Revoking, Terminating, or Replacing Bail or Remand Orders

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General Principles

Where the accused is out of custody on pending charges, either by virtue of an appearance notice, promise to appear, summons, undertaking or recognizance, the court may order the accused to be taken into custody after trial.(s. 523)

The "duration of any release order ... is governed by s. 523."[1]

Duration of Release Mechanisms

Period for which appearance notice, etc., continues in force

523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)], the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3) [release of accused on s. 469 offences], until his trial is completed; or
(b) in any other case,
(i) until his trial is completed, and
(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 [Pt. XXI — appeals — definitions] is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.


[omitted (1.1), (1.2), (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) added]

CCC


Note up: 523(1)

Section 469 Offences

Under s. 523(1), release granted under s. 522(3), including s. 469 offences, only lasts until the trial is complete.[1] The judge had no discretion to continue bail.[2]

  1. R v Wright, 2010 ABQB 83 (CanLII), per Veit J, at paras 5, 7
  2. Wright, ibid., at para 8

Consequence of New Information or Indictment Charging Same Offence(s)

523
[omitted (1)]

When new information is received

(1.1) If an accused is charged with an offence and a new information, charging the same offence or an included offence, is received while the accused is subject to an order for detention, release order, appearance notice, summons or undertaking, section 507 [process on justice receiving an information] or 508 [justice to hear informant and witnesses], as the case may be, does not apply in respect of the new information and the order for detention, release order, appearance notice, summons or undertaking applies in respect of the new information.

When direct indictment preferred

(1.2) If an accused is charged with an offence, and an indictment is preferred under section 577 [direct indictments] charging the same offence or an included offence while the accused is subject to an order for detention, release order, appearance notice, summons or undertaking, the order for detention, release order, appearance notice, summons or undertaking applies in respect of the indictment.
[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) added]

CCC


Note up: 523(1.1) and (1.2)

Modifying and Vacating Bail or Remand Orders

The general power to make an order vacating a release order and replace the order with a remand order or new release order is found in s. 523(2).

Bail can be revoked "on cause being shown" on the basis of reasons set out in s. 515(10).[1]

Section 523(2) permits a release or detention order to be vacated and replaced with new one:

523
[omitted (1), (1.1) and (1.2)]

Order vacating previous order for release or detention

(2) Notwithstanding subsections (1) [duration that release conditions apply on replacement information] and (1.1) [consequences on new information is received],

(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 [exclusive jurisdiction offences], 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) [consequences on new information is received], without such consent, at any time
(i) where the accused is charged with an offence other than an offence listed in section 469 [exclusive jurisdiction offences], the justice by whom an order was made under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] or any other justice,
(ii) where the accused is charged with an offence listed in section 469 [exclusive jurisdiction offences], 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 [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] for the interim release or detention of the accused and make any other order provided for in this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.
Provisions applicable to proceedings under subsection (2)

(3) The provisions of sections 517 [Order directing matters not to be published for specified period], 518 [Inquiries to be made by justice and evidence] and 519 [release of accused after show cause hearing] apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2) [power to vacate previous orders], except that subsection 518(2) [release on guilty plea pending sentence] does not apply in respect of an accused who is charged with an offence listed in section 469 [exclusive jurisdiction offences].
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) added]

CCC


Note up: 523(2) and (3)

An application may be made to revoke bail under s. 523 after it has been granted pursuant to ss. 515 or 522 of the Code or after a bail review under s. 520 of the Code.

Section 523(2)(c)(iii) Vacating Old Order and Making New Order

Section 523(2)(c)(iii) provides that "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 [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] for the interim release or detention of the accused and make any other order provided for in this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted."

The provincial court, Youth Justice court and Superior courts have jurisdiction to revoke old orders and make new orders.[2]

Bail Revocation or Modification Upon Arrest for New Charges

See also: Arrest Warrant for Breach of Court Orders

524
[omitted (1) and (2)]

Cancellation

(3) The judge or justice who hears the matter shall cancel a summons, appearance notice, undertaking or release order in respect of the accused if the judge or justice finds that

(a) the accused has contravened or had been about to contravene the summons, appearance notice, undertaking or release order; or
(b) there are reasonable grounds to believe that the accused has committed an indictable offence while being subject to the summons, appearance notice, undertaking or release order.
Detention

(4) If the judge or justice cancels the summons, appearance notice, undertaking or release order, the judge or justice shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why their detention in custody is not justified under subsection 515(10) [justification for detention in custody].

