Activist How-To: Modifying Bail Conditions

The following information and guide is based on the research and the experiences of an individual as relayed to me.  I felt it important to make public for the sake of other activists.  Clearly some of the specific information (e.g. room locations) will change by region but the essentials will remain.

We have recently seen an upswing in the persecution and attempted political repression of activists by police.  In this time of the increased criminalization of dissent we sometimes find ourselves released from the police or courts with unreasonable release or bail conditions.  It’s important to know how to counter them if you intend to represent yourself.

When the police, JP or judge assign bail or release conditions, they typically consider things like whether a particular condition is likely to prevent

1. an additional offence

2. a threat to public safety or

3. risk to any current investigation or

4. impact whether you will attend future court dates

They are NOT supposed to be punitary, excessive or repressive.  If you feel any of your conditions are contrary to these guidelines you probably have reasonable grounds to contest them.

Additionally, the police and courts aren’t allowed to set you up to breach your conditions.  In other words – they can’t set conditions knowing or reasonably expecting that you are going to breach them. If you live with a partner, for example, they can’t give you a non-association condition with them and send you home to that address.

While they may pretend, the courts really don’t give a shit about your Charter Rights. They are absolutely willing to restrict them “in accordance with fundamental justice”, so ultimately when it comes to using them as a central argument for a bail variance they mean nothing.

That said, some other reasons bail variations will be considered are:

Non-Associations

• If you live, work, attend school or cultural/ceremonial reasons with an individual they are trying to give you non-associations with, or if you need to associate with individuals in order to prepare a legal defence for a “fair and reasonable” trial.

Limiting Areas

• If you live, work, attend school or have other specific business in an area they are trying to keep you from

Curfew

• If you work evenings, midnights or have other specific “productive” reasons a curfew would be inappropriate

Some Key Phrases or Ideas Meant as Inspiration:

“…these restrictions are an unreasonable restriction of my fundamental freedoms under the Canadian Charter…”

“…are disproportionate to the alleged offence of mischief and are acting as punitive by…”

“…are so widely cast that they inadvertently set me up to breach by…”

“This condition does not further protect the public or alleged victims nor do they alter whether I am likely to re-offend or attend court…”

The How-To

This is based on  the experience of an individual within the city of Hamilton, Ontario, so the steps or expectations may change slightly depending on the area you are in BUT the essentials should be the same (e.g. getting the form from the Crown Attorney’s Office etc.)

There are TWO ways to have your bail conditions altered:

1. With the consent of the crown attorney – the easiest and cheapest way or,

2. Challenging them in Superior Court (where you must prove an error of law)

Baby Steps

1. Get a “Variation of Bail by Consent” Form from the Crown Attorney’s Office. In Hamilton, this office is located on the 4th floor in room 441 – go left off the main elevators, take your first hallway left and then follow the labyrinth of hallways until you come to some particularly ugly brass doors. Go through them & past the elevators: the CA’s office is straight ahead.

2. Fill out the form as best you can. If you were released on a PTA check (a) Undertaking and (a) Consent

3. Do some research. Prepare a good argument and write/print it out. Attach it to the application and in the “comments” section write “see attached”. Also attach any “appendixes” you are referring to – for example the list of non-associations you are trying to alter.

4. On the day of your first appearance

   1. Bring: you application complete with reasons and appendixes AND your original undertaking for reference.

   2. See duty counsel if you’re going to use them. Tell them you are also applying for a bail variation. They probably won’t be able/willing to help you and may even be discouraging. DON’T let this get to you! Let them know you will be filing an application today anyways – keep them in the loop.  (Duty counsel may tell you to go to counters 1 or 2 for more info, or the filing room way on the other side of the court. this isn't necessary - just see the prosecutor first).

   3. Wait in line to see the prosecutor, before entering the court. The prosecutor will take over the anteroom 100(c) after the duty counsel lineup is mostly gone, probably around 9am.  It could be a long wait – lawyers seem to get to push to the head of the line.

   4. When you get to see the prosecutor they may or may not have your file. If they don’t, you will probably have to get it before he/she will proceed with your application, probably from the file clerk in the court room. If the file clerk doesn’t have it, you will have to go upstairs to the crown attorney’s office (441, in Hamilton) and have it brought down to the file clerk, then retrieve it and take it to the prosecutor. It’s a pain in the ass and frustrating, just like the rest of the legal system.

   5. Once you have your file and application in hand you get to wait to see the prosecutor again. Be ready to advocate and negotiate for yourself and have clear reasons why a variation is required. They will either; approve your request, approve a variation of your request, deny you or tell you they need time to review things with the other crown attorney/review court transcripts etc.

   6. If you are successful, you should get your finished/signed application back. Update duty counsel if you are using them, and/or bring this into court with you and have it entered into the record when you are called up if you are self-representing. The form does not need the JP’s approval.

   7. You may have to file the application yourself (the prosecutor will tell you this) or the court may file it as you enter it into the record and provide you a copy. KEEP that copy!

   8. Celebrate by hugging people you haven’t been able to hug (assuming they were also successful!) or by going into areas you weren’t allowed and proudly declaring your freedom.