Revoking, Terminating, or Replacing Bail or Remand Orders

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2021. (Rev. # 95564)

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]

  1. ↑ R v Wright, 2014 ONSC 3035 (CanLII), OJ No 2181, per Nordheimer J, at para 4

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 (ss. 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 (CanLII), (DOJ)

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 a "Replacement" Information or Indictment

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 (CanLII), (DOJ)

Note up: 523(1.1) and (1.2)

Modifying and Vacating Bail or Detention Absent Misconduct

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 (ss. 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 (ss. 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 (ss. 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 (CanLII), (DOJ)

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 (ss. 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 (ss. 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]

  1. ↑ R v Green, 2006 CanLII 27306 (ON SC), 210 CCC (3d) 543, per T Ducharme J, at para 8
  2. ↑ R v XX, 2018 ONCJ 820 (CanLII), per Cohen J, at para 46

Release Detainee Mid-Trial (523(2)(a))

Section 523(2)(a) permits a trial judge to revisit the matter of bail mid-trial.[1] This appears to be the only available mechanism to consider bail once the trial has started.[2]

It is effectively a form of review.[3] It is not a de novo bail hearing.[4] It is necessary that the accused show there was a material change of circumstances that requires the original order to be set aside.[5] The new evidence must "put the criteria for release or detention in a markedly different perspective" and make the previous decision "unsustainable."[6]

The onus of proof is on the party bringing the application.[7]

The mere fact that the trial judge has heard some potentially prejudicial evidence does not prevent them from considering bail.[8]

Whether to re-consider bail under 523(2) is discretionary under the principles of Part XVI of the Code.[9]

Revoking Bail Upon Finding of Guilt/Conviction

Upon finding of guilt the judge has discretion in whether to revoke bail.[10]

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 (ss. 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 (CanLII), (DOJ)

Note up: 523(1)

The power to revoke bail post-conviction arises from s. 523(2).[11]

The burden remains on the Crown to establish that the accused should be incarcerated immediately.[12]

Discretion can be exercised where:[13]

  • 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.[14]

The lost of the presumption of guilt, alone, does not constitute reason to revoke bail.[15]

  1. ↑ R v Cook, 2020 ONSC 2055 (CanLII) (working hyperlinks pending), per Mew J, at para 9 ("[t]his section has been described as a deliberate legislative choice to confer upon the trial judge the authority to alter an accused's judicial interim release status as the trial proceedings unfold")
    R v PO, 2020 ABQB 355 (CanLII) (working hyperlinks pending), per Mandziuk J, at para 21
    R v Patterson, 1985 ABCA 73 (CanLII), 19 CCC (3d) 149, per Kerans JA, at para 13
  2. ↑ PO, supra, at para 24
  3. ↑ PO, supra, at para 24
    R v Passera, 2017 ONCA 308 (CanLII), 352 CCC (3d) 478, per curiam, at para 15
  4. ↑ PO, supra, at paras 24 and 27
    R v Prete, [1987] OJ No 2480 at para 4(complete citation pending)
    R v Ibrahim, 2009 ONCJ 385 (CanLII) at para 18(complete citation pending)
  5. ↑ PO, supra, at para 24
    R v Swierkot, 2019 QCCQ 6098 (CanLII), per Galiatsatos J, at para 76
    R v Tse, 2008 BCSC 1022 (CanLII), per Davies J, at paras 17 to 18
  6. ↑ Swierkot, ibid., at para 76
    R v Piazza, 2014 QCCQ 2156 (CanLII) (working hyperlinks pending), per Healy J, at para 4
  7. ↑ PO, supra, at para 27
    R v BTQ, 2018 ABQB 715 at par 18
    R v Aucoin, 2006 ABQB 895 (CanLII), 411 AR 295, per Wachowich J, at para 33
  8. ↑ PO, supra, at para 22
  9. ↑ PO, supra, at para 23
  10. ↑ R v Yassin, 2012 ONCJ 783 (CanLII), per Renaud J
  11. ↑ R v Tsega, 2021 ONSC 1129 (CanLII), per S. Gomery J, at para 8
  12. ↑ Tsega, ibid., at para 8
  13. ↑ Yassin, ibid.
  14. ↑ 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.'”)
  15. ↑ R v Green, 2006 CanLII 27306 (ON SC), 210 CCC (3d) 543, per T Ducharme J, at para 15

Bail Revocation or Cancellation Upon Alleged Misconduct

See also: Arrest Warrant for Breach of Court Orders

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 (CanLII), (DOJ)

Note up: 579(1)

See Also

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