In Toronto, bail is only granted in exceptional circumstances for those who have outstanding murder charges. In order to be considered for bail, you and your proposed sureties must meet certain conditions set out by the court. If you are unable to meet these conditions, you may be required to remain in custody until your trial. Bail is especially important for people that have been charged with murder and could have a significant impact on how their matter ultimately resolves. Its important to understand what is required for a bail hearing for murder charges.
If you or a family member has been charged with first degree murder and are considering a bail hearing its important to arranged a consultation with a defence lawyer experienced with handling murder charges. Bail hearings for people charged with a homicide are rare, but bail is granted when the Court is convinced that the accused poses a low risk to the community and that the sureties and supervision plan is of such a quality to ensure compliance with the terms of release.
What is the difference between a Homicide and a Murder?
In simple terms, the definition of homicide in Canada is the killing of one human being by another. It may refer to killings that are the results of criminal acts or that are unintentional and not of a criminal nature. Not all homicides are murder.
In Canada, any culpable homicide is murder. Simply meaning that any homicide that is blameworthy is murder. A person commits a murder (a culpable homicide) when they intentional cause the death of a human being by a criminal or unlawful act, by criminal negligence, by the threat or fear of violence or by deception.
Culpable homicide has three categories: murder, manslaughter or infanticide.
Degrees of Murder in Canada
In Canada there are several different categories and degrees murder. There is Murder, both first degree and second degree, then Manslaughter and finally Infanticide.
First Degree Murder
The most serious, is First degree murder were its alleged that the accused person planned and deliberately committed the murder. For first degree murder the murder needs to be intentional or flowing from another serious criminal offence such as hijacking, sexual assault, forcible confinement, or associated with the activity of a criminal organization, or for the causing the death of a police officer or prison employee.
Upon conviction the sentence is imprisonment for life with no parole eligibility for 25 years.
Second Degree Murder
Second degree murder is simply defined as all other homicides that are not first degree murder.
Section 233 of the criminal code defines Infanticide as the death of a newly-born child caused by its mother by a wilful act or omissionat the time of the act or omission she was not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
Then there is Manslaughter which is a culpable homicide that is not murder. that was not planned or deliberate, that was not intentional or flowing from certain criminal offences.
Requirements for Bail Hearings
Some very important considerations for murder bail hearings. These bail hearings are always conducted in the Superior Court of Justice in Ontario. It is not possible to have a bail hearing or show cause hearing in the Ontario Court of Justice for murder charges.
The quality of the proposed surety is perhaps the most important factor in a murder bail hearing. The quality of the proposed sureties can remedy other shortcomings with an accused person’s background and the supervision plan. A weak supervision plan can work with the right sureties. But poor sureties cannot make a weak supervision plan work. The sureties must be excellent and in a position to properly supervise the accused person.
The next most important factor is the proposed supervision plan or the proposed conditions of release. Any plan being proposed must be realistic for the sureties to supervise. Any plan must address the secondary ground concerns and ensure that the accused will not be able to commit any further offences while on bail OR interfere with the potential witnesses, any evidence or in general with the administration of justice.
Lastly, the quality of the sureties and the supervision plan must be able to satisfy the judge that general public, will not be offended by the accused being released on bail pending his trial.
There is a high onus for the accused and their sureties to prove at the bail hearing for murder charges.
Accused Consideration for Bail on Murder Charges.
The accused must be trusted that he can comply while released on bail. If the court has no confidence on the accused the quality of the sureties and the best supervision plan won’t matter.
Sureties Required for Murder Bail Hearing
These sureties must be of highest quality. The sureties take on the role of a “civilian jailer” and must ensure the good behaviour and compliance of the accused while released on bail. They must be able to enforce the conditions of the release order and be willing to place their property at risk believing the accused will comply with the release conditions.
They must have both the financial resources and the ability to adequately supervise an accused on serious charges. It is difficult for the court to place trust in a surety that has no financial interest at risk. To that end, they must also understand the allegations and the circumstances of the accused that they are supervising and risking their property for.
