Bail Review: Difference between revisions

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[[fr:Révision_de_la_mise_en_liberté_sous_caution]]
{{Currency2|March|2020}}
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==Superior Court Bail Review==
==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 under s. 515 or 523. Sections s. 520 and 521 state in part:
{{Seealso|Section 525 Detention Review}}
{{Quotation|
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.  
'''Review of order'''<br>
 
520. (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) 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.
A bail review under s. 520 and 521 is a hybrid process between an appeal and a ''de novo'' hearing.<REf>
{{CanLIIRP|St. Cloud|ghtd9|2015 SCC 27 (CanLII)|[2015] 2 SCR 328}}{{perSCC|Wagner J}}
</ref>
 
{{reflist|2}}
==Accused Application==
Section 520 permits the accused to review an order denying bail.
 
{{quotation3|
; Review of order
520 (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2) {{AnnSec5|515(2)}}, (5) {{AnnSec5|515(5)}}, (6) {{AnnSec5|515(6)}}, (7) {{AnnSec5|515(7)}}, or (12) {{AnnSec5|515(12)}} or makes or vacates any order under paragraph 523(2)(b) {{AnnSec5|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.
<br>
<br>
'''Notice to prosecutor'''<br>
{{removed|(2), (3), (4), (5), (6), (7), (8) and (9)}}
(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.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 520;
<br>
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 86;
'''Accused to be present'''<br>
{{LegHistory90s|1994, c. 44}}, s. 46;
(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.
{{LegHistory90s|1999, c. 3}}, s. 31;
<br>
{{LegHistory10s|2019, c. 25}}, s. 230.
'''Adjournment of proceedings'''<br>
{{Annotation}}
(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.
|{{CCCSec2|520}}
<br>
|{{NoteUp|520|1|7|8}}
'''Failure of accused to attend'''<br>
|{{Terms-
(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.
|[[Definition of Judicial Officers and Offices|"justice" (s. 493)]]
<br>
}}
'''Execution'''<br>
}}
(6) A warrant issued under subsection (5) may be executed anywhere in Canada.
 
<br>
; Burden
'''Evidence and powers of judge on review'''<br>
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.<ref>
{{CanLIIRP|Singh Garcha|1gvqp|2004 SKQB 92 (CanLII)|246 Sask R 42}}{{perSKQB|Wilkinson J}}{{atL|1gvqp|19}}
</ref>
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.<ref>
{{ibid1|Garcha}}{{atL|1gvqp|19}}</ref>
 
{{Reflist|2}}
===Evidence===
{{quotation2|
520
{{removed|(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
(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,
:(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,
Line 30: Line 53:
:(d) dismiss the application, or
:(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.
:(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.
{{removed|(8) and (9)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 520;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 86;
{{LegHistory90s|1994, c. 44}}, s. 46;
{{LegHistory90s|1999, c. 3}}, s. 31;
{{LegHistory10s|2019, s. 25}}, s. 230.
{{Annotation}}
|{{CCCSec2|520}}
|{{NoteUp|520|7}}
}}


'''Limitation of further applications'''<br>
===Procedure===
(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.
{{quotation2|
520
{{removed|(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.
<br>
; 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.
<br>
; 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.
<br>
<br>
'''Application of sections 517, 518 and 519'''<br>
; Failure of accused to attend
(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.
(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.
<br>
<br>
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.|
; Execution
(6) A warrant issued under subsection (5) {{AnnSec5|520(5)}} may be executed anywhere in Canada.<br>
{{removed|(7) and (8)}}
; Application of sections 517, 518 and 519
(9) The provisions of sections 517 {{AnnSec5|517}}, 518 {{AnnSec5|518}} and 519 {{AnnSec5|519}} apply with such modifications as the circumstances require in respect of an application under this section.
 
R.S., {{LegHistory80s|1985, c. C-46}}, s. 520;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 86;
{{LegHistory90s|1994, c. 44}}, s. 46;
{{LegHistory90s|1999, c. 3}}, s. 31;
{{LegHistory10s|2019, s. 25}}, s. 230.
{{Annotation}}
|{{CCCSec2|520}}
|{{NoteUp|520|2|3|4|5|6|9}}
}}
 
===Results===
{{quotation2|
520
{{removed|(1), (2), (3), (4), (5), (6) and (7)}}
; Limitation of further applications
(8) Where an application under this section or section 521 {{AnnSec5|521A}} has been heard, a further or other application under this section or section 521 {{AnnSec5|521A}} 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.<br>
{{removed|(9)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 520;  
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 86;  
{{LegHistory90s|1994, c. 44}}, s. 46;  
{{LegHistory90s|1999, c. 3}}, s. 31;
{{LegHistory10s|2019, s. 25}}, s. 230.
{{Annotation}}
|{{CCCSec2|520}}
|{{NoteUp|520|8}}
}}
 
{{Reflist|2}}
 
==Crown Application==
{{quotation2|
; Review of order
521 (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(1) {{AnnSec5|515(1)}}, (2) {{AnnSec5|515(2)}}, (7) {{AnnSec5|515(7)}} or (12) {{AnnSec5|515(12)}} or makes or vacates any order under paragraph 523(2)(b) {{AnnSec5|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.
 
