Bail Reviews

You’re a defence lawyer who has been retained by a client awaiting a bail hearing, or an Assistant Crown Attorney about to embark on your first bail hearing...Where do you start and how do you maneuver through various stages of criminal procedure?

How to conduct a bail hearing: coping with a difficult client, and dealing with conflicts of interest, specifically in domestic assault cases.

Professionalism Content - Boris Bytensky (15 minutes)

• “Conflicts of interest (these happen in domestic violence cases all the time, particularly if a bail variation is sought). It is common in domestic violence allegations that bail will include a provision that requires the accused to stay away from, and have no contact with, the complainant. In many cases (perhaps in “most”), the complainants are not happy about the provision and are willing to say or do just about anything to try to change it. It is common for me to receive calls or emails from complainants who want to “help” my client change these conditions. There is an inherent conflict of interest that arises in these situations. It is necessary to recognize that even though the complainant is looking to “help” the client, what’s best for the client isn’t necessarily best for the complainant. Care must be taken to ensure that anything that is received from the complainant is obtained after he/she has received independent legal advice and, preferably, directly from the independent legal advisor.
• Confidentiality - Sureties need to be contacted and must typically become involved in the bail process itself and the release plan. However, sharing information with the sureties is not permitted without permission of the client as it may violate solicitor client privilege. Instructions must be specific from the client to permit this disclosure. Similarly, while it is important to contact employers and to confirm employment in many bail cases, doing so without clear instructions is also problematic. Clients may not want their employers to know of their legal situation and disclosure of the same can greatly jeopardize the employment. There are many other examples of ensuring that information about the client is not disclosed to third parties without consent, even if that discourse may be “helpful” to the bail plan.
• Dealing with media and public statements - In high profile cases, there is a natural interest in the media to attempt to get some kind of comment or reaction from counsel. There are many examples of lawyers saying things that are completely inappropriate at the bail stage. One well-known example is counsel for one of the Toronto 18 telling CNN that the allegations against his client included threatening the Prime Minister. This was not information that had been made public before that interview and was obviously very prejudicial.
• Advocacy and duty not to mislead the Court - One common issue is how to deal with the situation where the Crown is not aware of the full extent of the client’s past criminality. Also, an unrelated but common issue is how to deal with a client’s “dubious” claim of employment.
• Managing difficult clients - Bail is a very stressful time where people are sometimes facing enormous pressure to get out of custody. There are jobs, childcare issues, and many other crucial factors squarely on the line. People are often willing to say and do just about anything to get out. At the same time, expectations can be very high and Crown policies may get in the way. Getting written instructions is not always possible. These are some of the topics I can cover at the lecture.”