Bail Review in Ontario

A bail review is an application to the Superior Court of Justice to review a bail decision made in the Ontario Court of Justice. The accused can apply under section 520 of the Criminal Code to review a detention order or the conditions of release, and the Crown can apply under section 521 to review a release.

A review is not simply a second try. In R. v. St-Cloud, the Supreme Court of Canada explained that a reviewing judge can intervene only where the original justice made an error of law, the decision was clearly inappropriate, or there is new evidence showing a material change in circumstances.

• Error of law. For example, applying the wrong onus or the wrong test for one of the grounds of detention.
• Clearly inappropriate decision. The justice gave too much or too little weight to relevant factors.
• Material change in circumstances. New, relevant information such as a stronger release plan, a new surety, treatment availability or a change in the case against the accused.

Often the strongest reviews combine a clear legal argument with a materially improved release plan.

• A transcript of the original bail hearing and the reasons for decision
• An affidavit from the accused, and often from proposed sureties
• The information or charging document and any record relied on
• A factum or written argument setting out the grounds
• A detailed release plan with supporting documents

Ordering transcripts and preparing affidavits takes time, so the review is not instant. Our team starts gathering materials as soon as a detention order is made if a review may be needed.

Separately from a bail review, section 525 of the Criminal Code requires that a person detained awaiting trial have their detention reviewed by a judge after a set period, which is 90 days for indictable offences. In R. v. Myers, the Supreme Court of Canada held that this review is automatic and that the judge asks whether continued detention is justified, considering any unreasonable delay. The jailer is required to apply for the hearing; it does not depend on the accused asking.

Ask for the date of the decision and the courthouse, find out who the proposed sureties were, and keep a list of anything that has changed since the hearing, such as a new place to live or a person willing to act as surety.

Book a consultation online (30 minutes, $150 plus HST, paid when you book) or call (647) 271-1646. The phone is answered 24 hours a day, so a family member can call as soon as someone is arrested.