Bail Revocation and Termination (Until December 18, 2019)

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This page was last substantively updated or reviewed January 2020. (Rev. # 92193)

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) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of 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, promise to appear, summons, undertaking or recognizance 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, promise to appear, summons, undertaking or recognizance 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), 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 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), (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.
[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 New Information or Indictment Charging Same Offence(s)

523
[omitted (1)]

Where new information charging same offence

(1.1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, a new information, charging the same offence or an included offence, is received, 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 interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the new information.

When direct indictment is preferred charging same offence

(1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 [direct indictments] charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 523(1.1) and (1.2)

Bail Modification and Vacating Bail Orders

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) and (1.1),

(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), 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 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 for the interim release or detention of the accused and make any other order provided for in this Part 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, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in section 469.
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.
[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.

Bail Revocation Upon Arrest for New Charges

See also: Arrest Warrant for Breach of Court Orders

Section 524(1) and (2) authorizes a judge or justice to issue a warrant of arrest where there is grounds to believe that the accused has breached a court order.[2]

524
[omitted (1) and (2)]

Hearing

(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall

(a) where the accused was released from custody pursuant to an order made under subsection 522(3) [release of accused on s. 469 offences] by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or
(b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.
Retention of accused

(4) Where an accused described in paragraph (3)(a) is taken before a judge and the judge finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10) [justification for detention in custody].


Release of accused

(5) Where the judge does not order that the accused be detained in custody pursuant to subsection (4), he may 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) [release on bail] with such conditions described in subsection 515(4) or, where the accused was at large on an undertaking or a recognizance with conditions, such additional conditions, described in subsection 515(4), as the judge considers desirable.

Order not reviewable

(6) Any order made under subsection (4) or (5) is not subject to review, except as provided in section 680 [review by court of appeal].

Release of accused

(7) Where the judge does not make a finding under paragraph (4)(a) or (b), he shall order that the accused be released from custody.

Powers of justice after hearing

(8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10) [justification for detention in custody].

Release of accused

(9) Where an accused shows cause why his detention in custody is not justified within the meaning of subsection 515(10) [justification for detention in custody], the justice shall 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) [release order with conditions] with such conditions, described in subsection 515(4) [permissible conditions on release order], as the justice considers desirable.

Reasons

(10) Where the justice makes an order under subsection (9), he shall include in the record a statement of his reasons for making the order, and subsection 515(9) is applicable with such modifications as the circumstances require in respect thereof.

Where justice to order that accused be released

(11) Where the justice does not make a finding under paragraph (8)(a) or (b), he shall order that the accused be released from custody.

Provisions applicable to proceedings under this section

(12) 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 this section, except that subsection 518(2) does not apply in respect of an accused who is charged with an offence mentioned in section 522 [bail for s. 469 offences].

Certain provisions applicable to order under this section

(13) Section 520 [accused-requested bail review] applies in respect of any order made under subsection (8) or (9) as though the order were an order made by a justice or a judge of the Nunavut Court of Justice under subsection 515(2) [release order with conditions] or (5) [detention in custody], and section 521 [crown-requested bail review] applies in respect of any order made under subsection (9) as though the order were an order made by a justice or a judge of the Nunavut Court of Justice under subsection 515(2) [release order with conditions].
R.S., 1985, c. C-46, s. 524; 1999, c. 3, s. 33.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 524(3), (4), (5), (6), (7), (8), (9), (10), (11), (12), and (13)

Standard of Proof

The standard of proof under s. 524(a) is on proof of "reasonable ground" while under s. 524(b) is on proof of balance of probabilities.[3]

Section 469 Offences

When an accused is granted bail in relation to any charge of murder (or any s 469 offences) and the accused is subsequently arrested for breach of recognizance, "the superior court has jurisdiction, whether under section 524(4) or under section 521 of the Criminal Code, to revoke the accused's bail on the murder charges”.[4]

  1. ↑ R v Green, 2006 CanLII 27306 (ON SC), 210 CCC (3d) 543, per T Ducharme J, at para 8
  2. ↑ See Arrest Warrants for Accused Persons for details
  3. ↑ R v Garnier, 2017 NSSC 102 (CanLII), per Rosinski J, at paras 18 to 19
  4. ↑ Wright, ibid.

Revoking Bail Upon Finding of Guilt

Upon finding of guilt the judge has discretion in whether to revoke bail.[1]

Discretion can be exercised where:[2]

  • 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.[3]

The lost of the presumption of guilt, alone, does not constitute reason to revoke bail.[4]

  1. ↑ R v Yassin, 2012 ONCJ 783 (CanLII), per Renaud J
  2. ↑ Yassin, ibid.
  3. ↑ 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.'”)
  4. ↑ R v Green, 2006 CanLII 27306 (ON SC), 210 CCC (3d) 543, per T Ducharme J, at para 15

Revocation of s. 525 Release Upon Breach of Conditions

A person released under s. 525(4) may have their release revoked pursuant to s. 525(5) to (8).

s. 525
[omitted (1), (2), (3) and (4)]

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 [Order directing matters not to be published for specified period and Failure to comply], 518 [Inquiries to be made by justice and evidence and Release pending sentence] and 519 [Orders of release and orders of committal] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 525(5), (6), (7), (8), and (9)

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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