{{removed|(2), (3), (4), (5), (6), (7), (8), (9) and (10)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 521;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 87;
{{LegHistory90s|1994, c. 44}}, s. 47;
{{LegHistory90s|1999, c. 3}}, s. 32.
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 88;
{{LegHistory90s|1991, c. 40}}, s. 32;
{{LegHistory90s|1994, c. 44}}, s. 48;
{{LegHistory90s|1999, c. 25}}, s. 10(Preamble);
{{LegHistory10s|2019, c. 25}}, s. 231.
{{Annotation}}
|{{CCCSec2|521}}
|{{NoteUp|521|1}}
}}
}}


{{quotation|
===Procedure===
'''Review of order'''<br>
{{quotation2|
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.
521<br>
<br>
{{Removed|(1)}}
'''Notice to accused'''<br>
; 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.
(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.
<br>
<br>
'''Accused to be present'''<br>
; 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.
(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.
<br>
<br>
'''Adjournment of proceedings'''<br>
; 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.
(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.
<br>
<br>
'''Failure of accused to attend'''<br>
; 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.
(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.
<br>
<br>
'''Warrant for detention'''<br>
; 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.
(6) Where, pursuant to paragraph (8)(e) {{AnnSec5|521(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.
<br>
; Execution
(7) A warrant issued under subsection (5) {{AnnSec5|521(5)}} or (6) {{AnnSec5|521(6)}} may be executed anywhere in Canada.
<br>
<br>
'''Execution'''<br>
{{removed|(8) and (9)}}
(7) A warrant issued under subsection (5) or (6) may be executed anywhere in Canada.
 
; Application of sections 517, 518 and 519
(10) The provisions of sections 517 {{AnnSec5|517}}, 518 {{AnnSec5|518}} and 519 {{AnnSec5|519}} apply with such modifications as the circumstances require in respect of an application under this section.
<br>
<br>
'''Evidence and powers of judge on review'''<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 521;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 87;
{{LegHistory90s|1994, c. 44}}, s. 47;
{{LegHistory90s|1999, c. 3}}, s. 32.
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 88;
{{LegHistory90s|1991, c. 40}}, s. 32;
{{LegHistory90s|1994, c. 44}}, s. 48;
{{LegHistory90s|1999, c. 25}}, s. 10(Preamble);
{{LegHistory10s|2019, c. 25}}, s. 231.
{{Annotation}}
|{{CCCSec2|521}}
|{{NoteUp|521|2|3|4|5|6|7|10}}
}}
 
{{reflist|2}}
 
===Evidence===
 
{{quotation2|
521<br>
{{removed|(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
(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,
:(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,
Line 69: Line 190:
and shall either
and shall either
:(d) dismiss the application, or
:(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.
:(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 {{AnnSec5|515}} that he considers to be warranted.
{{removed|(9)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 521;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 87;
{{LegHistory90s|1994, c. 44}}, s. 47;
{{LegHistory90s|1999, c. 3}}, s. 32.
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 88;
{{LegHistory90s|1991, c. 40}}, s. 32;
{{LegHistory90s|1994, c. 44}}, s. 48;
{{LegHistory90s|1999, c. 25}}, s. 10(Preamble);
{{LegHistory10s|2019, c. 25}}, s. 231.
{{Annotation}}
|{{CCCSec2|521}}
|{{NoteUp|521|8}}
}}
 