Release order

(5) If the judge or justice does not order that the accused be detained in custody under subsection (4) [breach allegations – remand after cancellation], the judge or justice shall make a release order referred to in section 515 [judicial interim release provisions].

Reasons

(6) If the judge or justice makes a release order under subsection (5) [breach allegations – release after showing cause], the judge or justice shall include in the record a statement of the reasons for making the order, and subsection 515(9) [sufficiency of record] applies with any modifications that the circumstances require.

Release

(7) If the judge or justice does not cancel the summons, appearance notice, undertaking or release order under subsection (3) [breach allegations – cancellation of prior order], the judge or justice shall order that the accused be released from custody.

Provisions applicable to proceedings under this section

(8) The provisions of sections 516 to 519 [select provisions relating to bail] apply with any modifications that the circumstances require in respect of any proceedings under this section, except that subsection 518(2) [release on guilty plea pending sentence] does not apply in respect of an accused who is charged with an offence mentioned in section 469.

[omitted (9) and (10)]
R.S., 1985, c. C-46, s. 524; 1999, c. 3, s. 33; 2019, c. 25, s. 234.
[annotation(s) added]

CCC


Note up: 524(3), (4), (5), (6), (7), and (8)

Standard of Proof

The standard of proof under s. 524 is on proof of "reasonable ground" while under s. 524(b) is on proof of balance of probabilities.[1]

Section 469 Offences

When an accused is granted bail in relation to any charge of murder (or any s 469 offences) and the accused is subsequently arrested for breach of recognizance, "the superior court has jurisdiction, whether under section 524(4) or under section 521 of the Criminal Code, to revoke the accused's bail on the murder charges”.[2]

  1. R v Garnier, 2017 NSSC 102 (CanLII), per Rosinski J, at paras 18 to 19
  2. Wright, ibid.

Reviewing Order

524
[omitted (1), (2), (3), (4), (5), (6), (7) and (8)]

Review — order by judge

(9) An order made under subsection (4) [breach allegations – remand after cancellation] or (5) [breach allegations – release after showing cause] respecting an accused referred to in paragraph (1)(a) [power of justice to hear breach allegations – where released on 469 offence] is not subject to review except as provided in section 680 [review by court of appeal].

Review — order of justice

(10) An order made under subsection (4) [breach allegations – remand after cancellation] or (5) [breach allegations – release after showing cause] respecting an accused other than the accused referred to in paragraph (1)(a) [power of justice to hear breach allegations – where released on 469 offence], is subject to review under sections 520 [accused-requested bail review] and 521 [crown-requested bail review] as if the order were made under section 515 [judicial interim release provisions].

R.S., 1985, c. C-46, s. 524; 1999, c. 3, s. 33; 2019, c. 25, s. 234.
[annotation(s) added]

CCC


Note up: 524(9) and (10)

Revoking Bail Upon Finding of Guilt

Upon finding of guilt the judge has discretion in whether to revoke bail.[1]

Period for which appearance notice, etc., continues in force

523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)], the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3) [release of accused on s. 469 offences], until his trial is completed; or
(b) in any other case,
(i) until his trial is completed, and
(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 [Pt. XXI — appeals — definitions] is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.


[omitted (1.1), (1.2), (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) added]

CCC


Note up: 523(1)


Discretion can be exercised where:[2]

  • new facts emerge about the index offence;
  • new facts emerge about other offences;
  • likelihood of jail term;

A judge may, on his own accord, revoke bail on conviction.[3]

The lost of the presumption of guilt, alone, does not constitute reason to revoke bail.[4]

  1. R v Yassin, 2012 ONCJ 783 (CanLII), per Renaud J
  2. Yassin, ibid.
  3. Yassin, ibid. ("In this regard, Justice Ducharme added a valuable comment at footnote 4: 'While s. 523(2)(a) would seem to permit a trial judge to act sua sponte, the requirement to show cause means, as a practical matter, that this would rarely be done.'”)
  4. R v Green, 2006 CanLII 27306 (ONSC), per T Ducharme J, at para 15

Vacating Recognizance

Attorney General may direct stay

579 (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
[omitted (2)]
R.S., 1985, c. C-46, s. 579; R.S., 1985, c. 27 (1st Supp.), s. 117.

CCC


Note up: 579(1)

See Also