Bail Review

From Criminal Law Notebook
This page was last substantively updated or reviewed March 2020. (Rev. # 96418)

Superior Court Bail Review

See also: Section 525 Detention 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.

A bail review under s. 520 and 521 is a hybrid process between an appeal and a de novo hearing.[1]

  1. ↑ R v St. Cloud, 2015 SCC 27 (CanLII), [2015] 2 SCR 328, per Wagner J

Accused Application

Section 520 permits the accused to review an order denying bail.

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 order with conditions], (5) [detention in custody], (6) [reverse onus offences], (7) [release order], or (12) [order re no communication on detention] or makes or vacates any order under paragraph 523(2)(b) [power to vacate previous orders – when preliminary inquiry completed], the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.
[omitted (2), (3), (4), (5), (6), (7), (8) and (9)]
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; 2019, c. 25, s. 230.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 520(1), (7) and (8)


Defined terms: "justice" (s. 493)

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]

  1. ↑ R v Singh Garcha, 2004 SKQB 92 (CanLII), 246 Sask R 42, per Wilkinson J, at para 19
  2. ↑ Garcha, ibid., at para 19

Evidence

520 [omitted (1), (2), (3), (4), (5) and (6)]

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.

[omitted (8) and (9)]
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; 2019, s. 25, s. 230.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 520(7)

Procedure

520 [omitted (1)]

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) [power to issue arrest warrant for failing to attend bail review application] may be executed anywhere in Canada.
[omitted (7) and (8)]

Application of sections 517, 518 and 519

(9) 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 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; 2019, s. 25, s. 230.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 520(2), (3), (4), (5), (6), and (9)

Results

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

Limitation of further applications

(8) Where an application under this section or section 521 [crown-requested bail review[1]] has been heard, a further or other application under this section or section 521 [crown-requested bail review[2]] 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.
[omitted (9)]
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; 2019, s. 25, s. 230.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 520(8)

  1. ↑ Found elsewhere in this same page.
  2. ↑ Found elsewhere in this same page.

Crown Application

Review of order

521 (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(1) [release order without conditions], (2) [release order with conditions], (7) [release order] or (12) [order re no communication on detention] or makes or vacates any order under paragraph 523(2)(b) [power to vacate previous orders – when preliminary inquiry completed], the prosecutor may, at any time before the trial of the charge, apply to a judge for a review of the order.

[omitted (2), (3), (4), (5), (6), (7), (8), (9) and (10)]
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); 2019, c. 25, s. 231.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 521(1)

Procedure

521
[omitted (1)]

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) [crown-requested bail review – granting application], 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) [crown-requested bail review – failure of accused to attend] or (6) [crown-requested bail review – warrant for detention] may be executed anywhere in Canada.
[omitted (8) and (9)]

Application of sections 517, 518 and 519

(10) 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 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); 2019, c. 25, s. 231.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 521(2), (3), (4), (5), (6), (7), and (10)

Evidence

521
[omitted (1), (2), (3), (4), (5), (6) and (7)]

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 [judicial interim release provisions] that he considers to be warranted.

[omitted (9)]
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); 2019, c. 25, s. 231.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 521(8)


Results

521
[omitted (1), (2), (3), (4), (5), (6), (7) and (8)]

Limitation of further applications

(9) Where an application under this section or section 520 [accused-requested bail review[1]] has been heard, a further or other application under this section or section 520 [accused-requested bail review[2]] 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.
[omitted (10)]
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); 2019, c. 25, s. 231.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 521(9)

Review Analysis

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.[3]

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."[4]

Requirements for Variation

There are only three circumstances where a bail review can 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;

The reviewing court should consider:[6]

  • 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."[7]