'''Limitation of further applications'''<br>
===Results===
(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.
{{quotation2|
<br>
521<br>
'''Application of sections 517, 518 and 519'''<br>
{{removed|(1), (2), (3), (4), (5), (6), (7) and (8)}}
(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.
; Limitation of further applications
<br>
(9) Where an application under this section or section 520 {{AnnSec5|520A}} has been heard, a further or other application under this section or section 520 {{AnnSec5|520A}} 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.<br>
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).
{{removed|(10)}}
|[http://canlii.ca/t/7vf2#sec521 CCC]
R.S., {{LegHistory80s|1985, c. C-46}}, s. 521;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 87;  
{{LegHistory90s|1994, c. 44}}, s. 47;  
{{LegHistory90s|1999, c. 3}}, s. 32.
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 88;  
{{LegHistory90s|1991, c. 40}}, s. 32;  
{{LegHistory90s|1994, c. 44}}, s. 48;  
{{LegHistory90s|1999, c. 25}}, s. 10(Preamble);
{{LegHistory10s|2019, c. 25}}, s. 231.
{{Annotation}}
|{{CCCSec2|521}}
|{{NoteUp|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.<ref>
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.<ref>
R v Smith, [http://canlii.ca/t/5c3s 2003 SKCA 8] citing R v Lahooti (1978), 38 CCC (2d) 481 (Ont.H.C.J.) and R v Saracino (1989), 47 CCC (3d) 185 (Ont.H.C.J.)</ref>
{{CanLIIRP|Smith|5c3s|2003 SKCA 8 (CanLII)|171 CCC (3d) 383}}{{TheCourtSKCA}} citing {{CanLIIRP|Lahooti|htx9r|1978 CanLII 2377 (ON SC)|38 CCC (2d) 481 (Ont.H.C.J.)}}{{perONSC|Reid J}}<br>
{{CanLIIRP|Saracino|gbplx|1989 CanLII 7197 (ON SC)|47 CCC (3d) 185}}{{perONSC|Doherty J}}</ref>


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.<ref>
; Type of Review
R v Singh Garcha, [http://canlii.ca/t/1gvqp 2004 SKQB 92] (CanLII) at para 19
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."<ref>
{{CanLIIRP|St-Cloud|ghtd9|2015 SCC 27 (CanLII)|[2015] 2 SCR 328}}{{perSCC|Wagner J}}{{atsL|ghtd9|91|, 92}}
</ref>
</ref>
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.<ref>
Garcha at para 19</ref>


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".<ref>
; Requirements for Variation
St-Cloud, [http://canlii.ca/t/ghtd9 2015 SCC 27] (CanLII) at para 91, 92
There are only three circumstances where a bail review can vary an order:<ref>
{{ibid1|St. Cloud}}{{AtL|ghtd9|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.")<br>
{{CanLIIRP|Desjarlais|jt6w1|2022 NWTSC 22 (CanLII)}}{{AtL|jt6w1|17}}
</ref>
</ref>
There are only three circumstances where a bail review can be vary an order:<ref>St-Cloud at para 121<br></ref>
# where the justice has erred in law;  
# where the justice has erred in law;  
# 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  
# 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  
# Where there is a material change in circumstances;
# Where there is a material change in circumstances;


'''Material Change in Circumstances'''<br>
The reviewing court should consider:<ref>
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.<ref>
{{ibid1|St-Cloud}}{{atsL|ghtd9|130| to 138}}</ref>
St-Cloud at para 128, 129
</ref>
 
The reviewing court should consider:<ref>St-Cloud at paras 130 to 138</ref>
* due diligence
* due diligence
* relevance
* relevance
Line 110: Line 254:
* affect on the result
* 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".<ref>
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."<ref>
St-Cloud at para 138<br>
{{ibid1|St-Cloud}}{{atL|ghtd9|138}}<br>
</ref>
{{reflist|2}}
===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.<ref>
{{ibid1|St-Cloud}}{{atsL|ghtd9|128|, 129}}
</ref>
New evidence should be considered (or not considered) if:<ref>
{{ibid1|St-Cloud}}{{atL|ghtd9|128}}
</ref>
# The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial . . . .
# The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
# The evidence must be credible in the sense that it is reasonably capable of belief, and
# 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."<ref>
{{CanLIIRP|Whyte|g6dvp|2014 ONCA 268 (CanLII)|310 CCC (3d) 335}}{{perONCA|Tulloch JA}}{{atL|g6dvp|26}}<br>
</ref>
 
Where the four criteria are made out, the judge may assess bail "as if he or she were the initial decision maker."<ref>
{{supra1|St-Cloud}}{{atL|ghtd9|138}}
</ref>
 
The change of a proposed surety will not necessarily amount to a change of circumstances.<ref>
{{CanLIIR-N|Ferguson|, [2002] OJ No 1969 (SC)}}{{perONSC|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." ))
</ref>
A mere change in release plan is not one either.<Ref>
{{supra1|St. Cloud}}{{atsL|ghtd9|127| to 138}}
</ref>
 
The change must be one that is "material."<Ref>
{{supra1|Baltovich}} ("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. ")
</ref>
</ref>


