Bail

 

Bail and Bail Review Procedures in Canada

 

Lawrence D. Myers Q.C.

Zack Myers

&

Matthew Fingas

 

Table of Contents 

Introduction …………………………………………… Page 1

Bail Overview – Pathways to Freedom…………….. Page 2

Police Forms of Release ……………………………. Page 3

Bail Proceedings …………………………………….. Page 5

The Bail Hearing …………………………………….. Page 5

Exceptions in Bail Hearings ……………………….. Page 10

Bail Review Diagram ………………………………. Page 13

Bail Review by the Crown …………………………. Page 14

Bail Review by the Defence ……………………….. Page 15

Bail Review after a preliminary hearing …………… Page 19

The Venue on a Bail Review ……………………….. Page 20

 

Introduction

 

The term bail refers to the to the release (or detention) of a person charged with a criminal offence prior to being tried in court or sentenced. Bail is a critical component of a criminal case that not only affects an accused person’s psychological, financial, and social well-being, but ultimately does impact the outcome of their criminal trial.[1]

Our Canadian parliament has recognized the importance of bail to an individual’s liberty and has enshrined the Constitutionally protected rights to be presumed innocent until proven guilty and not to be denied reasonable bail without just cause.[2] These rights emphasize and protect individuals from unnecessary detention that can have significant consequences for the accused and their families.

 

This paper aims to examine bail processes the Canadian justice system in two parts:

 

1) What are the legal procedures involved in a release on bail when someone is charged with a criminal offence?

 

2) When someone is not granted bail and is detained, what are the avenues to review the detention order?

 

 

PATHWAYS TO RELEASE ON BAIL

 

Bail Procedures and Forms of Release

 

  1. Police Forms of Release

Police officers have many of the options Crown counsel does as forms of release and also under section 516 of the criminal code to seek an adjournment. Understanding these sections and advocating for your client with the peace officer may avoid unwanted time in custody for your client. Advocating with the relevant forms of release in mind helps provide a concrete structure for your advocacy:

 

  1.  (1) Arrest without a Warrant

The police officer may release by way of summons or issuing an appearance notice.

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

 

  1.  (1) Release by another Peace Officer

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or

(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

 

  1.  (1) Where a person who has been arrested with a warrant by a peace officer is taken into custody for an offence other than one mentioned in section 522, the officer in charge may, if the warrant has been endorsed by a justice under subsection 507(6),

(a) release the person on the person’s giving a promise to appear;

(b) release the person on the person’s entering into a recognizance ….

 

Summary:

Essentially, the police have the authority to release an accused with:

a)    Summons – Sets out the offence being charged, requires the accused to attend court

b)    PTA – Sets out the offence being charged, requires the accused to promise to attend a court appearance

c)    Recognizance – Sets out offence, requires accused to attend court on scheduled dates, and also sets out other conditions (i.e. keep the peace and be of good behavior; abstain from contact with a certain person, abstain from going to a place or requirement to stay in jurisdiction; surrender passport; or, may involve a cash deposit or surety).

d)    Undertaking – Sets out offence, requires the accused to attend court, sets out conditions similar to a recognizance, but importantly, breaching an undertaking is an offence punishable by summary or indictment (s.145 (5.1)).

 

When released by the police by way of one these methods, the accused does not go before a Judge or Justice of the Peace for a bail proceeding.

 

  1. Bail Proceedings

 

If an accused is not released by the Police under one of the aforementioned methods the Criminal Code provisions regarding bail are engaged. The starting point is s.503 of the Criminal Code:

 

Notable Points:

 

Subsection (1) (a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and

 

(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible, unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,

 

 

______

 

The common practice in British Colombia is for the arrested party to be moved to a courthouse and go in front of a Judge, where practicable, for the purposes of a bail hearing. In the case of arrests that take place early in the day or on weekends, the arrested party may be taken before a Justice of the Peace, often by way of a video court during the evening hours, or on weekends for the purposes of a bail hearing.

 

 

Relevant factors to take in to consideration are the parties playing a role in this form of release. Often an under utilized but encouraged practice is to request the officer to allege the circumstances before you decide to proceed with the hearing. Often Justices will allow for this, given that you do not have particulars or other forms of information usually at your disposal in a courtroom bail hearing.

 

Upon hearing submissions from the officer, who plays the role of crown counsel during the hearing, you may change your position on proceeding with the hearing. Often the strength of the crown’s case may be weaker at the time of this hearing given the limited amount of time that has been given to collect information. It may be encourage able in certain circumstances before other relevant evidence related to the strength of the crown’s case might be brought forward at a later hearing.

