan that addresses any concerns the court might have about you being released.
What is a police undertaking?
When an individual is charged with certain offences, a police undertaking might be used to place them under certain conditions. For example, the accused might be required to stay away from a certain location, abstain from alcohol, or not contact specific individuals.
What is the difference between an undertaking and bail?
An undertaking is similar to bail, in that it releases an individual from prison while allowing them to live at home with certain conditions. However, bail requires the involvement of surety, whereas an undertaking does not. When an individual is released on bail, they, or their surety, is on the hook for a certain amount of money if the accused does not follow their conditions or appear for court.
In contrast, those released on an undertaking are subject to the same terms and conditions as those under bail, but no financial penalty is imposed if they do not meet these obligations.
Consent variations, bail, and police undertakings are just a few of Ontario’s many complicated topics related to criminal law and the justice system. However, knowing these basics can help you navigate the process more effectively if you ever find yourself in a situation where consent, bail or an undertaking is necessary.
If you have any further questions about consent releases, contested bail or police undertakings, speaking with an experienced Ontario criminal lawyer like the team at KIVLaw is the best course of action. We can provide the answers and guidance you need to protect your rights and achieve the best outcome possible. Speak to a lawyer today.