  1. ↑ Found elsewhere in this same page.
  2. ↑ Found elsewhere in this same page.
  3. ↑ R v Smith, 2003 SKCA 8 (CanLII), 171 CCC (3d) 383, per curiam citing R v Lahooti, 1978 CanLII 2377 (ON SC), 38 CCC (2d) 481 (Ont.H.C.J.), per Reid J
    R v Saracino, 1989 CanLII 7197 (ON SC), 47 CCC (3d) 185, per Doherty J
  4. ↑ R v St-Cloud, 2015 SCC 27 (CanLII), [2015] 2 SCR 328, per Wagner J, at paras 91, 92
  5. ↑ St. Cloud, ibid., at para 121 ("It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.")
    R v Desjarlais, 2022 NWTSC 22 (CanLII), at para 17
  6. ↑ St-Cloud, ibid., at paras 130 to 138
  7. ↑ St-Cloud, ibid., at para 138

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.[1] New evidence should be considered (or not considered) if:[2]

  1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial . . . .
  2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
  3. The evidence must be credible in the sense that it is reasonably capable of belief, and
  4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

Important to the assessment of "material change in circumstances" "depends on the actual considerations that underpinned the first bail judge's refusal of bail."[3]

Where the four criteria are made out, the judge may assess bail "as if he or she were the initial decision maker."[4]

The change of a proposed surety will not necessarily amount to a change of circumstances.[5] A mere change in release plan is not one either.[6]

The change must be one that is "material."[7]

However, where new sureties have become available, this can be used as a basis for a finding of a "change in circumstances."[8]

Forum Shopping

Subsequent bail applications cannot be seen to be used as means through which there is "forum-shopping."[9] They would not be a "further bite at the apple." [10]

  1. ↑ St-Cloud, ibid., at paras 128, 129
  2. ↑ St-Cloud, ibid., at para 128
  3. ↑ R v Whyte, 2014 ONCA 268 (CanLII), 310 CCC (3d) 335, per Tulloch JA, at para 26
  4. ↑ St-Cloud, supra, at para 138
  5. ↑ R v Ferguson, [2002] OJ No 1969 (SC)(*no CanLII links) , per Hill J ("Simply re-shuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it be reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention. For example, in R v Baltovich, (2000) 2000 CanLII 5680 (ON CA), 131 OAC 29 at para. 33 Rosenberg JA, considered the post-detention changes in surety availability to be significant enough to constitute a material change." ))
  6. ↑ St. Cloud, supra, at paras 127 to 138
  7. ↑ Baltovich, supra ("In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relatively material. ")
  8. ↑ Whyte, 2014 ONCA 268 at paras. 25-26
    R. v. Jackson, 2023 ONSC 5083 (CanLII), at para 21, <https://canlii.ca/t/k03gg#par21>, retrieved on 2024-08-11
  9. ↑ R v Ledesma, 2019 ABCA 60 (CanLII), at para 33, <https://canlii.ca/t/hxn9p#par33>, retrieved on 2024-08-11
    Sarancino, 1989 CanLII 7197 (ON SC), [1989] OJ No 28 at para 18, 47 CCC (3d) 185 (Sup Ct).
  10. ↑ R v Seti-Mayinga, [2001] OJ No 6335 at para 28, 54 WCB (2d) 121 (Sup Ct

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 [bail for s. 469 offences], a decision made under subsections 524(3) to (5) [procedure upon appearing after breach] with respect to an accused referred to in paragraph 524(1)(a) [power of justice to hear breach allegations – where released on 469 offence] or a decision made by a judge of the court of appeal under section 320.25 [an order staying a driving prohibition order] or 679 [release pending appeal] 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 another decision that, 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) [review by court of appeal re certain decisions] 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 2019, c. 25, s. 280; 2019, c. 25, s. 402; 2022, c. 17, s. 42.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 680(1), (2) and (3)

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), 188 BCAC 235, per Finch CJ, at para 17
  2. ↑ Uppal, ibid., at para 17
  3. ↑ R v Kuol, 2013 ABCA 380 (CanLII), 561 AR 332, per curiam

Bail Review Where Trial is Delayed

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