 

Other practice directives that are important to save unwanted court appearances include:

 

  • Having your client appear at their next appearance by video to avoid an unwanted trip for an adjournment in court.

 

  • Adjourning your client to a desirable date when you will have the appropriate materials and information to proceed, instead of the next available date in your calendar.

 

Judicial Interim Release (A Bail Hearing)

Criminal Code Provisions:

 

  1.  (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified…

Release on undertaking with conditions, etc.


 

(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released

 

(a) on his giving an undertaking with such conditions as the justice directs;

(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or

 

Summary:

The bail hearing is often referred to as a ‘Show Cause’ Hearing as in most circumstances, s.515 (1) places to the onus on the Crown to show cause why the accused should be detained in custody.

The onus being on the Crown to show cause why the accused should be detained in custody stems from several provisions in the Canadian Charter of Rights and Freedoms[3] such as:

 

Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.

Section 11 (d) and (e): Any person charged with an offence has the right:

(dto be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(enot to be denied reasonable bail without just cause;

 

These points are often overlooked in submissions as they might be seen as, “stating the obvious”. However, these are fundamental rights that should be addressed and considered in relation to any charge and the facts before the court.

 

Often in provincial court authorities are not referred to, however having some statements and quotations from relevant case law at your disposal allow for concise submissions. For example the following sentiment expressed by Justice Barr in R. v. Haidu (1984) 14 C.C.C. (3d) 563, at p. 570 remains relevant to any bail proceeding:

“Imprisonment prior to trial should be the last resort, and, in my view, that is the spirit of the bail legislation.”

 

This amongst other quotations from relevant decisions on a bail precedent you keep within arms reach may help focus your submissions. It is often a comment from the bench that they wish to hear information related to a consideration for release. Addressing other irrelevant information about your client’s background or circumstance may detract from other able submissions you are submitting. Applying the facts of your case to the law on bail in a legal analysis is critical to bail proceedings.

 

The Basics of a Bail Hearing

 

Section 515(10) of the Code sets out the grounds on which denial of bail to an accused may be justified:

 

515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

__________

 

These 3 enumerated grounds for detention are referred to as the:

a)    Primary ground (essentially pertains to the risk the accused will flee the jurisdiction)

b)    Secondary Ground (Substantial likelihood of re-offense or interference with administration of justice

c)    Tertiary Ground (exceptional circumstance where the alleged crime is so heinous, detention is necessary so the public will maintain confidence in the administration of justice.
Grounds to have an Accused Detained

 

A)   The Primary Ground

The accused may be detained where their detention is necessary to ensure their attendance in court.

In determining whether an accused will be detained on the primary ground, a Justice may consider the following factors (not an exhaustive list):

i)               Whether the accused has failed to attend court or has failed to meet reporting conditions in the past

ii)              The nature of the offence especially as it pertains to offences related to identity theft or drug related crimes

iii)             The ties that a particular accused has to the jurisdiction in question (family roots)

iv)            Whether the accused evaded authorities prior to their arrest

 

Many primary ground considerations can be alleviated by providing submissions on the accused circumstances in relation to personal stability including:

  • Do they have a regular point of contact for counsel (Re: telephone)
  • Do they have a stable residence
  • Has their been a change in circumstance for primary ground consideration from previous circumstances alleged by the crown that are related to previous issues.

 

Generally, it is difficult to prove an accused is a flight risk, and the defence may point to mitigating factors listed below to alleviate the concerns that the accused is a flight risk[4]:

i)               Anything that demonstrates that the accused has ties to the jurisdiction

ii)              The surrender of a passport and anything else that would aid an accused in flight

iii)             Any health concerns of the accused

iv)            Anything that shows responsibility and accountability on the part of the accused

v)             Past compliance with court orders or reporting conditions

vi)            A surety that will help ensure compliance with a bail order

 

B) The Secondary Ground

 

The Secondary ground is the most common ground cited in a ‘show cause’ hearing and states that the accused may be detained if the detention is necessary for the protection or safety of the public, where there is a substantial likelihood the accused will reoffend.

The constitutionality of the secondary ground was examined in the case of R.v Morales[5] and reviewed more recently in R. v. Bhullar, where the court stated,

 

“I am satisfied that the scope of the public safety component of s. 515(10)(b) is sufficiently narrow to satisfy the first requirement under s. 11(e). Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. Such grounds are sufficiently narrow to fulfil the first requirement of just cause under s. 11(e).[6]

 

Applying the circumstances of your case or your clients criminal record to this particular statement bears great significance on submissions before the court. Examining the offence and previous record in relation to the public safety component while still bearing in mind your clients constitutional rights provide for effective points of submissions before the court.

