Bail Review

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Superior Court Bail Review

The accused (s. 520) or the Crown (s. 521) may apply to have a superior court judge review an order of release or remand under s. 515 or 523. Sections s. 520 and 521 state in part:

Review of order
520. (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.
...
R.S., 1985, c. C-46, s. 520; R.S., 1985, c. 27 (1st Supp.), s. 86; 1994, c. 44, s. 46; 1999, c. 3, s. 31.

Review of order
521. (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(1), (2), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the prosecutor may, at any time before the trial of the charge, apply to a judge for a review of the order.
...
R.S., 1985, c. C-46, s. 521; R.S., 1985, c. 27 (1st Supp.), s. 87; 1994, c. 44, s. 47; 1999, c. 3, s. 32.


CCC

Once an application for review under s. 520 or 521 has been successful, the original bail instrument is terminated and a new order is in place. This new order cannot subsequently be reviewed under s. 520 or 521.[1]

The accused bears the onus on review under s. 520 to show cause on a balance of probabilities why the current order should be vacated.[2] This can be established by showing either an error in principle in the order or a material change in circumstances that would make it "unjust" not to vacate the order.[3]

The review power in s. 520 and 521 are a "hybrid remedy". It does not establish a "de novo proceeding" but it provides a "greater scope than an appeal".[4]

There are only three circumstances where a bail review can be vary an order:[5]

  1. where the justice has erred in law;
  2. where impugned decision was clearly inappropriate, such that "the justice ... gave excessive weight to one factor or insufficient weight to another factor". But not on the basis that the justice would have weighed the factors differently; or
  3. Where there is a material change in circumstances;

Material Change in Circumstances
In considering material changes in circumstances, the reviewing court should consider the four criteria in the Palmer fresh evidence test in a "flexible" manner to determine if new evidence for the review should be considered.[6]

The reviewing court should consider:[7]

  • due diligence
  • relevance
  • credibility
  • affect on the result

If the evidence overcomes the four criteria then the reviewing judge may review the order "as if he or she were the initial decision maker".[8]


  1. R v Smith, 2003 SKCA 8 citing R v Lahooti (1978), 38 CCC (2d) 481 (Ont.H.C.J.) and R v Saracino (1989), 47 CCC (3d) 185 (Ont.H.C.J.)
  2. R v Singh Garcha, 2004 SKQB 92 (CanLII) at para 19
  3. Garcha at para 19
  4. St-Cloud, 2015 SCC 27 (CanLII) at para 91, 92
  5. St-Cloud at para 121
  6. St-Cloud at para 128, 129
  7. St-Cloud at paras 130 to 138
  8. St-Cloud at para 138

Court of Appeal Bail Review

An accused can seek a review of the court's decision on bail under s. 680

Review by court of appeal
680. (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.

Single judge acting
(2) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court.
Enforcement of decision
(3) 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.
R.S., 1985, c. C-46, s. 680; R.S., 1985, c. 27 (1st Supp.), s. 142; 1994, c. 44, s. 68.


CCC

The test for leave to review bail requires that:[1]

  1. there is a reasonable prospect of success on review; or
  2. the court, applying the law, could possibly conclude that the application for release should have been allowed (if bail was denied).

This is a low standard.[2]

This section authorizes the court of appeal to review change in circumstances however where there is no question of error of lower courts, it is best returned to the court of first instance for review.[3]

  1. R v Uppal, 2003 BCCA 571 (CanLII) at para 17
  2. Uppal at para 17
  3. R v Kuol, 2013 ABCA 380 (CanLII)

Bail Review Where Trial is Delayed

Where a detained accused's trial has been delayed, the court must review bail.

Section 525 states:

Time for application to judge
525. (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.

...
R.S., 1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90; 1994, c. 44, s. 49; 1997, c. 18, s. 61.


CCC

The relevant offence must be one other than an offence under 469.[1]

Purpose
The purpose of s. 525 is to "is to prevent the accused from languishing for lengthy periods of time in custody and to ensure a prompt trial".[2] It should "facilitate the obtaining of bail and the review of bail applications when originally refused".[3]

The is accomplished by requiring "the Court to monitor the continued detention or the accused to ensure that he is not needlessly detained, and to ensure that there is no unreasonable delay in proceeding with the trial."[4]

The section provides "oversight of delays in the trial process even where the defence does not desire a bail review hearing".[5]

Procedure
The onus is upon the same party who had the onus that the initial bail hearing.[6]


  1. See s. 525
    Includes offences such as Homicide
  2. R v Gill, 2005 CanLII 22214 (ON SC), [2005] O.J. No. 2648 (S.C.J.) (QL), per Hill J. at para 3
  3. Gill at para 3
  4. Fraser Regional Correctional Centre v Canada (Attorney General), [1993] BCJ No. 2348 (S.C.) at para 4
  5. R v Sawrenko, 2008 YKSC 27 (CanLII), per Veale J. at para 26
  6. R v Sarkozi, 2010 BCSC 1410 (CanLII) -- review of conflicting case law on question of burden