Bail Hearings (Until December 18, 2019)
| This page was last substantively updated or reviewed January 2020. (Rev. # 92292) |
General Principles
The purpose of a "show cause" hearing (or "bail hearing") is to provide an expeditious hearing that is flexible and procedurally informal while still protecting the liberty interests and security of the public.[1]
A bail hearing is not is not meant to like a trial or adopt a sort of complexity.[2]
The key elements of bail hearings are that they are done in a timely manner. This requires a "certain level of informality" including relaxed rules of evidence and expansive application of relevance.[3]
Section 493 defines a "judge" within the provisions of bail as:
493 In this Part,
...
"judge" means
- (a) in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province,
- (b) in the Province of Quebec, a judge of the superior court of criminal jurisdiction of the province or three judges of the Court of Quebec,
- (c) [Repealed, 1992, c. 51, s. 37]
- (d) in the Provinces of Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta and Newfoundland and Labrador, a judge of the superior court of criminal jurisdiction of the Province,
- (e) in Yukon and the Northwest Territories, a judge of the Supreme Court, and
- (f) in Nunavut, a judge of the Nunavut Court of Justice;
...
R.S., 1985, c. C-46, s. 493; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 5, c. 17, s. 12; 1992, c. 51, s. 37; 1994, c. 44, s. 39; 1999, c. 3, s. 30; 2002, c. 7, s. 143; 2015, c. 3, s. 51.
A bail judge is not a "court of competent jurisdiction" for the purpose of Charter violations.[4] Thus, a bail hearing is not the forum for s. 24 Charter relief. Evidence going towards a breach is not relevant.[5] Similarly, applications for prerogative writs such as habeas corpus do not apply.[6]
- ↑ R v Ghany, 2006 CanLII 24454 (ON SC), 40 CR (6th) 290, per Dunro J, at para 59
- ↑ Ghany, ibid., at para 59
- ↑ Ghany, ibid., at para 62 citing Law of Bail in Canada
- ↑ See Criminal Code and Related Definitions
- ↑
Ghany, supra, at para 62
R v Reimer (1987) 2 WCB (2d) 94 (MBCA)(*no CanLII links) - ↑
R v Pearson, 1992 CanLII 52 (SCC), 77 CCC (3d) 124, per Lamer CJ
R v Morales, 1992 CanLII 53 (SCC), 77 CCC (3d) 91, per Lamer CJ
Burden of Proof
The burden of proof is presumed to be on the crown on a balance of probabilities.[1] The burden is upon the Crown to establish that one of the three grounds for denying bail has been made out unless the offence is one that engages the reverse onus.
- ↑ R v Julian (1972) 20 CRNS 227 (NSSC)(*no CanLII links)
Reverse Onus
Application to Adjourn Bail Hearing
On application of the prosecutor, a judge has the discretion to delay a bail hearing by up to three days without the consent of the accused. (s. 516)
- Remand in custody
516 (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.
- Detention pending bail hearing
(2) A justice who remands an accused to custody under subsection (1) or subsection 515(11) may order that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary.
R.S., 1985, c. C-46, s. 516; 1999, c. 5, s. 22, c. 25, s. 31(Preamble).
Where an accused has been brought before a judge within the 24 hour window and both the defence and Crown are prepared, the judge must begin the hearing "forthwith". The accused should not have to "make an appointment" to have a bail hearing.[1]
"[U]nreasonably prolonged custody awaiting a bail hearing" can be a form of unjustified detention.[2] Routine adjournments that are not at the request of Crown or defence are "unacceptable threat to constitutional rights, a denial of access to justice, and an unnecessary cost to the court system."[3] Pleading "lack of resources" is not an answer to imperilling such rights.[4]
Evidence
Publication Ban
Section 517 permits a publication ban upon all evidence presented at a bail hearing:
- Order directing matters not to be published for specified period
517 (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
- (a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
- (b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
- Failure to comply
(2) Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 17]
R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.
This section was found to violate s. 7 of the Charter for violating the freedom of expression but was saved by s. 1 of the Charter and is therefore constitutional.[1]
- ↑ Toronto Star Newspapers Ltd. v Canada, 2009 ONCA 59 (CanLII), 239 CCC (3d) 437, per Feldman JA (3:2)
Decision to Deny Bail
515
[omitted (1), (2), (2.1), (2.2), (3), (4), (4.1), (4.11), (4.12), (4.2) and (4.3)]
- Detention in custody
(5) Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall include in the record a statement of his reasons for making the order.
[omitted (6), (6.1), (7), (8), (9), (9.1), (10), (11), (12), (13) and (14)]
Release on Guilty Plea During Bail Hearing
518
[omitted (1)]
- Release pending sentence
(2) Where, before or at any time during the course of any proceedings under section 515, the accused pleads guilty and that plea is accepted, the justice may make any order provided for in this Part for the release of the accused until the accused is sentenced.
R.S., 1985, c. C-46, s. 518; R.S., 1985, c. 27 (1st Supp.), ss. 84, 185(F); 1994, c. 44, s. 45; 1999, c. 25, s. 9(Preamble).