 

For example submissions that much of your clients record or the particular offence do not meet a threshold for their to be a concern for public safety, should often be considered.

 

The secondary ground for detention was also summarized in R. v. Abdel-Rahman where the court stated,

 

First, that there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he is released; Second, that this risk is of such magnitude that it amounts to a “substantial likelihood; “Third, that the said risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused is released; and Fourth, that the detention of the accused is “necessary,” because the identified danger to public safety cannot be prevented or reduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties or cash bail) [7]

 

Secondary ground concerns frequently arise where the accused has a recent and substantial criminal record. To alleviate concerns that an accused is a safety risk to the public, or that the public (or their property) needs protection from the accused, the defence counsel can formulate a number of release plans tailored to alleviate the concerns of the Judge or Justice of the Peace. For example, if the root cause of the past offences relates to drug addiction, the accused can be sent to a recovery or treatment center where they can be closely monitored. Sureties and Cash deposits can be another significant and convincing motivator to prohibit the accused from reoffending.

A material change in your clients personal circumstances that provide a different lens for examining the appropriateness of a release plan may be a tool to dismiss concerns over previous breaches of undertaking or court orders.

 

C)   The Tertiary Ground

 

The Tertiary ground will only be engaged to deny an accused of bail in exceptional circumstances where a reasonable member of the community would be satisfied that denial is necessary to maintain public confidence in the administration of justice.

The reasonable person making this assessment must be one properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of the case. Additionally, for the tertiary ground to apply, the strength of the Crown’s case should be overwhelming.

Mr. Justice Romilly noted in the case of R. v. Aulakh 2003 BCSC 740 at para. 38 that public confidence in the administration of justice must be considered in light of the presumption of innocence. Also, the assessment of public confidence in relation to the pre-trial release or detention of the accused must be made in relation to an informed and reasonable public, and not according to public opinion or according to a general expectation that persons charged with very serious offences will always be detained pending trial. In most cases, public confidence will be enhanced by the pre-trial release of an accused who is not required to be detained on the primary or secondary ground, and only in relatively rare cases will detention be required on the tertiary ground.[8]

Section 515(10)(c) says that a court must consider, “all the circumstances”, including the four enumerated factors. Therefore, the analysis of the tertiary ground cannot possibly begin and end with the four enumerated factors. That is, the legislation itself contemplates an analysis of factors other than the four enumerated factors.[9]

This approach to the tertiary ground is further supported by the Ontario Court of Appeal decision in R. v. R.D. [2010] O.J. No. 6111. Justice Rosenberg, writing for the Court of Appeal, wrote at paragraph 54 of that decision as follows:

 

The grounds enumerated in s.515(10)(c) do not exhaust the factors the court must consider where the Crown seeks to rely upon the tertiary ground. That paragraph directs the court to consider “all the circumstances” including the enumerated factors. All the circumstances may, in appropriate cases, include the personal circumstances of the accused. Public perception about a bail decision cannot help but be influenced by whether, for example, the accused is a mature adult with a serious record, as against a young person with no prior record.

The necessity of analyzing public sentiment regarding bail from the perspective of reasonable, informed persons was outlined in R. v. Lamothe (1990), 58 C.C.C. (3d) 530 (Que. C.A.) at pp. 541-42 where Beaudouin J.A. held:

An informed public must understand that the existence of the presumption of innocence at all stages of the criminal process is not a purely theoretical notion, but a concrete reality and that, despite what may happen, in its perception, for certain inconveniences with respect to effectiveness in the repression of crime, it is the price that must be paid for life in a free and democratic society. Therefore, the perception of the public must be situated at another level, that of a public reasonably informed about our system of criminal law and capable of judging and perceiving without emotion that the application of the presumption of innocence, even with respect to interim release, has the effect that people, who may later be found guilty of even serious crimes, will be released for the period between the time of their arrest and the time of their trial. In other words, the criterion of the public perception must not be that of the lowest common denominator. An informed public understands that there exists in Canada a constitutionally guaranteed presumption of innocence (s. 11(d) of the Charter) and the right not to be denied reasonable bail without just cause (s. 11(e) of the Charter). [emphasis in original]

_______

 

The standard of evidence in a bail hearing is trustworthy and credible, and can include hearsay. This can include a summary of the alleged offence and any witness statements. The court is allowed to consider other offences the accused has been charged with but is still awaiting trial for.