The Judge must believe that the proposed sureties will ensure the accused’s compliance with the release conditions and that they will call the police if there is a breach OR withdraw their support as a surety if they are no longer to adequately supervise the accused.
Supervision Plan while Released on Bail for Murder
The plan will most certainly involve a strict House Arrest component. That may even be further strengthened with a either 24-hour supervision by one or more sureties or even couple with GPS or electronic monitoring.
Judges Considerations During a Bail Hearing for Murder Charges.
Without exception a Superior Court Judge will always be concerned for the general welfare and safety of the public. A judge never wants to be responsible for releasing a person accused of murder that then hurts another person while on bail or poses a risk to the public in general. It is much easier for a Judge to issue a detention order than possibly risk the safety of members of the community.
Like with any bail hearing the Judge must consider the three grounds listed in the criminal code on a Murder Bail Hearing.
The Primary Ground
The Judge’s concern under the Primary Ground is that the accused will attend court as required, that they won’t flee the jurisdiction, and will actual be present for their trial. When examining the accused personal circumstances the Crown and Judge want to know if they have strong connections to the jurisdiction or there is a real risk of them fleeing.
The Secondary Ground
The Secondary Grounds focuses on the risk to safety of the community if the accused is released on bail. Will the accused continue committing offences while on bail? Will the accused interfere with the administration of justice while on release in the community? These are two of the central questions that the Judge must consider when assessing the accused, the sureties and the supervision plan.
There are a number of factors that are assessed on the secondary ground:
- the nature of the criminal offence
- the relevant circumstances of the offence
- the likelihood of conviction – the likelihood that the accused will be found guilty at trial
- the accused’s degree of participation in the murder
- the relationship between the accused and the victim
- personal circumstances of the accused – lifestyle, mental health, criminal antecedents
- prior bad conduct
- the danger and risk to community while on bail
When considering murder charges the Judge may consider that any further criminal conduct would not attract additional jail time. That given the accused is facing a life sentence there is no deterrence from committing further offences while on bail.
The tertiary ground is concerned with the maintaining the public’s confidence in the administration of the justice system. The public’s confidence is an important factor to the proper function of the criminal justice system and linked directly to the integrity of the rule of law. Judge’s are allowed to consider a non-exhaustive list of enumerated factors listed in section 515(10)(c) of the criminal code.
Specific Considerations for an Accused Facing Murder Charges
The Criminal Record of the accused will be considerable factor. The number of entries on the record, a record for violence or previous convictions for failing to comply with court orders will weigh heavily on a Judges decision on bail.
The role the accused had in the homicide will also be a significant consideration. Was the accused a party to the offence or the principle actor. A bail hearing for the principle actor would be much different than the bail hearing for a person that merely a party to the offence.
Bail Hearings are not trials. Possible defences that the accused may have that might result in an acquittal are not given the same consideration at a bail hearing, but may become persuasive on the Judge’s consideration under the secondary and tertiary ground.
The Judge is NOT hearing evidence of the trial and should not be considering if the accused is likely guilty or not. Every accused is presumed innocent at the bail hearing stage, but the judge will be interested if there is alibi evidence for example which may support an acquittal.
Experienced Criminal Defence Lawyer – Murder Bail Hearings
Being released on bail could be the single biggest factor in determining how your criminal case unfolds. Being able to meet freely with your criminal lawyer, your witnesses and the defence experts could make a difference in your defence. Being able to remain at home with your family while awaiting trial rather than being in custody could relieve much of the stress associated with the navigating the criminal justice system. However, being granted bail at the Superior Court of Justice and being released is difficult, but not unheard of.
An experienced criminal lawyer will be able to assist in assessing if bail is a realistic option for murder charges in Toronto or an unnecessary waste of money. An experienced criminal lawyer will be able to assist in determining if the proposed sureties are suitable and help develop a release plan that will satisfy the court’s concerns.
William Jaksa has become a well-respected homicide lawyer in Toronto for over 15 years. He has represented clients facing murder charges and successfully assisted with them being granted bail.