A Foreign National charged with a criminal offence is often in a uniquely difficult situation. In order to be released, they must successfully proceed through two release hearings.
The first is a bail hearing in the criminal justice system. This is usually before a justice of the peace. The justice of the peace must be satisfied that first the person will return to court when required to so. Secondly, the Justice of the Peace must be satisfied that the person will abide by all of the terms and conditions set for their release and not commit any further criminal offences. Normally the Crown Attorney has the onus of showing why the person should be detained; however, if the person has outstanding charges or is not ordinarily resident in Ontario, the onus is reversed and the person must show the court why they should be released.
Once released by the court, the second hearing is a detention review before a member of the Immigration & Refugee Board, Immigration Division. For practical purposes, the hearing proceeds as a reverse-onus hearing. If the detained person is charged with an offence as specified in the Immigration & Refugee Protection Regulations (such as sexual assault), the person is not eligible for release. If the person is not released, their case will proceed through the criminal court as if the person were out of custody. The court will not usually consider any time that the person in detention as credit for their criminal offences in the event they are found guilty.
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case. |