 

Interestingly much of the narrative that is outlined in a report to crown counsel is not supported by the supplementary evidence, police officer notes, or other reliable information that should be before the court. Turning your mind to the law of evidence will often lead you down a path to weakening the crowns case.

 

From a defence perspective, collecting information to support your submissions such as personal, work, and residence related references provide strength for the support of your claims before a justice.

 

Collecting statements from witnesses or other related parties is a relevant consideration as well.

 

Exceptions in Bail Hearings

 

A)   A s.516(1) Application for an adjournment

 

  1.  (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.

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Under s.516 (1), either the Crown or defence may apply to adjourn the proceedings and remand the accused in custody in prison. No adjournment can be for more than 3 days without the consent of the accused to remain in custody.

 

In practice this can occur for many reasons including:

  • the seriousness or complexity of the offence and the need for further preparation than afforded by the s.503 24 hour requirement.
  • where an accused is taken into custody in one jurisdiction on a warrant originating from anther jurisdiction.

 

B)    Reverse onus situations

 

i)               As stated in section 515 (1), where the accused is charged with an offence listed in s.469 of the Code, which include:

–       section 47 (treason)

–       section 49 (alarming Her Majesty)

–       section 51 (intimidating Parliament or a legislature)

–       section 53 (inciting to mutiny)

–       section 61 (seditious offences)

–       section 74 (piracy)

–       section 75 (piratical acts), or

–       section 235 (murder)

The accused will be place in a reverse onus situation where the onus will be on them to satisfy the Justice why they should not be detained.

 

When an accused is charged with an offence listed in s.469 of the criminal code, s.522 is also engaged, which states that the accused may only be released on bail by or detained by a Superior Court Judge.

ii)              Section 515 (6) also sets out conditions for which the onus is reversed, and the accused must show why they should not be detained which include the following:

 

515 (6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged

(a) with an indictable offence, other than an offence listed in section 469,

(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,

(ii) that is an offence under section 467.11, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization,

…..

 

(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);

(b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada,

(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816, or

(d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.

 

Acknowledging a change in circumstance from a previous release plan or the strength of the crown’s case are highly warranted here. In relation to the more serious listed offences where the crown alleges a reverse onus but may have difficulties proving the allegations because of a lack of evidence to support the charge put forward may change the perspective of a justice.

 

For example, submissions while their may be strength for a crown case the information related to the charge that puts your client in a reverse onus is relatively weak; taking it outside of the normal realm of other reverse onus situations is useful information to put before the court. For example could the prohibited or restricted weapon be mistaken for another object or imitation, or are the circumstances of an offence committed under the controlled drugs and substances act supported or does other relevant information make it more likely that a lesser included offence; what is the proper definition of the act in question ?

 

 

Part 2: Bail Review Procedures

Whether an accused is released or detained following bail proceedings, this is not the end of the story. Both the Crown and the Defence have avenues of review should they wish to revisit an order of release or detention.

 

A)   Bail Review by the Crown after an accused is released

 

i)               Crown s. 524 Right to Revisit Bail

Section 524 of the Code is engaged when there are reasonable grounds to believe that an accused has violated one or more of their bail conditions, or when the accused has committed a further indictable offence while released on such conditions. As a result, they must be brought before a judge and the onus is reversed so that the accused must show cause why their detention is not necessary based on the grounds enumerated in s.515 (10).

 

  1.  (1) Where a justice is satisfied that there are reasonable grounds to believe that an accused

(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or

(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he may issue a warrant for the arrest of the accused.

 

Hearing


(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall

(a) where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or

(b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.

Retention of accused


(4) Where an accused described in paragraph (3)(a) is taken before a judge and the judge finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or

(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10)

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ii)             Crown Supreme Court Bail Review s. 521

Where a Justice makes an order for the release of an accused under s.515, the Crown has the right of review under s.521. On a bail review the onus is on the appellant to show that the judge who fixed the original bail made an error in law or principle, that circumstances have changed, or that it would be unjust not to order release of the accused.[10]

 

  1.  (2) An application under this section shall not be heard by a judge unless the prosecutor has given to the accused at least two clear days notice in writing of the application.

 

A)   Defence review after an accused is detained

 

On a bail review the onus is on the appellant to show that the judge who fixed the original bail made an error in law or principle, that circumstances have changed, or that it would be unjust not to order release.[11]

The accused also can bring an application for certiorari to quash a bail order.[12] This procedure permits a further appeal to the Court of Appeal.