However, where new sureties have become available, this can be used as a basis for a finding of a "change in circumstances."<ref>
Whyte, 2014 ONCA 268 at paras. 25-26<br>
R. v. Jackson, 2023 ONSC 5083 (CanLII), at para 21, <https://canlii.ca/t/k03gg#par21>, retrieved on 2024-08-11
</ref>


; Forum Shopping
Subsequent bail applications cannot be seen to be used as means through which there is "forum-shopping."<ref>
R v Ledesma, 2019 ABCA 60 (CanLII), at para 33, <https://canlii.ca/t/hxn9p#par33>, retrieved on 2024-08-11<br>
Sarancino, 1989 CanLII 7197 (ON SC), [1989] OJ No 28 at para 18, 47 CCC (3d) 185 (Sup Ct).
</ref>
They would not be a "further bite at the apple."
<ref>
R v Seti-Mayinga, [2001] OJ No 6335 at para 28, 54 WCB (2d) 121 (Sup Ct
</ref>
{{reflist|2}}
{{reflist|2}}


==Court of Appeal Bail Review==
==Court of Appeal Bail Review==
An accused can seek a review of the court's decision on bail under s. 680
An accused can seek a review of the court's decision on bail under s. 680
{{quotation|
{{quotation2|
'''Review by court of appeal'''<br>
; 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 261 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,
680 (1) A decision made by a judge under section 522 {{AnnSec5|522}}, a decision made under subsections 524(3) to (5) {{AnnSec5|524(3) to (5)}} with respect to an accused referred to in paragraph 524(1)(a) {{AnnSec5|524(1)(a)}} or a decision made by a judge of the court of appeal under section 320.25 {{AnnSec2|261}} or 679 {{AnnSec6|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
:(a) vary the decision; or
:(b) substitute such other decision as, in its opinion, should have been made.<br>
:(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) {{AnnSec6|680(1)}} may be exercised by a judge of that court.


'''Single judge acting'''<br>
; Enforcement of decision
(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.
<br>
'''Enforcement of decision'''<br>
(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.
(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.
<br>
 
R.S., 1985, c. C-46, s. 680; R.S., 1985, c. 27 (1st Supp.), s. 142; 1994, c. 44, s. 68.
R.S., 1985, c. C-46, s. 680;
|[http://canlii.ca/t/7vf2#sec680 CCC]
R.S., 1985, c. 27 (1st Supp.), s. 142;
{{LegHistory90s|1994, c. 44}}, s. 68;
{{LegHistory10s|2018, c. 21}}, s. 22
{{LegHistory10s|2019, c. 25}}, s. 280;
{{LegHistory10s|2019, c. 25}}, s. 402;
{{LegHistory20s|2022, c. 17}}, s. 42.
{{Annotation}}
|{{CCCSec2|680}}
|{{NoteUp|680|1|2|3}}
}}
}}


The test for leave to review bail requires that:<ref>
The test for leave to review bail requires that:<ref>
R v Uppal, [http://canlii.ca/t/4q5p 2003 BCCA 571] (CanLII) at para 17</ref>
{{CanLIIRP|Uppal|4q5p|2003 BCCA 571 (CanLII)|188 BCAC 235}}{{perBCCA|Finch CJ}}{{atL|4q5p|17}}</ref>
# there is a reasonable prospect of success on review; or
# there is a reasonable prospect of success on review; or
# the court, applying the law, could possibly conclude that the application for release should have been allowed (if bail was denied).  
# 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.<ref>Uppal at para 17</ref>
This is a low standard.<ref>
{{ibid1|Uppal}}{{atL|4q5p|17}}</ref>


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.<ref>
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.<ref>
R v Kuol, [http://canlii.ca/t/g1t4q 2013 ABCA 380] (CanLII)
{{CanLIIRP|Kuol|g1t4q|2013 ABCA 380 (CanLII)|561 AR 332}}{{TheCourtABCA}}
</ref>
</ref>


Line 149: Line 346:


==Bail Review Where Trial is Delayed==
==Bail Review Where Trial is Delayed==
 
* [[Ninety Day Detention Review]]
Where a detained accused's trial has been delayed, the court must review bail.
 
Section 525 states:
{{quotation|
'''Time for application to judge'''<br>
525. (1) Where an accused who has been charged with an offence other than an offence listed in section 469 and who is not required to be detained in custody in respect of any other matter is being detained in custody pending his trial for that offence and the trial has not commenced
:(a) in the case of an indictable offence, within ninety days from
::(i) the day on which the accused was taken before a justice under section 503, or
::(ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision, or
:(b) in the case of an offence for which the accused is being prosecuted in proceedings by way of summary conviction, within thirty days from
::(i) the day on which the accused was taken before a justice under subsection 503(1), or
::(ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision,
 
the person having the custody of the accused shall, forthwith on the expiration of those ninety or thirty days, as the case may be, apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody.
<br>
'''Notice of hearing'''<br>
(2) On receiving an application under subsection (1), the judge shall
:(a) fix a date for the hearing described in subsection (1) to be held in the jurisdiction
::(i) where the accused is in custody, or
::(ii) where the trial is to take place; and
:(b) direct that notice of the hearing be given to such persons, including the prosecutor and the accused, and in such manner as the judge may specify.
 
