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 that was made under s. 515 or 523.

Accused

Review of order

520. (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2) [Release on undertaking with conditions, etc.], (5) [Detention in custody], (6) [ Order of detention], (7) [Order of release], (8) [release on undertaking or recognizance, non-resident] or (12) [Order re no communication] 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.

Notice to prosecutor

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

Accused to be present

(3) If the judge so orders or the prosecutor or the accused or his counsel so requests, the accused shall be present at the hearing of an application under this section and, where the accused is in custody, the judge may order, in writing, the person having the custody of the accused to bring him before the court.

Adjournment of proceedings

(4) A judge may, before or at any time during the hearing of an application under this section, on application by the prosecutor or the accused, adjourn the proceedings, but if the accused is in custody no adjournment shall be for more than three clear days except with the consent of the accused.

Failure of accused to attend

(5) Where an accused, other than an accused who is in custody, has been ordered by a judge to be present at the hearing of an application under this section and does not attend the hearing, the judge may issue a warrant for the arrest of the accused.

Execution

(6) A warrant issued under subsection (5) may be executed anywhere in Canada.

Evidence and powers of judge on review

(7) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,
(b) the exhibits, if any, filed in the proceedings before the justice, and
(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,

and shall either

(d) dismiss the application, or
(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.
Limitation of further applications

(8) Where an application under this section or section 521 has been heard, a further or other application under this section or section 521 shall not be made with respect to that same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application.

Application of sections 517, 518 and 519

(9) The provisions of sections 517, 518 and 519 apply with such modifications as the circumstances require in respect of an application under this section.
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.


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Burden

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.[1] 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.[2]

Crown

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.

Notice to accused

(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.

Accused to be present

(3) If the judge so orders or the prosecutor or the accused or his counsel so requests, the accused shall be present at the hearing of an application under this section and, where the accused is in custody, the judge may order, in writing, the person having the custody of the accused to bring him before the court.

Adjournment of proceedings

(4) A judge may, before or at any time during the hearing of an application under this section, on application of the prosecutor or the accused, adjourn the proceedings, but if the accused is in custody no adjournment shall be for more than three clear days except with the consent of the accused.

Failure of accused to attend

(5) Where an accused, other than an accused who is in custody, has been ordered by a judge to be present at the hearing of an application under this section and does not attend the hearing, the judge may issue a warrant for the arrest of the accused.

Warrant for detention

(6) Where, pursuant to paragraph (8)(e), the judge makes an order that the accused be detained in custody until he is dealt with according to law, he shall, if the accused is not in custody, issue a warrant for the committal of the accused.

Execution

(7) A warrant issued under subsection (5) or (6) may be executed anywhere in Canada.

Evidence and powers of judge on review

(8) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,
(b) the exhibits, if any, filed in the proceedings before the justice, and
(c) such additional evidence or exhibits as may be tendered by the prosecutor or the accused,

and shall either

(d) dismiss the application, or
(e) if the prosecutor shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers to be warranted.
Limitation of further applications

(9) Where an application under this section or section 520 has been heard, a further or other application under this section or section 520 shall not be made with respect to the same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application.

Application of sections 517, 518 and 519

(10) The provisions of sections 517, 518 and 519 apply with such modifications as the circumstances require in respect of an application under this section.
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. R.S., 1985, c. 27 (1st Supp.), s. 88; 1991, c. 40, s. 32; 1994, c. 44, s. 48; 1999, c. 25, s. 10(Preamble).


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  1. R v Singh Garcha, 2004 SKQB 92 (CanLII), per Wilkinson J, at para 19
  2. Garcha, ibid., at para 19

Consequence of Review

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]

Type of Review

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".[2]

Requirements for Variation

There are only three circumstances where a bail review can vary an order:[3]

  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;

The reviewing court should consider:[4]

  • 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".[5]

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]

Important to the assessment of "material change in circumstances" "depends on the actual considerations that underpinned the first bail judge's refusal of bail".[7]

  1. R v Smith, 2003 SKCA 8 (CanLII), per curiam citing R v Lahooti (1978), 38 CCC (2d) 481 (Ont.H.C.J.), 1978 CanLII 2377 (ON SC), per Reid J
    R v Saracino (1989), 47 CCC (3d) 185 (Ont.H.C.J.), 1989 CanLII 7197 (ON SC), per Doherty J
  2. R v St-Cloud, 2015 SCC 27 (CanLII), per Wagner J, at paras 91, 92
  3. St-Cloud, ibid., at para 121
  4. St-Cloud, ibid., at paras 130 to 138
  5. St-Cloud, ibid., at para 138
  6. St-Cloud, ibid., at paras 128, 129
  7. R v Whyte, 2014 ONCA 268 (CanLII), per Tulloch JA, at para 26

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 320.25 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; 2018, c. 21, s. 22.


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), per Finch CJ, at para 17
  2. Uppal, ibid., at para 17
  3. R v Kuol, 2013 ABCA 380 (CanLII), per curiam

Bail Review Where Trial is Delayed