 

I) Bail review by the defence under s. 520 or 522 of the Code

Much like the Crown’s avenue for revue under s.521, the defence may apply for a review under either s.520 or s.522 of the Code, depending on the nature of the offence.

S.520 Bail Review

  1.  (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.

 

Note: In the Code, Justice is defined as a Justice of the Peace or a Provincial Court Judge. A bail review under s.520 must be performed by a Judge, and the applicant must give the prosecution 2 days notice (unless they consent to less notice).   There is also a limitation under s.520 (8), that once a bail review under s. 520 takes place, another review cannot occur for 30 days. Other than the 2 days notice requirement and the limitation mentioned above, a s.520 bail review can occur at any time while an accused is detained on a s.515 order.

 

Under s. 520 (7) (e), if the accused shows cause why they should not be detained, the presiding Judge has authority to vacate the previous bail order and make any order under s.515 that he/she deems appropriate.

 

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S.522 Bail Review under s.680 of the Code

 

So, Under s. 522(2), the applicant has the burden of demonstrating that their detention is not justified under s. 515(10) because of the serious nature of the offence with which they are charged.

 

As stated in s. 522 (4), any review of a s.522 detention order is conducted pursuant to s. 680, which provides:

 

  1.  (1) A decision made by a judge under section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision,

(a) vary the decision; or

(b) substitute such other decision as, in its opinion, should have been made.

(c) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court.

(d) A decision as varied or substituted under this section shall have effect and may be enforced in all respects as though it were the decision originally made.

 

The nature of a review under s. 680 of the Code was described by Cumming J.A. for the Court in R. v. Wu (1998), 117 B.C.A.C. 305 at 307:

 

[6] A review under s. 680(1) of the Criminal Code is in the nature of an appeal on the record and not a hearing de novo. While the reviewing court exercises an independent discretion and may substitute its own opinion for that of a single judge under review, it must base its review on the facts found by the single judge’s evaluation of the evidence. It is not necessary that a reviewing court, before intervening, come to a conclusion that the decision of the single judge under review was unreasonable or that an error in principle was committed. See R. v. D.S.H. (1991), 2 B.C.A.C. 309.

 

“In my view, a bail review, whether it is pursuant to Section 520 or Section 521, is not an appeal and it is not a trial de novo. Rather, it is a review. As the reviewing judge, I should consider a wide variety of factors, including the evidence presented at the original bail hearing; any changes in the circumstances since the bail hearing; the reasoning of the justice of the peace, including any findings of fact or credibility; any errors of fact or law made by the justice of the peace; and, the legislation and the principles that apply to judicial release prior to trial. In that respect, I agree with the comments made by Justice Salhaney in the case of R. v. McCue [1998] O.J. No. 4384, at paragraph 5. I also agree with the comments made by Gary T. Trotter, in his book “The Law of Bail in Canada, Second Edition”, at page 312.

I accept that in certain cases where a justice of the peace has made a significant error, or errors, a bail review may in fact become a trial de novo, but this is not one of those cases.”[13]

 

It is important to note that a bail review for a s.522 detention order occurs under s.680 of the Code, and this review must take place in the Court of Appeal.

 

 

ii) Review of Detention where Trial Delayed (30-day and 90-day Bail Review)

 

When an accused has been in custody for 90 days in the case of a non-section 469 indictable offence, or for 30 days in the case of a summary conviction offence, the accused may apply to a judge under s. 525 for a delayed trial hearing.

The Court of Appeal considered the consequence of failing to request a delayed trial in R. v. Johnson, [1993] B.C.D. Crim. Conv. 5150-01. In response to a habeas corpus application, the chambers judge released the accused from custody immediately upon learning that he had not had his 90-day review. However, the Court of Appeal held that the appropriate procedure is for the judge to order that the accused have a bail hearing forthwith. Pending that review, the accused should remain in custody. The decision prevents the release of potentially dangerous individuals due to administrative errors by correctional authorities.

An accused remains entitled to a 90-day bail review under s. 525 even after the accused has applied for and received a review of his or her detention in Supreme Court under s. 520 of the Criminal Code (R. v. Burton (1993), 84 C.C.C. (3d) 311). The resulting unlawful detention of an accused does not however lead automatically to his or her release, but rather to an order for continued detention until a judge has held the appropriate review hearing.