'''Matters to be considered on hearing'''<br>
(3) On the hearing described in subsection (1), the judge may, in deciding whether or not the accused should be released from custody, take into consideration whether the prosecutor or the accused has been responsible for any unreasonable delay in the trial of the charge.
<br>
'''Order'''<br>
(4) If, following the hearing described in subsection (1), the judge is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10), the judge shall order that the accused be released from custody pending the trial of the charge on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsection 515(4) as the judge considers desirable.
<br>
'''Warrant of judge for arrest'''<br>
(5) Where a judge having jurisdiction in the province where an order under subsection (4) for the release of an accused has been made is satisfied that there are reasonable grounds to believe that the accused
:(a) has contravened or is about to contravene the undertaking or recognizance on which he has been released, or
:(b) has, after his release from custody on his undertaking or recognizance, committed an indictable offence,
he may issue a warrant for the arrest of the accused.
<Br>
'''Arrest without warrant by peace officer'''<br>
(6) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused who has been released from custody under subsection (4)
:(a) has contravened or is about to contravene the undertaking or recognizance on which he has been released, or
:(b) has, after his release from custody on his undertaking or recognizance, committed an indictable offence,
may arrest the accused without warrant and take him or cause him to be taken before a judge having jurisdiction in the province where the order for his release was made.
<br>
'''Hearing and order'''<br>
(7) A judge before whom an accused is taken pursuant to a warrant issued under subsection (5) or pursuant to subsection (6) may, where the accused shows cause why his detention in custody is not justified within the meaning of subsection 515(10), order that the accused be released on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions, described in subsection 515(4), as the judge considers desirable.
<Br>
'''Provisions applicable to proceedings'''<br>
(8) The provisions of sections 517, 518 and 519 apply with such modifications as the circumstances require in respect of any proceedings under this section.
<br>
'''Directions for expediting trial'''<br>
(9) Where an accused is before a judge under any of the provisions of this section, the judge may give directions for expediting the trial of the accused.
<br>
R.S., 1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90;
1994, c. 44, s. 49; 1997, c. 18, s. 61.
|[http://canlii.ca/t/7vf2#sec525 CCC]
}}
 
{{Quotation|
'''Directions for expediting proceedings'''<br>
526 Subject to subsection 525(9), a court, judge or justice before which or whom an accused appears pursuant to this Part may give directions for expediting any proceedings in respect of the accused.
<Br>
R.S., 1985, c. C-46, s. 526; R.S., 1985, c. 27 (1st Supp.), s. 91.
|[http://canlii.ca/t/7vf2#sec526 CCC]
}}
 
The relevant offence must be one other than an offence under 469.<ref>
See s. 525<br>
Includes offences such as Homicide
</ref>
 
'''Purpose'''<br>
The purpose of s. 525 is to "is to prevent the accused from languishing for lengthy periods of time in custody and to ensure a prompt trial".<Ref>
R v Gill, [http://canlii.ca/t/1l26c 2005 CanLII 22214] (ON SC), [2005] O.J. No. 2648 (S.C.J.) (QL), per Hill J. at para 3
</reF> It should "facilitate the obtaining of bail and the review of bail applications when originally refused".<ref>Gill at para 3</ref>
 
The is accomplished by requiring "the Court to monitor the continued detention or the accused to ensure that he is not needlessly detained, and to ensure that there is no unreasonable delay in proceeding with the trial."<ref>
Fraser Regional Correctional Centre v Canada (Attorney General), [1993] BCJ No. 2348 (S.C.)  at para 4</ref>
 
The section provides "oversight of delays in the trial process even where the defence does not desire a bail review hearing".<Ref>
R v Sawrenko, [http://canlii.ca/t/1zgcs 2008 YKSC 27] (CanLII), per Veale J. at para 26</ref>
 
'''Procedure'''<br>
The onus is upon the same party who had the onus that the initial bail hearing.<Ref>
R v Sarkozi, [http://canlii.ca/t/2cvh4 2010 BCSC 1410] (CanLII) -- review of conflicting case law on question of burden
</ref>
 
 
{{reflist|2}}

Latest revision as of 18:57, 9 September 2024

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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