Bail Review

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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:

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 on undertaking with conditions, etc.], (5) [Detention in custody], (6) [ Order of detention], (7) [Order of release], (8) [release on undertaking or recognizance, non-resident] or (12) [Order re no communication] 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.
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) may be executed anywhere in Canada.
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.

Limitation of further applications
(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.
Application of sections 517, 518 and 519
(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.
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.

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Review of order
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.
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), 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) or (6) may be executed anywhere in Canada.
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 that he considers to be warranted.

Limitation of further applications
(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.
Application of sections 517, 518 and 519
(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.
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).

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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.

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. 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.

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".

There are only three circumstances where a bail review can vary an order:

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;

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.

The reviewing court should consider:

• 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".

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

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 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,

(a) vary the decision; or

(b) substitute such other decision as, 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) 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.

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The test for leave to review bail requires that:

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.

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.

Bail Review Where Trial is Delayed

Where a detained accused's trial has been delayed, the court must review bail.

Section 525 states:

Time for application to judge
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.
Notice of hearing
(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
(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.
Order
(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.
Warrant of judge for arrest
(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.
Arrest without warrant by peace officer
(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.
Hearing and order
(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.
Provisions applicable to proceedings
(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.
Directions for expediting trial
(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.
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.

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Directions for expediting proceedings
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.
R.S., 1985, c. C-46, s. 526; R.S., 1985, c. 27 (1st Supp.), s. 91.

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The relevant offence must be one other than an offence under 469.

Purpose
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". It should "facilitate the obtaining of bail and the review of bail applications when originally refused".

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."

The section provides "oversight of delays in the trial process even where the defence does not desire a bail review hearing".

Procedure
The onus is upon the same party who had the onus that the initial bail hearing.