 

  1.  (1) Where an accused who has been charged with an offence other than an offence listed in section 469 and who is not required to be detained in custody in respect of any other matter is being detained in custody pending his trial for that offence and the trial has not commenced

 

(a) in the case of an indictable offence, within ninety days from

 

(i) the day on which the accused was taken before a justice

under section 503, or

 

(ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision, or

 

(b) in the case of an offence for which the accused is being prosecuted in proceedings by way of summary conviction, within thirty days from

 

(i) the day on which the accused was taken before a justice under subsection 503(1), or

 

(ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision,the person having the custody of the accused shall, forthwith on the expiration of those ninety or thirty days, as the case may be, apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody.

In English, the latest decision for a detention order is the date your time begins running before an opportunity for a review.

______

 

 

THE ONUS ON A DETENTION REVIEW

 

The applicant has the onus of establishing that:

 

1.There has been a material change in circumstances since the first hearing,

2.The Justice of the Peace erred in principle,

3.The Justice of the Peace erred in law, or

4.The Justice of the Peace misapprehended material evidence.

 

If one or more of those factors are established by the applicant, the reviewing court can examine the issue of bail afresh as a de novo hearing, without deference to the reasons of the Justice of the Peace or the Judge who presided over the initial bail hearing.

 

DELAY IN BAIL PROCEEDINGS

 

Interestingly in R. v. S.B. [2014] O.J. No. 3238 a recent decision in Ontario The delay of 12 days before the appellant, who had no prior record, could have his bail hearing was properly found by the trial judge to violate the Charter. The Trial Judge found the Crown’s conduct was offensive to the notions of fair play and decency and proceeding with the trial was harmful to the integrity of the justice system because the adjournment was made on the basis that long bail hearings required a special appointment, the Crown did not ensure a guns and gangs Crown was available and the Crown’s conduct failed to take into consideration the need, especially for a young person, for an early bail hearing. There appeared to be no alternate remedy available. On appeal the court rulesd the trial judge made no error in his balancing of the interests in favor of granting a stay against the interests in having the matter determined on the merits. He considered all of the relevant factors and correctly treated as important factors the seriousness of the charges and the interest in having them disposed of on the merits.

 

iii)            Bail Review after a preliminary hearing

 

After a judge orders a person to stand trial, he may also review any detention orders or conditions of release. (s. 523(2)(b))

  • A review under s. 680 is a review of the record, not a consideration of the application de novo

 

523 (2) Despite subsections (1) to (1.2),

 

(a) the court, judge or justice before which or whom an accused is being tried, at any time,

(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469, or

(c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time

(i) where the accused is charged with an offence other than an offence listed in section 469, the justice by whom an order was made under this Part or any other justice,

(ii) where the accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or

(iii) the court, judge or justice before which or whom an accused is to be tried, may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.

 

After hearing of evidence at a preliminary inquiry there are often grounds to revisit bail on the basis of a change in the strength of the crown’s case. Revisiting bail conditions based on the hearing of this evidence coupled with the accused compliance with their bail order and the prospects of dates for trial being far into the future may allow for changing in conditions that could be of substantial benefit to your client.

 

 

 

Venues of a Bail Review

 

As a starting point, most bail hearings occur in the jurisdiction if the Provincial Court, except for those offences listed in s.469, whereby the Code mandates that the bail hearing occur in a Superior Court.

A application to review a Court order related to bail (Judicial Interim Release) under sections 520, 521, or 525 must occur in Superior Court.

If the original order was made in Provincial Court, the venue for review will be the Supreme Court.   Where the original bail order was made in Supreme Court, the review may take place in either Supreme Court (again), or in the Court of Appeal.

Bail review under s.522 occurs under s.680 of the Code, which states that the review must occur in the Court of Appeal.

 

Sources Referred to:

[1] Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (1965), at p. 172:

[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

 

[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[4] R. v. Parsons 2007 BCSC 48

[5] R. v. Morales 1992 SCC

[6] R. v. Bhullar [2005] B.C.J. No. 1762

[7] R. v. Abdel-Rahman [2010] B.C.J. No. 238 at para 23.

[8] R. v. Aulakh 2003 BCSC 740

[9] R. v. McLean [2011] O.J. No. 6493 at para 12.

[10] R. v. Vukelich (1993), 32 B.C.A.C. 81

[11] R. v. Vukelich (1993), 32 B.C.A.C. 81

[12] Re Keenan v. The Queen (1979), 57 C.C.C. (2d) 267 (Que. C.A.)

[13] R. v. McLean [2011] O.J. No. 6493 at paras 5-6.